Prisoner Files Lawsuit after Being Pepper Sprayed in Restraint Chair

by Derek Gilna

A Maine state prisoner who was pepper sprayed at close range after being placed in a restraint chair is suing the prison captain who wielded the chemical irritant during a 2012 incident that was captured on video and made public by a Portland newspaper.

Prisoner Paul Schlosser III, serving a seven-year sentence for robbery at the Maine Correctional Center in Windham, filed the lawsuit in May 2014 against Capt. Shawn Welch, who was initially fired but later reinstated with a 30-day suspension.

“In my investigation it appears that the situation went from a security situation to a punishment one,” Maine Department of Corrections (MDOC) investigator Scott Durst wrote in a report. Durst formerly served as a detective for the Maine Drug Enforcement Agency.

“The behavior [of the officer] was completely outrageous,” said Schlosser’s then-attorney, C. Donald Briggs III. “It was completely unjustified. It’s very difficult to even watch the video. It’s just terrible.”

The security video was made public by the Press Herald/Maine Sunday Telegram on the newspaper’s website. The MDOC investigation determined that Welch had violated several prison policies and used excessive force against Schlosser due to a personal grudge.

Briggs said that while Schlosser did not suffer any lasting physical injuries, “for a period of time, he had just an incredibly painful, scary, frightening experience. The only lasting effect is the sense of unease about the whole thing.” Briggs passed away in September 2014, while the case was pending.

The incident unfolded on June 10, 2012, when Schlosser complained that prison staff were late with his pain medication for a self-inflicted wound on his arm. In an apparent attempt to display his frustration, he began to pull the dressing off his wound and refused to be taken to the facility’s medical unit.

Prison officials put together a team to place Schlosser in a restraint chair and videotaped the process pursuant to prison regulations. The video shows Welch, who was in charge of the unit that day, telling Schlosser to kneel with his hands behind him. Guards are seen fastening straps on his waist and ankles before wheeling Schlosser to a reception area. The video shows Schlosser was calm and compliant.

When one guard pinned Schlosser’s head to the back of the restraint chair, however, he appealed to Welch to tell the guard to let go, then began to struggle. As Schlosser briefly freed his head, he spat at the guard.

Immediately and without warning, Welch sprayed Schlosser in the face with a short blast of pepper spray. The investigation later determined that Welch used a pepper spray canister that was intended for disabling a crowd of people, not a single individual. Further, the manufacturer warns that the spray should be used no closer than six feet from the target; the video shows Welch sprayed Schlosser from a distance of approximately 18 inches.

After being sprayed, Schlosser is seen on the video gasping and fighting for breath. As he tried to lean forward to spit out the spray, one of the guards held Schlosser’s head against the back of the chair while another put a mask on him, covering his mouth and nose and trapping the pepper spray against his face. Twenty-four minutes elapse from the time he was sprayed until he was allowed to wash his face.

During that interval, Welch is seen walking in and out of the cell holding the pepper spray canister, telling Schlosser “this will happen all over again” if he doesn’t cooperate.

“You’re not going to win. I will win every time,” Welch is heard saying on the video. As Schlosser complains, Welch tells him repeatedly, “If you’re talking, you’re breathing,” suggesting that Schlosser was not in serious distress.

At one point, Welch is heard whispering to Schlosser, “Useless as teats on a bull, huh.... What do you think now?”

According to the investigator’s report, Welch was making an apparent reference to an insult that Schlosser had directed at him two days before.

“Welch continues to brow beat Schlosser and it looks like he has made this a personal issue,” Durst wrote in his report. “There is not one incident of de-escalation and in fact Welch continues to escalate the situation even after the deployment of chemical agent.”

Durst said he could not find any prison policy that specifies how soon a prisoner should be decontaminated after being pepper sprayed. He added, however, that numerous police departments require the person’s face to be immediately washed with water.

“In this case, Schlosser did not have that option and could not calm down due to the reaction to the chemical agent,” Durst noted.

In a later interview, Schlosser said he didn’t remember much about events leading up to his restraint in the chair.

“They had me all medicated. I was so out of it I don’t recall even them asking me to come get cleaned up,” he said, adding that he was taking Vicodin for pain and Ativan for anxiety. Schlosser also indicated he was taking the anti-psychotic medication Thorazine, although he didn’t know why.

Schlosser said he remembered spitting on the guard and Welch spraying him.

“I couldn’t breathe. It was just an awful, claustrophobic ... it wasn’t even the burn that really bothered me,” he stated.

Durst said Welch had violated four prison policies, including personally taking part in the extraction instead of watching from a safe place while guards entered Schlosser’s cell, and using a strong concentration of pepper spray at close range.

“Welch told me that he looked at the total situation at the time and felt he needed to stop Schlosser from moving around, possibly injuring his left arm which was still pinned behind his back,” Durst wrote in his report. “Welch also told me that he had to take into consideration the officers’ feelings at the time, that one of their own had just been spit on and the whole event needed to stop.”

Prison experts were critical of Welch’s actions. Steve Yerger, a private consultant who trains officers in use of force, called pepper spraying a restrained prisoner a bad practice.

“The use of force is to get control of the situation and keep everybody safe,” he said. “It’s not a form of punishment which leads to torture. That’s a clear, blatant violation in most facilities.”

But David Klingler, a former policeman who teaches at the University of Missouri, noted there are occasions when pepper spray is useful.

“Typically, when someone is in a chair, they don’t present much of a threat if they are already restrained. However, if there’s a need to be in close proximity, to provide medical attention maybe [pepper spray] would be an appropriate tool to use,” Klingler said.

Welch was fired following the incident but appealed his termination, according to MDOC records. Maine Correctional Center Superintendent Scott Burnheimer denied the appeal on August 15, 2012 and wrote that Welch would not be offered another position within the department.

However, then-state Corrections Commissioner Joseph Ponte later reversed the ruling and reinstated Welch with a 30-day suspension.

“As we looked at the overall years of service and performance which have all been very good, one bad incident here with some mistakes in judgment – with a ... last-chance agreement so anything else is straight termination, no appeal – this was best for the employee, best for the agency,” Ponte said.

The highly-publicized incident prompted a series of reforms within Maine’s prison system. After the story was first reported, the legislature’s Criminal Justice and Public Safety Committee held hearings on the use of force in state prisons. Lawmakers created a new internal affairs unit charged with investigating allegations of misconduct by corrections employees.

The new investigators are in addition to four MDOC investigators who have been assigned to review cases involving criminal conduct at the state’s two main prisons and youth detention facilities.

Criminal Justice Committee Chair Rep. Mark Dion said the internal affairs unit was considered a key priority.

“Internal affairs protects the integrity of the institution, helps protect public safety within the organization and provides quality control,” he said. Those goals are not just important for staff and prisoners, but also for their family members on the outside, he added.

MDOC officials also instituted new policies aimed at improving guards’ handling of prisoners who injure themselves and those who spit at prison staff, even though they admitted some of those changes have led to increased use of pepper spray in certain circumstances, especially at the Maine State Prison, which houses prisoners who are considered harder to manage. Officials reported the use of pepper spray at that facility more than doubled in 2013 compared to the year before.

Sources: www.bangordailynews.com, www.mainetoday.com, www.pressherald.com

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