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News: Force to Be Reckoned With

Federal lawsuit filed against Leis and Hamilton County over jail incident

By Kevin Osborne · April 9th, 2008 · News
  Attorney Alphonse Gerhardstein says he's trying to
Sean Hughes

Attorney Alphonse Gerhardstein says he's trying to "help make sure that governments follow the rules."

A prominent civil rights attorney has filed a federal lawsuit against Hamilton County and Sheriff Simon Leis Jr. over an incident last summer when a corrections officer fired three pepperball rounds point blank at the chest of an inmate shackled to a restraining chair in the county jail.

In the lawsuit, attorney Alphonse Gerhardstein alleges the corrections officer, Sgt. Michelle Moore, used excessive force in the incident. Further, the suit alleges that Leis condoned the action, which violates the inmate's right against cruel and unusual punishment.

Besides Leis and Hamilton County, Moore also is listed as a defendant in the case. The lawsuit was filed late last month in U.S. District Court and seeks an unspecified amount in compensatory and punitive damages.

Gail Wright, attorney for the Sheriff's Office, declined comment.

As CityBeat previously reported (see "Excessive Force," issue of Jan. 2), the incident occurred Aug. 10 in the Hamilton County Justice Center when five inmates who had been placed in administrative segregation for bad behavior became defiant and placed toilet paper and other material into their toilets, causing them to clog and overflow. The inmates then wouldn't allow corrections officers into their cells to deal with the situation.

A Correctional Emergency Response Team (CERT) forced its way into the cells using gun-launched balls containing pepper spray, which acts as an eye and lung irritant. A videotape of the incident made by officers shows them placing the unruly inmates into restraining chairs one by one, as the team slowly regains control. The final inmate, Michael Jackson, remained combative and was dragged from his cell while handcuffed at both his arms and legs.

The videotape shows that Jackson, who is white, turned to Moore, who is African-American, and called her a "nigger." Jackson also can be heard saying to Moore, "You're choking me."

After Jackson is strapped to a restraining chair, Moore shoots him in the chest with the pepperball gun. About a minute later, Jackson uses another racial slur, and CERT members dare him to say it again.

In all, an internal investigation by the Sheriff's Office determined that Moore shot Jackson with the pepperball gun two or three times after he was shackled. Jackson was treated by a jail nurse and then charged with aggravated rioting.

'There are consequences'
During the internal investigation, three supervisors in the Sheriff's Office concluded that Moore used excessive force. Although any violation of the department's written policies for dealing with unruly inmates could potentially subject an officer to termination, Moore was ordered to attend three counseling sessions.

Despite the videotape, Leis decided there was insufficient evidence and overturned the punishment.

In the report dismissing the case, the sheriff wrote, "After my personal interview with Sgt. Moore and further interviews of CERT members by corrections staff, I have concluded the evidence is inconclusive that Sgt. Moore used excessive force in this situation."

Such blatant disregard for procedures is dangerous and could set a precedent that allows other inmates to be mistreated, Gerhardstein says.

"We are willing to file excessive force cases because there is no political lobby to protect prisoners and stand up for their rights," Gerhardstein says. "That's not on anybody's agenda."

Even prisoners must be accorded basic rights against abuse under the law, he adds.

"Cases like this help make sure that governments follow the rules," Gerhardstein says. "When they don't follow the rules, that have to be shown that there are consequences."

The initial Sheriff's Office report on the incident could bolster Jackson's case. The Oct. 22 report, filed by Capt. John Taylor and given to Moore, states: "It is my opinion, after reviewing reports and the videotape, the force used was in compliance with Sheriff's Office policy until the point you fired the pepperball rounds striking Inmate Jackson in the chest area. Your actions in this matter places you in violation of the following: Hamilton County Sheriff's Office rules, regulations and disciplinary process."

At the time of the incident, Jackson was serving a sentence for receiving stolen property and was locked up from March to December 2007. While incarcerated, Jackson was placed in an isolation cell for four months -- from April through August -- and was alone 23 hours a day, which adversely affects the mental outlook of inmates, Gerhardstein says.

Another lawsuit settled
Besides the Jackson lawsuit, Leis' actions partially were the reason Hamilton County recently paid $10,000 in taxpayer money to settle another lawsuit. County officials cut a check March 31 to pay legal fees in a federal lawsuit filed last year by anti-tax activist Jeff Capell.

In October, Capell filed a lawsuit alleging the county violated his constitutional rights based on two actions taken by officials to promote Issue 27, the sales tax proposal to build a new jail that was on last November's ballot.

He alleged the county violated his First Amendment rights when County Commissioner Todd Portune decided to hold a press conference in the County Administration Building to tout the tax but initially prohibited tax opponents from holding their own conference there free of charge. Capell also alleged Leis violated his 14th Amendment rights when the sheriff sent a letter to 1,072 Sheriff's Office employees asking that they vote for the sales tax increase, which would have paid for a new jail.

Shortly after the lawsuit was filed, Leis agreed to distribute a letter to his workers written by the anti-tax group, and county officials let the group use its property to hold a press conference.

The tax increase was defeated 56-44 percent in November, the second time in a year that a jail tax was rejected.

"I'm very pleased with the settlement. It vindicates our initial argument that the government can't invalidate our First Amendment rights just because they don't like what we have to say," Capell said. "If the sheriff and the commissioners had done the right thing early on, we wouldn't have had to file our lawsuit."

The incidents occurred because other politicians are afraid of Leis, Capell adds.

Referring to the sheriff, he says, "He's made a political career of being a bully and just rolling over people to get whatever he wants."

Leis is running for re-election this fall without opposition. ©



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