SAN JOSE, Calif. - Over objections from some grassroots community groups, an independent auditing firm concluded that Santa Clara County sheriff's use of tear gas in the jails is appropriate for getting incarcerated people to comply with orders.
That was the essential finding of the OIR Group in a 40-page report submitted this week to the Santa Clara County Board of Supervisors, who will discuss the matter on Tuesday morning.
The Sheriff's Office used tear gas 17 times over the last year on people who refused to obey them, mostly for not taking their court-ordered medication. The OIR Group also said they were impressed with the deputies' calm demeanor, the patience they used and how they negotiated with people first before deploying the chemical agent, sometimes taking up to two days to do so.
"We concur with the Sheriff’s Office findings that the uses of chemical agents in the 17 cases we reviewed were all consistent with current policy.
the auditors noted. "Sixteen deputies articulated and documented sufficient rationale to meet the policy’s required thresholds in the cases we reviewed."
The auditing team also found that "other than the pain and discomfort caused by the chemicals, there were no reported injuries to individuals resulting from any of these force incidents."
The report, authored by Michael Gennaco, Teresa Magula and Julie Ruhlin, was requested by Supervisor Susan Ellenberg, who convinced her colleagues to halt all military purchases until the elected leaders could determine if the use of tear gas in the jails was OK and if all de-escalation techniques were employed first.
Santa Clara County is the only county in the Bay Area to use this chemical compound, called CS, according to a monthlong KTVU investigation.
Other jails, like Solano County, do not use the chemical agent, saying they find other ways to get incarcerated people to take their medication and comply with orders.
Jail reform advocates are outraged by its use, as tear gas can cause respiratory problems, blindness and even death.
"The report by OIR on the use of tear gas in the Santa Clara County jails is shocking," said Robert Konda, executive director of the Asian Law Alliance. " The report fails to question the use of tear gas in the instances they studied. Instead, the report seems to justify the use of tear gas on inmates with mental health related issues. The use of tear gas in almost all of the cases studied involved inmates with mental health issues. The Board of Supervisors needs to intervene and stop the inhumane use of tear gas in the jails."
And Raj Jayadev, founder of Silicon Valley De-Bug, called the OIR report "insulting" and "dangerous."
"This report just sanitizes the idea that using lethal weapons on the incarcerated is OK," he said. "This body was contracted by the county because a groundswell of the community wanted independent oversight of law enforcement and hold them accountable. This report is extremely disturbing because it gives the cloak that this tear gas issue has been reviewed. This actually puts us in a worse place."
Santa Clara County sheriff's officials argue that using tear gas is often better than other means of getting people to comply with demands. Putting "hands on" an incarcerated person might lead to greater harm, they said.
However, the OIR auditors noted eight times out of 17, an emergency response team had to use some level of physical force to restrain the person anyway, even after using tear gas on them.
And in more than half the cases – 11 out of 17 – deputies deployed a second round of chemical agents because they didn't work the first time. In five of these 11, deputies deployed pepper spray too, after the tear gas didn't work.
Still, despite the controversy, the OIR auditors said that in al the 17 cases they reviewed, waiting longer for voluntary compliance – either to take medicine or move to another cell – would have had "significant downsides."
"Individuals who needed medication or more intensive mental health care would have continued to decompensate, complicating future treatment efforts while, in some cases, leaving them in filthy, unsafe, inhumane surroundings," the OIR report stated. "According to current mental health staff, continuing to wait and doing nothing is not an acceptable option."
Despite their overall satisfaction with the tear gas use, the OIR auditors recommended that the sheriff add some more policy guidelines and more explicit use restrictions of the gas.
Some of those suggestions include making sure deputies don't use the tear gas on people with respiratory problems, evaluate whether the gas is being used repeatedly on the same person, and require higher-level authorization for deployment from a lieutenant. The auditors also said that there should be better documentation and reporting of using chemical agents.
The OIR auditors said they reviewed each case by watching video of what happened.
The Sheriff's Office would not release that video to KTVU.
Lisa Fernandez is a reporter for KTVU. Email Lisa at firstname.lastname@example.org or call her at 510-874-0139. Or follow her on Twitter @ljfernandez.