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We Told You So

Feds Find Long Standing Abuse in County Jail
By Rick Outzen

The Civil Rights Division of the U.S. Department of Justice (DOJ) has concluded its five-year investigation of the Escambia County Jail and its findings are as bad as Sheriff David Morgan tried to warn the Escambia County Commission.

“I’m reminded of the line from the movie ‘Apollo 13’—‘Houston, we have a problem,’” said Morgan in an interview two days after he received the report. “I have told the county, ‘We have a problem.’”

For those people who fought for years against the abuse of force by the Escambia County Sheriff’s Office and seemingly careless disregard for the constitutional rights of its citizens, both inside in the jail and on patrol, the DOJ report was vindication for them and dozens of families that lost loved ones under the administrations of sheriffs Jim Lowman (1992-2000) and Ron McNesby (2001-2008).

For this paper that fought hard against those abuses and survived threats and intimidation to silence our voice, the report affords us the opportunity to say, “We told you so.”

Longstanding Problems

According to the DOJ report, the Escambia County Jail has longstanding conditions that routinely violate the constitutional rights of prisoners. Systematic deficiencies at the facility subject prisoners to “excessive risk of assault by other prisoners and to inadequate mental health care.”

While the report commended Sheriff Morgan for his efforts to reform the facility, DOJ found it woefully understaffed, which made the jail unsafe for both prisoners and detention deputies. The report found prisoner-on-prisoner assaults a common occurrence and stated it was caused “primarily because of a shortage of correctional staff.”

In April, Sheriff Morgan requested in his 2013-2014 budget an additional 83 detention deputies and 12 detention assistants at the cost of $6.3 million. The daily newspaper, Interim County Administrator George Touart and Commission Chairman Gene Valentino blasted the sheriff for doing so.

The DOJ report that was emailed on May 21 to Sheriff Morgan and Touart showed that the sheriff’s budget request for the jail may not be enough to fix the conditions at the jail.

The DOJ report supported the March 2011 staffing study commissioned by the county commission, which also recommended more personnel. The report was never released to the public, because county staff refused to pay the final invoice. When Morgan’s budget was released in April, county staff tried to insinuate that the 2011 data was out-of-date and no longer relevant.

DOJ found those numbers very relevant and demonstrated how the lack of detention and mental health personnel led to unsafe conditions at the jail.

The report also found:

• Jail leadership fails to appropriately monitor and track prisoner-on-prisoner violence and staff-on-prisoner uses of force.
•The “decades-long practice” of segregating black prisoners into black-only housing units was discriminatory and fuels racial tensions.
• Jail does not afford prisoners timely and adequate access to appropriately skilled mental health care professionals.
• Jail fails to provide appropriate medications to mentally ill prisoners.
•The mental health program at the Jail is inadequate. “The dearth of mental health professionals led to excessive risks to prisoners’ safety.”

To remedy the situation, DOJ stated that the jail officials “must take reasonable steps to protect prisoners from physical violence and to provide humane conditions of confinement.”

Staffing and supervision levels must be increased to protect prisoners from violence, video surveillance in critical housing units must be increased and prisoner violence must be monitored and tracked.

The mental health program needs to also be improved with better access to skilled mental health professionals and adequate mental health treatment. Better protections against prisoner suicide need to be implemented.

Sheriff Morgan and the Escambia County Commission have 49 days to reach an agreement with the Department of Justice on how it will correct the staffing and other issues at the county jail. Otherwise the Attorney General may initiate a lawsuit.

“We would prefer, however, to resolve all matters by continuing to work cooperatively with you and are confident that we will be able to do so in this case,” wrote the DOJ in the report’s conclusion.

Dark Days

Susan Watson, the former executive director of the local chapter of the American Civil Liberties Union, and the late Leroy Boyd, founder and president of Movement for Change, are the ones who filed complaints in 2003 and 2006 with the U.S. Attorney General. Their complaints served as the basis for the DOJ investigation.

“We felt that the sheriff’s office had a lot of ‘cowboys’ acting without thought to the constitutional rights of citizens in this community,” said Watson, who now heads the ACLU in Alabama. “We were practically screaming for someone to pay attention.”

According to Watson, the trigger for the 2006 complaint regarding the Escambia Jail was the death of a 65-year-old African-American trucker, Robert Boggon—who died in August 2005 under mysterious circumstances in the Escambia County Jail.

Leroy Boyd tipped us off to the circumstances surrounding Boggon’s death at a meeting at attorney Gene Mitchell’s office. That meeting set our paper on a course that led to us fighting the most powerful politicians and businessmen in Escambia County, including then-Sheriff Ron McNesby and County Administrator George Touart, and nearly put us out of business.

Boggon was arrested after becoming disoriented and knocking over boxes at the Dollar Tree store. Instead of using the Baker Act to have him taken to Lakeview Center for treatment, the deputies jailed him for aggravated assault and criminal mischief.

For 11 days detention deputies used a Taser Gun on him, pepper sprayed him, wrapped pillowcases and towels around his head, gave him shots of drugs to turn him into a zombie, and strapped him into a restraining chair for about 54 hours. On Aug. 29, 2005, while Hurricane Katrina was washing ashore in New Orleans, Boggon was found dead in his cell, naked and strapped to an emergency restraint chair with a towel over his head.

The death became the first of three at the facility over the next 10 months. Sheriff McNesby aggressively fought charges that his staff did anything wrong. The daily newspaper gave him cover. No county commissioners or other elected officials stood up for the victims and their families.

The medical examiner ruled his death a homicide, but no one was prosecuted for his death. The Boggon family filed a civil suit against Sheriff McNesby that was later settled out of court.

McNesby and his hunting buddy Touart did their best to force me to fire Escobedo or they would force me out of business. Hidden cameras took photographs of us marching with Boyd’s Movement for Change to protest the jail deaths. They showed those photos to whoever would listen to their attacks on our credibility.

Those were dark days. We were losing as many advertisers as we were adding every week. I put my frustrations in an Outtakes column (Independent News, “Call In The Feds,” May 18, 2006). At that point, there had been two deaths, Boggon and Hosea Bell. A teenager had been sexually assaulted in the jail. I saw the only solution was for the U.S. Department of Justice to investigate the jail.

“The end result of a Justice Department investigation would be a set of reports from the expert consultants and a summary letter from the Attorney General,” I wrote.

“The ECSO and the county government would have a period to resolve all the issues and problems discovered or risk a federal lawsuit. We can finally move past the blame game and political maneuverings and focus on making the Escambia County Jail the best corrections facility in the state.”

Less than a month later, another man in McNesby’s custody died. Jerry Preyer had been arrested at a bus stop after claiming to be Jesus and attempting to strangle a man. He was jailed on May 31, 2006 after failing to appear in court for his arraignment. Preyer told jail officials that he required medication for schizoid affective disorder.

Without the proper medication, Preyer began to exhibit strange behavior, including removing his clothes, talking incoherently and drinking from a toilet. He was placed in a restraint chair similar to the one in which Boggon died. When he was released from the chair, Preyer began fighting with the officers. After being tased at least four times, he began vomiting and was eventually taken to Baptist Hospital, where he died.

Calling for Federal Help

On July 12, 2006, Citizens Law Enforcement Oversight Committee (CLEO) filed a compliant with the Civil Rights Division of the U.S. Department of Justice “urgently requesting your investigation and action in reference to egregious police patterns and practices and issues of confinement in Escambia County Jail.”

Boyd and Watson formed CLEO to provide some oversight over the Escambia County Sheriff’s Office and investigate claims of abuse and brutality.

In its letter to DOJ, they asserted, “At the hand of sheriff deputies, we have an increase in the number of deaths of citizens in both the field and in the jail. Excessive force complaints have escalated. An alarming number of incidents involve people that are mentally ill.”

The group wrote that McNesby had refused to meet with them and other civil rights organizations over the deaths. It pointed out that since he had taken office there had been 13 deaths.

In the summer of 2006, Boyd was optimistic that DOJ would investigate. We weren’t.

The Bush Administration had showed little interest in civil rights cases. We doubted that a Republican president would investigate a popular Republican sheriff, despite the rising body count.

We were right.

Stars Aligned

The Bush administration had no intention of ever coming to Escambia County, except for votes. A 2009 report revealed that the former head of its Civil Rights Division, Bradley Schlozman, routinely violated federal law and department policy by using political and ideological affiliations in hiring several career attorneys.

Schlozman labeled job applicants as good or bad Americans based on their political leanings or his perceptions of whether they were liberal or conservative. He disfavored applicants with civil rights or human rights experience whom he considered to be overly liberal.

Former Criminal Section Chief Albert Moskowitz, to whom CLEO sent its 2006 complaint, told federal investigators that “the candidates for career positions chosen by Schlozman rarely had any civil rights background, rarely expressed any interest in civil rights enforcement, and had very little or no federal criminal experience.”

The chances of Sheriff McNesby ever being investigated by the Justice Department under President George W. Bush were nil.

Then two unexpected things happened in 2008. David Morgan upset McNesby in the Republican primary and the first African-American, Barack Obama, was elected president.

National Public Radio broadcasted after the momentous national election a story on how the Civil Rights Division of the DOJ was waiting on the Obama Administration to take office so that it could tackle investigations that they had been delaying.

“Civil rights prosecutors also say they are dusting off old investigations that have sat untouched for years,” reported NPR. “They hope new leaders will take interest in those old cases, which makes some companies that have long been under investigation nervous.”

They were right and it didn’t take long for the Obama Administration to act.

In January 2009, Grace Chung Becker, Acting Assistant Attorney General, sent the Escambia County Sheriff’s Office notification that it was launching an investigation that would focus on “use of excessive force by deputies of the ECSO” and on “protection of inmates from harm, including providing adequate medical care, mental health care, protection from inmate violence, and sanitation conditions, as well as use of excessive forces against inmates.”

At his first press conference after being sworn into office, Sheriff Morgan said that he would fully cooperate with the investigations.

“We will give the Department of Justice an open and unfettered look at our operations,” Morgan said.

Boyd sat in the audience. With a huge smile, he told me, “We’ve been waiting for this for a long time.”

Unfortunately, he would die before seeing the final outcome of the DOJ investigation. On Sept. 15, 2010, the founder and head of Movement for Change passed away after a sudden illness.

Susan Watson also attended the press conference. She contacted the Justice Department about Becker’s announcement.

“They told me that it was a new day,” Watson told the IN. “The Bush Administration wasn’t going to investigate and the local politics were too messy. With the election of Morgan, DOJ saw a clean break [from the past] and made the decision to come in.”

Wild West

DOJ first focused on the allegations of excessive force by patrol deputies. In April 2009, investigators informed Morgan of concerns about the lack of supervision over the use of canines by deputies and failure to properly report their use. Sheriff Morgan immediately suspended the K-9 division.

“The DOJ said we needed to bring your training standards up to the standards of the IACP (International Associates of Chiefs of Police),” said Morgan at the time. “Part of the problem was administrative. All of our paperwork was not there for the K-9 unit. They told us that we were so far behind everyone else that it created a problem for the unit.”

After taking the dogs off the street, Morgan brought in David K. Kennedy of the Cincinnati Police Department and a U.S. Police Canine Association Level II trainer to evaluate the progress of the unit and make sure it was up to par. Morgan did not redeploy the canine unit until Kennedy finished his work

“He spent two days here and put them through all the drills and new policies and procedures and basically blessed this unit and said they were ready to be redeployed,” said Morgan.

In September 2012, DOJ issued a Technical Assistance Letter on the alleged deputy misconduct by the Escambia County Sheriff’s Office. The letter commended Morgan for “proactively attempting to address the concerns identified by our experts during our tours and in subsequent outreach.”

However, DOJ experts found ECSO’s policies lacked accuracy, detail and clarity and such shortcomings led to inappropriate applications of force. A new set of well-crafted use of force policies would give deputies a clear understanding of when and how to use force and assist supervisors in guiding the work of deputies, according to the experts.

The report covered the lack of good policies regarding authorized use of Tasers. DOJ found that deputies were too quick to resort to using them, often employing them in the course of arresting passive subjects.

In 2005, the Independent News reported about such abuse by the ECSO and the Pensacola Police Department (Independent News, “Gotcha! Crimefighters’ New Toy,” Feb. 2, 2005). In 2004 alone, deputies used their Tasers 370 times. The paper was told by ECSO that all the uses were justified.

Attorney Patrece Cashwell, who served on the board of CLEO, disagreed. We reported how her client Harold Fountain, age 47, had trouble seeing after being tasered in June 2004 in his left eye when he refused an Escambia deputy’s command to leave his porch.

“Witnesses say they saw flames popping off of him,” Cashwell told the paper for the article. “He was tasered eight times by one officer.”

The DOJ Technical Assistance Letter also cited the need for a crowd control policy to avoid unreasonable amounts of force when wading into difficult crowd situations at Pensacola Beach and area bars. It recommended that deputies complete use of force reports both when using force and when witnessing force used by another deputy.

In conclusion, the DOJ complimented the Morgan administration for its significant progress toward reforming its police practice but warned that further work was needed to better protect the constitutional rights of Escambia County residents.

“In the hierarchy of the notifications you can get as the result of a DOJ investigation, Technical Assistance Letters are the lowest, findings are higher and, of course, they can sue you,” said ECSO Attorney Gerry Champagne. “Findings require follow-up.”

The Escambia County Jail was issued findings.

Righting Past Wrongs in the Jail

For those familiar with the Escambia County Jail, the fact that DOJ found abuse and constitutional rights violations came at no surprise. U.S. Judge Winston Arnow forced the county commissioners in the late 1970s to build a new jail after inmates filed a class action suit charging cruelty and unlawful conditions.

The jail had long been a political football tossed back and forth between the county commission and the sheriff’s office. In 1977, the commissioners took over the old jail that had been built in the 1950s after Arnow’s court order. When the new jail was completed in 1981 on L Street, newly-elected Sheriff Vince Seely was given the jail. Four years later, Seely was handing it back to the commission.

In 1994, the county commission almost considered privatizing the jail. Sheriff Jim Lowman objected and offered to take over the jail. The county commissioners hired in 2007 Justice Concepts Incorporated to study the jail, its staffing and the county’s pre-trial services. The stated goal was to figure out how to transfer the jail back to the county. The plan appeared to be for the county to reassume control of the jail and merge it with the county’s Correction Department and its road camp.

Then McNesby lost the 2008 election.

“I had a lot of people come up to me after the election and tell me that I should turn the jail over to the county,” Sheriff Morgan said. “But I wasn’t going to do that to the citizens.”

Sheriff Morgan said that he wasn’t surprised by the DOJ report and that some of the findings have already been corrected.

“We got an out-briefing every time DOJ came down,” said the sheriff. “When they found an issue, we corrected it. We’ve done that all along, within our current budget and capabilities.”

Not all of his staff was happy with the DOJ report. Morgan called a command staff meeting to explain the agency’s course of action.

“My folks are saying we fixed that,” said Morgan. “Yes, but when DOJ came here, we didn’t have those things. That is their finding. Now we can show them how we corrected the problems.”

Champagne explained the gravity of the DOJ report. “We are on notice here,” he said. “You need to take steps to fix the problem. If something happens as the result of not taking corrective action, then it sets you up for a constitutional lawsuit.”

“This is my notice letter,” said Morgan, holding up the DOJ report. “I’m going to do everything I can to fix this. If I don’t then I could be guilty of not practicing due diligence. That’s how serious this is.”

Morgan has directed Chief Deputy Larry Aiken to take the lead on working out solutions with the county commission, along with Cmdr. Brett Whitlock, who heads the main jail, and Col. Selina Barnes, who runs Central Booking.

“We will go down the findings and say here are our answers to each. We will then sit down with the county administrator and commissioners and go over our ‘get well’ plan.”

The sheriff would like to see his agency, the county commission and DOJ work out a contract on how the findings will be corrected, what funding that will be provided and will set the deliverable dates for the corrective actions.

“I’m not looking for a band-aid, I’m not looking for a work-around,” said Morgan. “I’m looking for a permanent fix to these longstanding problems.”

Morgan said that he plans to request at least half of the amount he originally proposed in budget increases for the jail to show “good faith” with the Department of Justice. He would like to add 20-25 correctional officers as soon as possible.

“We are going to propose a three-to-five-year ‘get well’ plan with appropriate oversight from DOJ,” he said. “We’re on the right track. We’ve got the right people. We can make this happen, but the county has got to adequately fund it.”

Validation

Attorney Todd LaDouceur is optimistic. He represented the Boggon family in its suit against Sheriff McNesby. The suit was eventually settled out of court. LaDouceur told the IN that he is encouraged by the DOJ report and the efforts by Sheriff Morgan to address fundamental problems that have gone on for years.

LaDouceur got involved in civil rights cases because so few local attorneys were willing to challenge the sheriff’s office.

“I’m a Naval Academy graduate, a Marine officer and as conservative as you can get,” he told the IN, “Only in Pensacola would I be considered a liberal.”

When he represented Mark Bailey’s family, the attorney told us when we covered in 2006 the conditions at the jail that he had lost faith in state law enforcement agencies’ investigations of the sheriff’s office.

In Bailey’s case, Escambia guards severely beat him and broke his neck in January 1999, according to witness statements and an independent autopsy, but no one was ever charged criminally in his death because an Escambia County medical examiner ruled Bailey’s bad heart caused his death.

After a coroner’s inquest, an Escambia judge ruled in 2000 that the Escambia County corrections officers’ actions caused or contributed to Bailey’s death. However, prosecutors declined to file charges. The sheriff’s office settled the case out of court in 2002 for an undisclosed amount.

“These issues go back as far as Sheriff Lowman,” said LaDouceur. “When it comes to violating someone’s constitutional rights, there are no close calls. DOJ said in their report that the jail doesn’t pass constitutional muster. That’s serious.”

Susan Watson regrets that Leroy Boyd didn’t live to see the fruit of his efforts in fighting abuses at the Escambia County Jail. She said he was so hopeful of the outcome of the DOJ investigation.

“I really wish he was here,” she said. “Finally somebody listened. Our concerns have been validated. Our efforts made a difference.”

—– ONLINE EXTRAS——

DOJ REPORT – Here
DOJ TECHNICAL ASSISTANCE LETTER – Here

Movement for Change/ACLU 2003 Complaint
Movement for Change/ACLU 2006 Complaint

IN COVERS
Taser Abuse
Death of Robert Boggon
Healthcare Behind Bars
To Protect & To Serve
Judging The Jails
How To Mend A Broken Mind
The Rise & Fall of the Ron McNesby Empire
The Big House & The Big Picture