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 the 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 stroke 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 videotape 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 the 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 videotape. 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 his 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 the 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, a 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 standing to a 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 the 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.