Confidential report criticizes O.C. sheriff’s use of force policies

A handcuffed 13-year-old boy picked up into the air by a deputy and slammed into a patrol car.

A deputy holding his knee on the back of an inmate’s neck for more than two minutes.

An inmate attempting suicide after being elbowed in the head by a deputy who later denied using any force when questioned by a supervisor.

Each of these instances occurred under the watch of the Orange County Sheriff’s Department. None of the deputies involved in these incidents were referred to Internal Affairs for investigation or potential discipline.

The incidents are highlighted in a confidential report reviewed by TimesOC. The report, titled “Special Report on Pressing Use of Force Issues,” was prepared by the Office of Independent Review, which oversees the county’s Sheriff’s Department, district attorney’s office, public defenders office, probation department and Social Services Agency.

The OIR has been conducting a review of the Sheriff’s Department’s use of force policies over the last several months.

This confidential document appears to highlight problematic force incidents and department policy issues ahead of the release of a more comprehensive report from the OIR, which is “forthcoming.”

The report is addressed to the Orange County Board of Supervisors and Sheriff Don Barnes.

The report says that the OIR for its review analyzed 147 use of force packets — not involving shootings — of the 627 that were filed between Jan. 1, 2020, and Oct. 5, 2020. The sample is meant to serve as a representation of the total number of force incidents during that time span.

The report focuses on three incidents where deputies exhibited force that the OIR claims should have warranted deeper scrutiny than they received. The deputies involved in the force incidents are not named in the OIR report.

“OCSD’s decision to forgo the relatively exhaustive Internal Affairs review process suggests a systemic issue that raises significant risks for the County, its sworn officers, and the public they serve,” the OIR report says.

“It also raises the possibility that other such lapses exist within the incidents not yet reviewed by the OIR.”

Use of force incidents

On March 17, 2020, deputies were called to a scene to diffuse a domestic dispute between a 13-year-old boy and his parents, the OIR report says.

The boy was suffering through an “apparent mental health crisis” and his parents did not want him to be arrested. The boy was handcuffed and led to a patrol car after the parents asked for him to undergo a mental health evaluation.

The report says the boy then insulted two deputies and spat in the direction of a deputy’s car, but he did “not appear ready to flee or resist.”

Yet, one of the deputies grabbed the child’s arms, lifted him into the air and slammed him against a patrol car, according to the report, and the child’s feet dangled in the air for seconds as the deputy pushed him against the vehicle.

“The encounter between the second deputy and the child lasts for 20 seconds and represents a tremendously quick and tragic escalation of events,” the reports says.

The supervisors who reviewed the incident concluded that the deputy’s actions violated department policy, specifically pointing out that the type of force that was used could have injured the child.

Yet, the deputy was not reported to Internal Affairs for further investigation and potential disciplinary action. Rather, the lieutenant who reviewed the incident recommended counseling and a negative performance note, which is expunged after being incorporated in the deputies’ performance evaluation for that specific period.

As noted in the OIR report, the Sheriff’s Department requires supervisors to refer potential out-of-policy force violations to Internal Affairs.

The same deputy was cited a few weeks later for using excessive force after he grabbed a suspect’s neck and forced him to the ground without giving him adequate time to comply with deputies’ commands.

Again, a reviewing lieutenant said the deputy will be counseled and didn’t report the incident to Internal Affairs, even though he said in his report that the deputy could have injured the suspect and himself because of how quickly he pulled the suspect off the ground.

The deputy also damaged his patrol car during the incident when he ran over two concrete medians, the OIR report says.

The Orange County Central Men’s Jail in Santa Ana.

(Scott Smeltzer / Staff Photographer)

On April 27, 2020, a deputy placed his knee on the back of an inmate’s neck for about two minutes and 25 seconds while several other deputies helped to subdue the agitated inmate.

The deputy then erroneously reported that he had placed his knee on the inmate’s body, not his neck. The OIR reports says that his knee remained on the inmate’s neck for long after the inmate appears to be subdued.

“Without applying cognizable medical care, the deputies then exit the cell,” the report says. “The inmate is left on the ground, his legs and shoulders twitching.”

The report says that the sergeant who reviewed the incident said that it presented liability concerns because the inmate could have suffered a spinal injury.

“Because this force could have resulted in serious bodily injury, supervisors should have flagged this incident as involving deadly force, which should have triggered a requirement to forward the incident to Internal Affairs,” the report says.

However, supervisors did not refer the incident to Internal Affairs and instead wrote that the deputy should receive refresher training on arrest and control techniques.

Despite identifying several glaring problems with the way the other deputies handled the incident, the lieutenant who reviewed the issue determined that there should be a review of the incident and verbal training for the deputies.

“The way in which OCSD supervisors treated such a high-risk unauthorized use of force indicates that OCSD should amend its force policy to clearly state, in writing, that supervisors should forward unauthorized uses of force and force that is potentially deadly to Internal Affairs,” the report says.

“By declining to forward the incident to Internal Affairs and by merely requiring training, OCSD minimized the severity of this unauthorized force, limited the extent of the investigation of the incident, and foreclosed any discipline.”

Late or incomplete force reports

The report also says that the OIR identified 56 use-of-force reports that were filed late, including one which was filed 41 days late.

The finding led the OIR to infer that about 21% of the force packets between January and October 2020 contained one or more late force reports.

The International Assn. of Chiefs of Police states that force reports should be filed no later than the end of a police officer’s shift. The longer an officer waits to file a report can lead to memory issues and “hindsight bias,” the OIR report says.

The report describes one specific example where use of force went unreported. On March 9, 2020, a deputy in a county jail elbowed an inmate in the back of the head while attempting to handcuff the inmate with the help of another deputy.

The deputy who hit the inmate failed to bring the inmate to medical staff for an examination, and he did not notify a supervisor of the incident. Instead, the inmate was returned to his cell.

The OIR report says that about five minutes later, another deputy walked by the inmate’s cell and saw him hanging with a piece of fabric around his throat in what was described as an attempted suicide.

A supervisor then asked the deputy who hit the inmate whether any force had been used against the inmate, but the deputy denied that any force had occurred. Later, the deputy filed a report describing the blow to the head, the report says.

Similar to the other two incidents mentioned in the report, supervisors who reviewed the incident did not report the matter to Internal Affairs and decided that the deputy only needed counseling on the duty to report uses of force in a timely manner.

The supervisors did not cite the deputy for failing to bring the inmate to medical staff.

The failure to file use of force reports on time draws parallels with the evidence mishandling scandal that the Sheriff’s Department has been embroiled in over the last few years.

Orange County sheriff’s deputies were found to have booked evidence late or failed to book evidence at all but subsequently lied about it in reports.

“The timely reporting of force is a hallmark of law enforcement best practices,” the report says.

Orange County Sheriff’s Department Headquarters in Santa Ana.

(Scott Smeltzer / Staff Photographer)

When reached for comment this week and asked directly about the contents of the OIR report, the Sheriff’s Department provided a statement without addressing any of the use of force issues.

“The Sheriff’s Department has a cooperative working relationship with the Office of Independent Review,” Sheriff Don Barnes said in an emailed statement.

“They review our practices and procedures and make recommendations. We take their recommendations into consideration and make adjustments to department protocols, as appropriate and consistent with best law enforcement practices. The Sheriff’s Department and OIR share a common goal of providing safe law enforcement services to the residents of Orange County and we work together, effectively and collaboratively, to achieve that goal.”

Four of the members of the county Board of Supervisors did not respond to requests for comment on the document. A spokesman for board Chairman Andrew Do said he was unavailable for providing comment or an interview.

Sergio Perez, executive director of the OIR, responded to a request for comment with an emailed statement.

“The Office of Independent Review does not acknowledge or discuss confidential reports it may issue regarding any of the agencies it oversees,” Perez said.

“My office continues to work to ensure the justice-related agencies within our jurisdiction operate in a transparent manner that ensures the lawful, equitable and just treatment of all members of the Orange County community. We are currently completing a comprehensive, public report related to the use of force of the Orange County Sheriff’s Department and plan to release it soon.”

Orange County Sheriff Don Barnes speaks during a media briefing in Santa Ana.

(Luis Sinco / Los Angeles Times)

Policy deficits in the Orange County Sheriff’s Department

The OIR report specifically identifies a few glaring issues with the Sheriff’s Department’s use of force policy, which may have contributed to the three highlighted force incidents.

The report says that one problematic area of the department’s policy is that it allows the use of unauthorized force, which allows deputies to use force, when reasonably necessary, that they haven’t received any training or guidance on.

The OIR report says the policy may increase the likelihood that a deputy’s response to a situation causes injury or death, which “means more risk—for the County, the deputies at issue, and the public.”

Another issue is the department’s reliance on policy standards that are not written down. In conducting initial reviews of force incidents, the report says that the Sheriff’s Department relies on “unwritten protocols,” which could lead to lapses in execution.

The OIR report says that a member of the Sheriff’s Department’s executive staff said that supervisors must refer incidents to Internal Affairs if they suspect a deputy of using out-of-policy or unlawful force.

Incidents of deadly force that don’t involve a shooting can also be referred to Internal Affairs. However, these standards are not in writing, the report says.

The Sheriff’s Department also doesn’t have any written protocols governing how division commanders investigate uses of force, which likely contributes to why so few force incidents are referred to Internal Affairs, the OIR report says.

Last year, more than 98% of use of force reviews were handled within a division and did not result in any discipline. These division reviews are generally less intensive and don’t always include interviews with involved deputies or witnesses to the incident.

“A failure to refer such matters to Internal Affairs minimizes the severity of such force, ensures that the complexity of the investigation will be limited, and removes the possibility of discipline,” the OIR report says.

The lack of referrals to Internal Affairs may also skew the department’s data on force incidents.

The OIR report says that the Sheriff’s Department’s S.A.F.E. Division, which tracks use of force trends, categorizes all force incidents not referred to Internal Affairs as “within policy.” However, the OIR report shows that supervisors don’t always refer cases to Internal Affairs if an act is deemed “out of policy.” This skews the data compiled by the S.A.F.E. Division.

“As a result, S.A.F.E. wrongly concluded that 98.1% of all use of force incidents were within department policy, because it failed to include any of the incidents highlighted here ...” the OIR report says.

Recommendations

The OIR report provides a number of recommendations for the Sheriff’s Department to shore up its use-of-force and late reporting issues.

The report says the use of unauthorized force should be eliminated because it “increases the likelihood that avoidable and regrettable use of force techniques — that could result in serious bodily injury or death — will occur.”

If the department is unwilling to bar unauthorized force, then it should revise its policy to limit its use to only extreme circumstances, the report says.

In response to the department’s failures in referring problematic incidents for investigation and potential discipline, the report also suggests new protocols for the Sheriff’s Department to adopt to clearly identify force incidents that must be referred to Internal Affairs.

According to the OIR report, these instances should include any use of force that is potentially unauthorized, out of policy or unlawful.

Considering the number of late force reports that were filed, the OIR report also recommends that the Sheriff’s Department “consider more widely auditing its force reporting and assessment practices to ensure that they align with its policies.”

Lastly, the report suggests that the Sheriff’s Department should consider establishing metrics to track the effectiveness of its policies and training.

The report also says that the Sheriff’s Department should post the annual S.A.F.E. report on its website so the public can view it.

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