Santa Clara County supes give OK for more military equipment, demand more study on tear gas use in jails

SAN JOSE, Calif. - The Santa Clara County Board of Supervisors on Tuesday allowed the sheriff to buy more military equipment, while also demanding that an independent auditor conduct another, more thorough investigation into how state hospitals get patients to take their medicine other than using tear gas.

The motion, by board president Susan Ellenberg, mandates that the county-commissioner auditor – Mike Gennaco of the OIR Group – report back in January its findings into alternate uses of tear gas in the jails. 

She wants Gennaco to study how state hospitals and other jails get people to comply, especially in taking their medication, other than deploying chemical agents.  

But the vote ensures that Santa Clara County will continue to be the only county in the Bay Area to use tear gas in its jails, which a monthlong KTVU investigation uncovered by surveying the sheriff's departments in all nine counties. 

Ellenberg is against its use. 

"Philosophically, I cannot get myself to an approval of the use of military equipment or weapons of war to people in our custody. Period," she said. 

Ellenberg first raised questions about the use of tear gas in June, and convinced her peers to hold off on allowing the sheriff to buy more military equipment until more research could be done.

Ellenberg wanted to know if the sheriff was doing everything to de-escalate situations before resorting to using tear gas, which goes by the brand name of Clear Out. 

The Santa Clara County Sheriff used Clear Out 17 times in the last year,  in order to force people to take their medicine and to move into other cells, which deputies call "cell extractions." 

At the meeting, Sheriff Bob Jonsen said he understood there was a lot of concern over the issue, and he vowed to maintain "strict protocol and oversight" over the use of tear gas.

"And the beauty of this county is we have those things in place to ensure we are using these things thoughtfully, effectively and compassionately," Jonsen said. 

As a condition for being allowed to buy more military equipment, Jonsen also promised to follow recommendations that the OIR Group provided his office in terms of tear gas use, which include documenting its use better, calling in a supervisor to observe when tear gas is deemed necessary and not gassing people with respiratory issues, as some examples. 

Gennaco's original audit found the use of tear gas to be within policy.

But as community member Aram James, a retired public defender, pointed out – Gennaco's team hadn't interviewed anyone of the 17 people who had been gassed; he just reviewed body camera video of the deployments. 

Gennaco acknowledged that he was not able to make comparisons to how other jails get non-compliant people to take their medication because the other counties wouldn't share their video and after-action reports with him. It's unclear how he will conduct his comparison inquiry that is now due in January. 

KTVU filed a public records request asking the Santa Clara County Sheriff release its body camera video of the tear gas deployments, but the sheriff denied that request. 

Gennaco also denied a verbal request by KTVU to review the tear gas deployments that his auditing team reviewed to make their determination. 

At the meeting, Asst. Sheriff David Sepulveda told the supervisors the reason that deputies use tear gas in jail because otherwise they'd have to resort to "physical force," and inevitably both deputies and those in-custody would get hurt. He did not provide statistics. 

Gennaco's team found that in 11 of the 17 times tear gas was deployed, the gas didn't work the first time around and they had to use a second round. In eight of those cases, the deputies had to use some type of physical force to restrain the person even after they were gassed. 

Before the meeting, 20 activists decried the use of the tear gas as an inhumane tactic, especially on those who suffer from mental illnesses.

In addition to her main order, Ellenberg also required the auditor and the sheriff review video of adjacent cells to make sure they were evacuated when the chemical agents were deployed.

And she ordered the sheriff to limit the use of cell extractions for such things as maintenance.  In one of the 17 instances, a person was gassed because he wouldn't move out of his cell, which needed to be painted. 

A new law, AB 481, requires law enforcement agencies to make public the use of military equipment and also seeks purchasing approval from governing bodies, such as the Santa Clara County Board of Supervisors.

Additionally, the law also requires that the government agency only approve the purchase of military equipment if there are "no reasonable alternatives to achieve officer and civilian safety."

Lisa Fernandez is a reporter for KTVU. Email Lisa at lisa.fernandez@fox.com or call her at 510-874-0139. Or follow her on Twitter @ljfernandez.