ARBITRATOR EXONERATES AND
REINSTATES
SERGEANT
Arbitrator Alexander Cohn
recently exonerated Santa Clara County Sheriff's Sergeant Steven Gong
from the allegations of excessive force and negligent supervision levied
against him by the County's Department of Correction (DOC) in the Joseph
Leitner incident of July 25, 1995.
Arbitrator Cohn issued a
written decision on August 5, 1997. Gong was represented throughout this
case by LDF panel attorney Larry F. Estrada.
Gong, a Sheriff's
Department employee assigned to the DOC, was supervisor of the intake
area of the county's Main Jail complex in San Jose on the night that
Joseph Leitner was arrested. Leitner was arrested by San Jose police on
July 24, 1995, for outstanding warrants after complaints were received
that he was standing in the street yelling at passing motorists.
Leitner, who had a
history of mental illness, had not taken his prescribed medication
(lithium) at the time of his arrest.
While awaiting processing
at the Main Jail, Leitner spoke to a Marriage, Family and Child
counselor (MFCC) assigned to the jail's intake area. The county had
replaced trained psychiatric nurses with MFCCs to reduce costs.
Leitner told the MFCC
that he had not taken his lithium prescription, that he had consumed
alcohol and marijuana during the last 24 hours, that he wanted to hurt
himself, and that he was having difficulties breathing.
The MFCC told one
correctional officer about Leitner's statements, including Leitner's
threat to hit his own head against the floor, but did not mention the
statement about Leitner's difficulty in breathing.
The county had not
provided training in dealing with physically resistive, mentally ill
inmates to custody staff assigned to the county's jails.
Shortly after midnight,
Leitner began to strike himself. Several officers attempted to restrain
him and prevent him from injuring himself. With the consent of the MFCC,
the officers placed Leitner in a padded safety cell.
Gong was working in his
office when Leitner was escorted to the safety cell, and was called over
to the scene by an officer who began to video tape the incident pursuant
to DOC policy. Shortly thereafter, correctional Sergeant Mitch Conner
arrived in the intake area while conducting a routine tour of the Main
Jail. Conner was assigned as the deck sergeant that day.
While in the safety cell,
Leitner became more violently resistive. He was cleared to remain in the
safety cell by the intake nurse, but he continued his resistance,
injured himself, and began to bleed from his mouth.
The intake nurse checked
him a second time, did not determine the cause of his bleeding, wiped
the blood from Leitner's face and mouth area, and then cleared Leitner
to remain in the safety cell.
Leitner’s resistance
increased with his yelling, screaming and rambling unintelligibly.
After consultation, the MFCC decided to place Leitner on a Sect. 4850
hold and have him escorted to the restraint room on the Main Jail's
eighth floor.
Gong and Conner were
supervising this incident and could not always be seen on the incident
video tape. Conner, who unlike Gong, was trained on the Emergency
Response Team, gave directions to the officers who were attempting to
control Leitner; in particular, Officers Alves and Romney.
Once an inmate is placed
in the safety cell, his clothes must be removed. In order to escort
Leitner to the restraint room, Conner requested a sheet to cover
Leitner's nude body.
Leitner continued his
resistance, completely ignoring the requests of the officers to relax.
As Leitner was still bleeding and appeared to be spitting blood on the
cell floor, Conner directed the officers to place a towel over Leitner's
head to prevent him from spitting blood or other body fluids on the jail
staff.
The officers decided to
carry him face down to the restraint room because he did not respond to
their commands and they did not believe that he would walk without
further resistance, thereby making him more of a safety hazard. As
Leitner was picked up and carried out of the safety cell, Conner was
given a blanket which he draped over Leitner's head.
Up to this point, neither
Gong nor Conner observed any misconduct by the officers who had actual
physical contact with Leitner. In addition, the use of head coverings
such as a towel, sheet or blanket was a common practice in the county
jails at that time.
As the officers began to
carry Leitner to the elevator, the blanket on Leitner's head began to
fall off. Officer Cote picked up the ends of the blanket and wrapped it
around Leitner's head and face, holding it in a manner that did not
obstruct Leitner's ability to breathe.
Leitner was then carried
to a restraint room. Throughout the escort from the safety cell to the
restraint room, Leitner violently resisted the officers' attempts to
control him, and continued to yell and moan.
Once in the restraint
room, Leitner was placed stomach down on the restraint bed, but with his
face turned to his right shoulder - away from the door to the restraint
room where the video camera was located. Sergeants Conner and Gong
followed the escort from the safety cell up to the restraint room, and
again, observed no misconduct by the escorting officers.
After Leitner was placed
on the bed, a nurse spoke to him, but he did not respond. The nurse
did not conduct an assessment, and the officers continued to apply
restraint holds due to the extreme level of resistance that they had
encountered in the safety cell and during the escort.
During the investigation
of this incident, the same nurse stated that Leitner had a bluish tint
to his face, but that she did nothing about it. The nurse then began
applying restraints to Leitner with the assistance of the officers.
During this time, Gong
stepped into the restraint room to see if Leitner was breathing.
Satisfied that Leitner was breathing, he left the room, but remained
just outside the door where he could observe the activity.
The application of the
restraints to Leitner was delayed because the restraint room had not
been prepared prior to Leitner's arrival. While the officers and the
nurse applied restraints to Leitner on the restraint room bed, an
officer observed that Leitner had stopped breathing.
The second nurse
immediately began CPR rescue breathing without first checking Leitner's
airway for obstructions. Officer Alves assisted the nurse with chest
compressions. Paramedics were summoned and Leitner was subsequently
transported to Valley Medical Center. Leitner has been in a coma since
the incident.
The DOC immediately
initiated an Internal Affairs and criminal investigation of this
incident with Gong, Conner, and three officers as the subjects. Within a
week, all five had been placed on paid administrative leave.
Following the criminal
investigation, the Santa Clara County Criminal Grand Jury declined to
indict the correctional officers for criminal misconduct. Neither
sergeant was a suspect in the grand jury proceedings. However, during
the grand jury proceedings, the DOC issued notices of Recommended
Termination to all five men.
Gong was charged with
excessive force, negligent supervision, failure to meet DOC goals, and
inhumane treatment of inmates. Conner was similarly charged, as were the
officers, minus the negligent supervision charge.
This case received
extensive news coverage. The DOC director and deputy director were
quoted in the newspapers stating that the officers and sergeants
violated DOC policies and used unnecessary force on Leitner. Within a
few months, the county settled a lawsuit with Leitner's family
for $1.7 million.
A pre-termination ("Skelly")
hearing was held before Mr. Quaslim Inham, the former DOC director,
who issued a decision sustaining and dismissing some of the charges. The
officers were suspended for 30 days, and sergeants Gong and Conner were
to be demoted to deputy and correctional officer, respectively, and to
be suspended for 30 days.
Inham acknowledged that
the use of head coverings was a common practice in the county jails. The
county twice modified the Skelly decision, ultimately imposing
demotions, but no suspensions, upon both sergeants. All disciplinary
actions were appealed.
In June of this year, the
arbitrator for the correctional officers and Sergeant Conner, Armon
Barsamian, issued a decision exonerating them and ordering reinstatement
to the rank of sergeant for Conner, and rescission of the suspensions
for the three officers.
The arbitration for Gong
lasted 10 days, beginning in June 1996. The county’s case rested on
the incident video and certain command staff's interpretation thereof.
Gong presented evidence
of the common practice of and the training provided in the use of head
coverings upon inmates who spit or bite. Expert witness Steven Osawa,
retired sergeant from the Fremont Police Department, testified that the
control holds used by the officers were consistent with their training
and did not amount to excessive force, particularly given the usual
flexibility and violent resistance of Leitner.
There was evidence that
the Internal Affairs commander, the county's chief witness, had also
used head coverings to pull an inmate from a standing to sitting
position; an incident that the commander did not acknowledge during his
testimony.
The DOC deputy director
denied having seen head coverings used in the county's jails, but was
contradicted by a retired lieutenant. Finally, the county pursued
charges at the appeal that were never part of the disciplinary action.
Arbitrator Cohn
determined that the DOC did not have just cause to demote or discipline
Gong. He found Gong's conduct was consistent with his training and DOC
policies, rules and regulations.
Indeed, he stated ......
a supervisor's conduct must be judged by realities at the time events
occurred, not in hindsight, by unforeseeable results or against
idealized standards." Cohn also noted that the county provided only
speculation as to the cause of Leitner's injury and resultant coma.
In other words, the
county could not prove that the officers and Gong caused Leitner's
injury. Cohn ordered that Gong be reinstated to sergeant with full back
pay, benefits and seniority from the date of his demotion.
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