OFFICE OF INSPECTOR GENERAL
OF THE NEBRASKA CORRECTIONAL SYSTEM

Use of Force Incident at
Tecumseh State
Correctional Institution
SUMMARY OF INVESTIGATIVE REPORT
MAY 2, 2023

Doug Koebernick, Inspector General
Zach Pluhacek, Assistant Inspector General

Contents
Executive Summary ........................................................................................................................ 2
Background ..................................................................................................................................... 4
About the Individual ................................................................................................................... 4
Serious Incident Prior to June 2021 Incident .............................................................................. 5
Another December 2021 Incident ............................................................................................... 6
June 2021 Incident .......................................................................................................................... 8
Lead-up to Incident ..................................................................................................................... 8
Use of Force Incident .................................................................................................................. 8
Injuries ...................................................................................................................................... 12
Examination of Issues ................................................................................................................... 14
Mental Health and De-escalation .............................................................................................. 14
Use of Force .............................................................................................................................. 15
Disorganized Response ............................................................................................................. 16
NDCS Reviews ......................................................................................................................... 16
Recorded Telephone Call .......................................................................................................... 20
Director and Chief of Operations Roles/Reactions ................................................................... 20
Findings......................................................................................................................................... 22
Recommendations ......................................................................................................................... 26

1

EXECUTIVE SUMMARY
In June 2021, an incarcerated individual with a serious mental illness and a history of disruptive
behavior caused a disturbance and threatened staff in the common area of a housing gallery at the
Tecumseh State Correctional Institution (TSCI). During an incident that lasted several hours, the
individual was shot by a combination of approximately 200 projectiles, receiving wounds all
over his body, with three rubber bullets becoming embedded under his skin. After staff removed
him from the area, they immobilized him in a five-point therapeutic restraint bed for at least
three hours before the individual was placed in a cell in the facility’s mental health unit.
The incident prompted a series of internal NDCS investigations which reached conflicting
findings.
The Office of Inspector General of the Nebraska Correctional System (OIG) examined this
incident with the intent of promoting accountability within the system and identifying possible
reforms.1
At the conclusion of this investigation, the OIG found:


The June 2021 incident was mishandled in many ways, from incorrectly utilizing rules
for a use of force to the unacceptable amount of time it took to get the situation under
control.



During the incident, there was a lack of clear leadership and directions, in addition to a
chaotic and confusing scene, which resulted in the unnecessary use of lethal force and
excessive amounts of less-lethal force.



The experiences of a December 2020 use of force involving the individual did not result
in a better reaction to the use of force in June 2021.



Despite the individual’s history of serious mental illness, mental health staff’s
involvement in the response to this incident was minimal.



Internal reports after both the December 2020 incident and the June 2021 incident
recommended that other less-lethal options be available in some situations.

1

Such investigations are required pursuant to the Office of Inspector General of the Nebraska Correctional System
Act, Neb. Rev. Stat. § 47-901 et. seq.

2



The actions of the staff involved in the incident were not consistent with their training
and in accordance with the Department’s use of force policy.



Despite then Director Scott Frakes stating that he received “verification” that the
individual did not suffer serious injuries in the incident, photographs show the injuries
were significant, and did restrict the individual’s usual activity.

After careful consideration of these findings, the OIG recommended to NDCS that the agency
take the following actions:
1. Update the Department’s use of force policy to include attempts at de-escalation by a
licensed mental health professional, when time allows, for incidents involving people
with known mental health issues.
2. Implement a policy to develop individualized de-escalation plans for people with serious
mental illnesses who have histories of volatile interactions with staff.
3. Implement a reimbursement policy for on-call mental health staff by May 1, 2023.
4. Contract with an outside entity which specializes in training of first responders who
interact with individuals with a serious mental illness to provide additional training for
staff.
NDCS accepted the first recommendation, rejected the third recommendation and requested
modifications to the remaining two recommendations.

3

BACKGROUND
The OIG launched an investigation into a use of force incident after visiting the special
management unit (SMU) at TSCI on August 18, 2021, and encountering the individual involved.
He was in a single-person cell on a gallery used for acute mental health and restrictive housing
placements and sought the attention of the Inspector General of Corrections. The individual was
only wearing his boxer shorts and had marks that looked like quarter to golf-ball sized welts or
bruises over many parts of his body. When asked what happened to cause the injuries, he shared
that he was involved in a use of force incident in June 2021. He said he had been shot repeatedly
by pepper balls, rubber bullets and beanbags. He also shared that he had been involved in another
use of force in December 2020 in which he had also been shot repeatedly by similar weapons. He
shared written documents that seemed to corroborate these claims.
As part of the investigation, multiple documents were reviewed including NDCS policies,
relevant state statutes, disciplinary documentation, internal reports related to the incident and
other written communication related to the incident. All video recordings of the incident were
carefully reviewed multiple times, and related telephone recordings were also reviewed. In
addition, interviews were conducted with various NDCS staff and officials involved in the actual
incident or later related activity.

About the Individual
The individual at the center of this investigation first entered NDCS custody at age 18 due to a
conviction for terroristic threats. He served approximately eight months at the Nebraska
Correctional Youth Facility before being released. His most serious misconduct charge during
that time resulted in 30 days of disciplinary segregation. He received no misconduct charges for
assaults and lost 15 days of good time. His entire stay took place at the Nebraska Correctional
Youth Facility. He once again was incarcerated a year later, this time for terroristic threats,
cruelty to animals, and use of a deadly weapon to commit a felony. He has received two
additional assault charges during his current incarceration, and his tentative release date is in

4

2038. He is currently eligible for parole. He was placed in a segregation unit2 soon after entering
the system and has spent most of the past 12 years in either a restrictive housing setting or a
mental health setting, primarily at TSCI. He also spent eight weeks at the Lincoln Regional
Center.
He started receiving misconduct reports about five weeks after starting his second incarceration,
losing a month of good time for flare of tempers/minor physical contact. His misconduct reports
increased over time and include a variety of offenses, including mutilation of self, disobeying an
order, swearing, cursing or abusive language or gestures, disruption, assault, medication abuse,
and other offenses. As of this report, he has received over 450 misconduct reports during his
current incarceration and has lost all of his good time (4,201 days). A review of his past
misconduct reports and incidents found numerous assaults, disruptions, flares of temper,
threatening language and more. Some of these resulted in uses of force. He has a long history of
being restrained by staff due to a variety of issues and incidents, including being held down so
that medication could be provided to him as part of an involuntary medication order (IMO).3

Serious Incident Prior to June 2021 Incident
December 2020
The individual was involved in an extensive use of force in December 2020 at TSCI.
According to the NDCS use of force report, the individual was given directions to be placed in
restraints in order to be escorted from the mini-yard to the shower area for a strip search. He
became aggressive and began yelling and slamming his fists against the door of the mini-yard.

2

Segregation is a term that is also known as restrictive housing. The two terms may be utilized interchangeably by
inmates and others. Laws regarding NDCS’s use of immediate segregation and restrictive housing may be found at
Neb. Rev. Stat. §83-173.03, and use of disciplinary segregation may be found at Neb. Rev. Stat. §83-4,114.01.
These terms generally refer to placement in which movement is limited and an individual has out of cell activities
of less than 24 hours per week.
3
This report contains several references to IMOs. He is given IMOs to assist with his mental health condition.

5

At 1005 hours a cell extraction team was
assembled, but before it arrived he broke an arm
bar from the wall, and it became a potential
weapon. He did not comply with any orders to
come to the hatch at the door to be restrained. At
1045 hours, staff deployed 10 pepper ball rounds
4

to his legs, chest and arms. He continued to refuse
to comply with the directives, and four 40 mm
projectile rounds were deployed to his legs.5 He
again refused to comply. Five to six bursts of a
chemical agent were then deployed to his upper
brow.6 He refused to comply. Three more 40 mm
rounds were deployed to his legs. He did not
comply, and five to six more bursts of the chemical
agent were deployed to his upper brow, followed
by an additional five bursts. After he again refused
to comply with the directives, five more bursts of a
chemical agent were delivered, followed by 40
more pepper ball rounds at his legs, chest and
arms. He refused to comply, and one 40 mm OC
Direct Impact round was fired at his chest,
followed by 10 more pepper ball rounds. This was
the first of a series of six deployments of an
additional 10 pepper balls each, for a total of 110
up to that point. Over the next several minutes,
five additional 40 mm OC Direct Impact rounds

Another December 2021
Incident
Later on that same day, another incident
took place in that same restrictive housing
gallery, involving an individual with a
serious mental illness who was
accidentally let onto the gallery.
Staff attempted to talk to him through the
door at the entrance of the gallery, and the
incarcerated individual attempted to spray
them using a chemical bottle that was left
on the gallery. He refused their orders to
secure himself in the gallery shower.
A use of force team was assembled and he
ran to the back of the gallery with a
shower brush. He again refused their
orders and an Exact Impact round from
the 40 mm launcher was fired at him.
Shortly after that staff deployed one round
of direct impact OC. The individual ran
into the shower but refused to secure the
shower door. As a result, nine Live X
pepper balls were deployed at him as well
an additional 40 mm projectile.
At this point he secured the shower door.
Staff interacted with him for about 20
minutes before the use of force team
entered the shower. He resisted and a staff
member used two closed fist strikes on
him. He fell on top of a staff member and
began to choke them. Additional strikes
were delivered to him, including hand and
knee strikes. He eventually was properly
restrained.

4

A pepper ball round is a hard plastic frangible sphere that is designed to burst upon impact and release a
chemical agent.
5
A 40 mm round is basically an impact round fired from a type of projectile launcher that can utilize various
payloads. One payload that was used at some points during this incident was an OC Direct Impact round that
carried a chemical agent.
6
Staff have canisters that contain a chemical agent called Oleoresin Capsicum and use that to spray individuals.

6

were fired at him along with additional bursts of a chemical agent.
The individual eventually submitted. All of this took place in the small mini-yard which is about
the size of two cells. After the incident, the TSCI major provided the TSCI warden with a use of
force review memo dated January 13, 2021. It listed nine observations made as a result of
reviewing the use of force packet. Relevant comments included:



When direct impact rounds (40mm and/or pepper ball) are showing to be ineffective then
alternate actions need to be considered.
There needs to be one person in charge and one person giving verbal directives.7

NDCS did not conduct an internal critical incident review (ICIR) of this incident. An ICIR can
be conducted as a follow-up to a serious incident to gain additional insights. The review team
examines the incident making findings and recommendations. As will be discussed later in the
report, the top leaders of NDCS were not made aware of the December 2020 incident, including
not receiving the completed use of force report, until after the June 2021 incident.

7

January 13, 2021 Memo from the major to the warden.

7

JUNE 2021 INCIDENT
Lead-up to Incident
Leading up to the incident the individual had some interactions with mental health staff while in
Housing Unit 1 at TSCI. Housing Unit 1 consists of six galleries containing inmates who have
sought protective custody. On May 27, 2021, he was “acting irrationally on the gallery” and was
placed in the skilled nursing facility and placed on 15 minute checks. After returning to Unit 1,
he met with mental health staff a few days later who found him to be verbally aggressive toward
staff and was showing a labile mood.8 The next day he was highly agitated and verbally
aggressive toward mental health staff. The psychologist ended the contact as a result and left the
gallery.

Use of Force Incident
On the day of the incident at 1630 hours, the individual was in a housing unit at TSCI. It was
during dining time, and the corporal in the unit noticed his “unusual and aggressive behavior”
and that he acted aggressively and was screaming. A later conversation was captured via audio
from a handheld video camera in which the corporal provided additional specifics and said that
the individual was “mad dogging” and threatening him after claiming the corporal was trying to
poison him via the food. At that point, the corporal exited the gallery. The corporal also
discussed in that audio from the handheld video camera how staff were told the individual had
“lost his cool” the day before and threw a tray. Staff who worked the previous day also said he
had requested to be placed in an observation cell but then changed his mind and asked to speak
to mental health staff.
Within five minutes, the entire gallery of the housing unit was cleared of all staff and inmates
with the exception of the individual involved in the incident.9 At 1648 hours, the major was
notified via telephone by a sergeant (who was the acting lieutenant) about the situation and a

8
9

A labile mood is often characterized by emotions that shift in a drastic and uncontrollable manner.
The inmates returned to their cells.

8

decision was made to assemble a use of force team. In addition, the individual had begun
barricading the doors that led to the gallery.
As the incident unfolded, the major contacted the warden via telephone. When the major later
returned to the facility, he maintained contact with the warden via telephone during the incident.
The warden maintained contact with NDCS Deputy Director Robert Madsen throughout the
incident via telephone. At some point a corporal, who was the acting sergeant in Housing Unit 2,
was called to the scene. He was told to have response and movement staff help, but the facility
did not have any that day due to being short of staff.10
After barricading the doors, the individual began moving around the unit and assembling small
weapons. After the use of force team members arrived, one staff member tried to talk to him at
1715 hours, and the individual said he would stab the staff in the neck and murder them when
they entered the gallery.11 At 1739 hours staff used a pepper ball launcher to fire 10 rounds into
the gallery via the main doorway to saturate the area with a chemical agent. The rounds were
fired at his chest after he refused orders to drop his weapons and lay on the ground. A few
minutes later, nine additional pepper ball rounds were fired at him. At 1809 hours a single round
from a 40 mm launcher was fired at him when he refused directives. After that, five additional
rounds were fired at him from the 40 mm launcher plus an additional 14 pepper ball rounds were
also fired for direct impact of him and to further saturate the area with a chemical agent.12 When
those didn’t work, an additional seven pepper ball rounds were fired at his chest. During this
time, staff briefly entered the external entrance to the gallery and moved obstructions. A few
minutes later they did the same from the main entrance, after an additional 40 mm OC extended
range round was fired into the area for chemical saturation.
At 1902 hours (147 minutes after the gallery was cleared of staff and inmates), the warden was
briefed via telephone by the major after the major arrived at the facility. The major decided not
to take command of the incident upon his arrival and left the sergeant in charge. He did provide
10

The minimum staffing level for that shift was 70 employees and the critical staffing level was 47 employees. At
1400 hours the facility had 49 employees.
11
Note: In addition to this staff member, other staff also attempted to talk with the individual throughout the
incident.
12
Some chemical agents are delivered so that only the chemical is dispersed but they the projectiles containing the
chemical agent can also be used to impact the individual.

9

advice to the sergeant throughout the incident and maintained communication with the warden
during the incident.
At 1933 hours, the major informed the sergeant that he had requested permission to use lesslethal shotguns and lethal force.13 At 2035 hours, the sergeant received approval to use the lesslethal shotgun but the use of lethal force was denied. The sergeant was informed by the major,
who had been informed by the warden. The warden received permission for less-lethal shotguns
from Deputy Director Madsen. There is no conclusive evidence that anyone clearly thought
lethal force had been approved, but there was confusion surrounding this during the incident. A
staff member did shoot the pepper balls at the individual’s head, which is considered lethal force.
He received initial disciplinary action as a result of his actions.
There were several conversations by staff who expressed concern during the incident about the
individual having a history of chemical agents not having an effect on him. This was one reason
the major requested permission to use less-lethal shotguns. The major also allowed staff to fill
the pepper ball hoppers to their limit instead of 10 at a time.14
Prior to entry, staff were gathered outside the entrance to the gallery. During that time, one
unidentified staff member discussed with others the effect of the 40 mm launcher on the
individual which was recorded on the video camera. He said, “Last time we unloaded on him and
it didn’t affect him, so the more the merrier.” At 2040 hours (over four hours after the start of the
incident) the use of force teams were briefed by the sergeant regarding the plan to enter the
housing unit in order to subdue the individual. Ten minutes later, two teams entered the housing
unit from the internal and external doors after first deploying flash bang grenades, which were
authorized by the warden. However, at the time he did not know what type of flash bangs the
facility had and believed them to be a different type of flash bang that was more disorienting for
the individual near their deployment. As they entered they deployed multiple less-lethal shotgun
rounds, 40 mm rounds and pepper ball rounds at him. Staff repeatedly gave him multiple
13

See https://www.supremecourt.gov/opinions/URLs_Cited/OT2015/14-10078/14-10078-3.pdf. A good definition
of less lethal is a weapon or device that is designed and primarily employed to incapacitate targeted personnel
while minimizing fatalities and permanent injury, but there is no force option that would be considered completely
non-lethal.
14
One NDCS policy limits the filling of the hoppers to ten pepper balls at a time. This will be discussed later in the
report.

10

directives, and the two teams slowly moved toward him. The individual sought shelter in the
shower room, and when this happened the warden directed the major via the telephone to
approve the use of the flash bang grenade in the shower. The staff member with the flash bangs
decided against deploying them in the shower due to the glass and the potential impact of the
sound on the individual, who would have been in a confined area. While the staff member did
not follow the order directed to him, it was a thoughtful decision that took the well-being of the
individual under consideration.
He was eventually subdued at 2100 hours after being hit with a barrage of rounds. The total
number of rounds fired at the individual before he was taken into custody by staff were the
following:














Eleven 40 mm OC rounds for saturation and direct impact (chemical agent
deployed when the projectile impacts the target);
One 40 mm round to the lower body (strictly a projectile without a chemical
agent);
Three 12-gauge beanbag rounds and 6 12-gauge high velocity stinger ball rounds
to the torso15;
One 12-gauge beanbag less-lethal round;
Two 12-gauge high velocity stinger rounds;
Four 12-gauge beanbag rounds to the legs and abdomen;
Seven 12-gauge high velocity stinger rounds to the legs and abdomen;
Unknown (although described as multiple) Live X pepper ball rounds to the
shoulder;
Unknown Live X pepper ball rounds to the crown and left side of the head;
Unknown (although described as several) Live X pepper ball rounds to the hands;
Unknown (although described as multiple) Live X pepper ball rounds to the
shoulder, head and hip and near him for saturation;
Multiple Live X pepper ball rounds to the back and back left; and
40 Live X pepper ball rounds to the individual’s center of mass.

15

A beanbag is basically a type of round that feels like a beanbag and is designed to impact someone but not in a
lethal manner. A stinger round is fired from a 12 gauge shotgun that is intended to be shot at the breast line or
below and is considered a medium pain compliance round. See https://www.defense-technology.com/wpcontent/uploads/2020/06/12-Gauge-Stinger-32-Cal-Rubber-Ball-Round-HV-3020.pdf.

11

At 2110 hours, the individual was evaluated by medical staff and received a decontamination
shower. After that the individual was placed in five-point therapeutic restraints16 and received an
IMO shot from medical staff after consultation via telephone with the facility psychologist.
At 2230 hours (six hours after the start of the incident) the emergency was declared to be over.
Medical staff conducted rounds with the inmates in the housing unit, and the gallery was
cleaned. Inmates were allowed to shower due to their exposure to multiple rounds of chemical
agents. Some inmates needed breathing treatments on the gallery due to the exposure to the
chemical agents.
During the incident, several events or actions took place but due to a lack of an accurate
time/date stamp on any handheld video camera or body camera, a specific time could not be
assigned to them. These included the following:





Staff and a peer support inmate attempting to talk to the individual;
The individual hitting himself with his weapons and also talking “like a snake”
and saying he was going to kill them.
Multiple staff mentioning his resistance to force and chemical agents.
Staff attempting to have other staff removed from his line of sight due to it
possibly impacting him in a negative manner. There were many staff staged or
gathered outside the entrance to the gallery, which took them away from their
responsibilities.

Earlier this year, the individual was currently receiving mental health medications through an
IMO and had been residing in a mental health unit.

Injuries
When the individual was assessed by the medical staff, they noted multiple shallow open wounds
all over his body, a cut on the left ear and large bruising on his left flank. They did not note that
he had a broken finger. The nurse observed that some of his wounds were oozing blood but that
the individual did not want the wounds looked at during the initial assessment.
A review of medical records found the following statements after the June incident:

16

It is unclear when these were actually removed although it may have been at least three hours later according to
one NDCS report.

12





“Patient has multiple wounds on body from pepper balls.”
“Numerous open shallow rounds present and bleeding.”
“Large abrasions on flank.”

The report, possibly due to a lack of cooperation from the patient, did not note that at least three
of the 40 mm rounds (rubber bullets) entered through his skin and stayed there. A review of his
medical records found no mention of rounds being embedded under his skin prior to this time
period which appears to indicate that there was no documentation about these embedded rounds
for at least two months after the incident. There is a record from September 7, 2021 when he
reported to medical that he had rubber bullets under his skin. No action appears to have been
taken at that time.
On February 23, 2022, the individual submitted a medical kite17 referencing the embedded
rubber bullets. The response to the kite was that he was on the list to be scheduled for an
appointment. He sent a follow-up medical kite on February 28, 2022 and wrote that he felt they
should be removed. He received a response that said the doctor “doesn’t intend to remove them.
It’s not infected.”
On April 11, 2022, the NDCS medical director was again contacted about the bullets as the
individual had not had them removed and had indicated he would still like them removed. On
April 25, 2022, one was removed from his thigh but they were unable to remove another one.18

17

A medical kite is an inmate interview request form that is submitted to the medical team that typically requests
medical assistance.
18
It is unclear what happened to the third rubber bullet.

13

EXAMINATION OF ISSUES
Mental Health and De-escalation
Staff contacted the facility psychologist during the incident; however, no licensed mental health
staff member visited the unit to talk with the individual as the incident unfolded. The
psychologist talked to staff members via telephone during the course of the incident in order to
keep up with what was going on so that he could make a determination after it concluded on
whether or not the individual needed to be placed on suicide watch or a type of restraint.
The incident started at 1630 hours, or 4:30 p.m. Licensed mental health staff at TSCI and other
correctional facilities typically work during the day and are not scheduled to work evenings or
weekends. Outside of normal work hours, a licensed mental health staff member is on-call,
although if they are to report to a facility during their on-call time they are not reimbursed for
their mileage or travel time, plus they do not receive any other compensation despite this taking
place during time outside their regularly scheduled hours.
The NDCS policy19 regarding uses of force provides direction regarding attempts to de-escalate a
situation, including:
“If time and circumstances permit, staff should use verbal skills and techniques to resolve
conflicts which may include use of alternative resources such as another staff member
attempting to deescalate or shift focus or, if available in the facility and appropriate to
the circumstances, allowing a trained inmate Peer Support specialist to resolve the
conflict. When verbal resolution has been tried or it has been determined such would be
ineffective, use of force may be necessary. As resistance decreases or increases, the
amount of force used must also decrease or increase to a point where reasonable control
is maintained.”
It also provides the following direction to the officer in charge (OIC) when there is an
opportunity to plan strategy in advance of a use of force:
“Before initiating the use of force, the supervisor on site will make a reasonable attempt
to listen to the inmate’s side of the issue. The OIC will then advise the inmate what he/she
expects and outline the alternatives that the inmate faces. This action minimizes the

19

NDCS Policy 116.02 (2020) – this was the policy in effect at the time of the incident. This policy has been updated
since that time.

14

chance of any misunderstanding. Medical staff must be notified of and consulted prior to
any planned extraction and are readily available during and after the extraction.”
There were several attempts made to talk directly with the individual during the incident,
including by staff members and a peer support inmate. The individual appeared unreceptive to
these attempts to engage with him.
NDCS policy provides minimal guidance as far as the use of a licensed mental health
professional with these attempts to de-escalate a situation. It does provide that the OIC review a
list of individuals at the facility who have been identified as being seriously mental ill or having
an IMO. If it is found that someone is on the list, the OIC is supposed to call mental health staff
to determine the appropriate course of action.
The American Correctional Association has a non-mandatory standard that recommends the
following to correctional agencies: “Written policy, procedure, and practice provide that staff
members attempt to gain compliance of an inmate who is refusing to comply with lawful orders,
prior to a planned extraction.”20 In the comments regarding this standard they stated that “Staff
members i.e. religious advisor, housing unit manager, health services staff, trained negotiator or
other staff should attempt to gain compliance, prior to executing a planned extraction.”

Use of Force
NDCS internal reports found lethal force was used during the use of force event when projectiles
were shot at the individual’s head. However, there are conflicting accounts as to whether or not it
was actually authorized when orders were given to staff on the use of force teams. As mentioned
previously, the major stated that he informed the sergeant that he had requested permission to use
less-lethal shotguns and lethal force and that the use of lethal force was denied by the warden
and Deputy Director Madsen. The sergeant believed that lethal force was allowed if necessary.
This conflict appears to be a result of some staff interpreting various directives as allowing lethal
force. For instance, one staff said team members were told to shoot the individual wherever they
needed to in order to get him under control. The major indicated he was asked by the team what

20

ACA 5-ACI-3A-39.

15

to do if they could not get away from the individual when on the unit, and he told them they
would need to do what was necessary to defend themselves. This is consistent with NDCS
policy, which states, “Deadly force may only be used as a last resort when there are no safe and
reasonable alternatives” including to “prevent imminent serious bodily injury/death to yourself
or another person.”21 As a result, some believed they could use lethal force if they felt it was
necessary. As described above, an extraordinary amount of less-lethal force was used in this
incident, including various projectiles, chemical agents and flash bang grenades.

Disorganized Response
The response by staff was disjointed. Part of this was due to short staffing, with a sergeant acting
as lieutenant and a corporal acting as sergeant. The sergeant, the acting shift supervisor (a
lieutenant post), was not with the use of force teams despite her background and training as the
leader of that team, and continued operating out of the facility’s central control center which is in
a different building. The major was on site, and some believed he was in charge, but technically
the sergeant was in charge. The major was receiving directives from the warden, who was on a
phone in Lincoln. The warden was also on the phone and receiving directives from Deputy
Director Madsen, who was also in Lincoln. Deputy Director Madsen was in contact with Chief
of Operations Diane Sabatka-Rine. The Deputy Warden offered to go to the facility, but was
never asked to report despite his over 20 years of experience at TSCI.
One internal NDCS report stated, “With the tools available and lack of direction, the situation
became confusing and chaotic.”

NDCS Reviews
As noted above, departmental leadership was aware of the June incident as it was happening.
Three days later the issue was raised as part of a meeting of NDCS security administrators at the
Department’s Central Office. Those in the meeting viewed video from the incident and discussed
what took place.

21

NDCS Policy 116.02, “Use of Force.”

16

Internal Critical Incident Review (ICIR)
NDCS policy requires a warden to review all use of force incidents that take place at their
facility. Upon review, the warden may identify possible further actions, including an internal
investigation or an ICIR. ICIRs are conducted by NDCS staff, who review the incident and make
findings and recommendations. TSCI leadership requested an ICIR the day after the incident.
The ICIR was assigned to be led by an administrator from the Nebraska State Penitentiary.
The completed ICIR report was submitted to the agency security administrator on July 26, 2021.
The report described the incident, included a timeline of the incident, and summarized the
numerous interviews the review team conducted. ICIR reports include a section titled, “Things
Done Well.” This ICIR found the one thing done well was the recognition of the escalating
behavior and the actions of staff to remove themselves from the gallery. However, once the
individual was isolated on the unit he was able to manufacture weapons, blockade the exits and
lose one-on-one contact with any staff member who may have been able to de-escalate him or
even convince him to lock down in his room.
Another section is titled, “Recommendations for Improvement.” The ICIR found that the staff
member’s targeting of the individual’s head was not a justified level of force and that this use of
force needed a formal review. The review team also noted that staff were aware chemical agents
and less-lethal munitions had little effect on him in the past, and that these staff had voiced for
the need for alternative tools to handle the situation. The ICIR recommended that the use of
tasers in these situations be reviewed, if used by CERT or a special operations response team
(SORT).22 The review also found that a sergeant was running shift and that the warden was not
aware that a sergeant was left in charge of the entire facility. As a result, the review team
recommended that the use of sergeants to run a shift and the corresponding approval process be
reviewed. Additionally, the team found the emergency should not have been declared, according

22

This is a reminder that one of the observations made after the December 2020 incident by the major was “When
direct impact rounds (40mm and/or pepper ball) are showing to be ineffective then alternate actions need to be
considered.”

17

to NDCS policy: that the major should have taken on the role of incident commander;23 and that
a review regarding the activation of Incident Management Teams be conducted.
Deputy Director Madsen signed the ICIR on August 11, 2021, and wrote a response to the
recommendations in the report. Those responses included assigning a separate investigation upon
completion of the Use of Force Review Committee’s review of this incident and not being
supportive of adding Tasers to equipment currently authorized for facility use.

Use of Force Review Committee
On August 16, 2021 the NDCS Use of Force Review Committee provided a response to Deputy
Director Madsen and the warden. The committee members found that there was a need for an
application of force but that the relationship between the resistance and the level of force was not
proportional. To explain that finding they wrote:
“If the inmate would have been advancing it would have made more sense. Staff knew the
inmate’s history and had dealt with him in situations like this prior. Staff involved stated
different/contradictory information/directions in regards to lethal/non-lethal force. Staff
was told not to advance until he did not have the weapons. Ultimately the inmate did
have weapons which would justify the use of lethal force.”
The committee also found that the extent of the subject’s injuries were proportional to his level
of resistance or threat to the staff and that the force was applied in good faith, based upon the
perceptions of a reasonably trained officer and the objectively reasonable facts the officer had at
the time of the incident. They did add the following explanation to the last finding:
“With the tools available and lack of direction, the situation became confusing and
chaotic. Everyone acted in good faith.”
The committee also listed numerous concerns and observations including:




Too many people were yelling at the individual;
The continuing order for the flash bangs was confusing;
The major gave the order to fill the pepper ball hoppers which gave them approval for
unlimited use despite knowing that the individual did not respond to chemical agents and
had a high pain tolerance;

23

An Officer in Charge, according to Policy 116.02, is a supervisor who is to be on the scene when there is a cell
extraction. An Incident Commander is someone who is command after an emergency is declared and who also is
responsible for approving the use of force plan. In this incident it would appear that the sergeant was thought by
some to be both.

18






More masks should have been provided to the staff due to the use of chemical agents;
Central Office approved the use of less lethal shotguns;
Since the sergeant was the CERT leader for TSCI, she would have been more effective in
the unit where she could have directly led the teams; and
The use of a five-point restraint was ordered to be discontinued at 0150 hours but he was
restrained until 0235 hours due to a shortage of staff.

The committee’s response also highlighted various statements made in the video footage by staff
that were concerning.

Additional Review
A separate review of the incident was conducted by Warden Loretta Wells of the Nebraska
Correctional Youth Facility on orders from Deputy Director Madsen. The written review was
provided to Deputy Director Madsen on September 20, 2021. This review was conducted to
provide additional information to NDCS leadership in order to determine whether disciplinary
action needed to be taken.
The review’s conclusions included:






It was not clear to some who the incident commander was during the incident;
The sergeant believed that a directive to use lethal force came from the major, who she
believed gave a direction to use lethal force if necessary, but the major said he did not do
this;
Filling the pepper ball launch hopper with more than 10 rounds was a violation of policy;
and
Lethal force was used on the individual, but there is disagreement among those involved
over whether or not a directive to do so was given.

NDCS initiated disciplinary action against three people based on the use of force event. Two
people were disciplined.
The Warden no longer works for NDCS.

19

Recorded Telephone Call
Recorded telephone calls between the major and the warden were requested from NDCS on
October 12, 2021. On October 13, 2021 the NDCS Chief of Staff notified the OIG via email that
“We’re looking into what might be retrieved. Will let you know.”

On October 18, 2021, the warden was informed via letter by Director Frakes that he had been
made aware on October 12, 2021 of a recorded telephone call between the major and the warden
that took place during the incident. During the call, the warden stated, “I’d love to shoot him
with a Mini-1424 and be done with it.” This letter followed up a telephone call on October 13,
2021 between the warden and Director Frakes about the recordings. Director Frakes later
confirmed that he became aware of the calls and listened to them as a result of that request.

Even though the calls were retrieved on October 12, 2021, they were not provided to the OIG
until October 19, 2021. In an interview, Director Frakes said that they were not provided until
later because he “needed time to process” the calls.25

Director and Chief of Operations Roles/Reactions
Director Frakes and Chief of Operations Sabatka-Rine were interviewed together regarding the
incident. As shared previously, Chief of Operations Sabatka-Rine was contacted by Deputy
Director Madsen during the incident, and he told her he would provide updates. They talked at
least one more time during the incident. Director Frakes was on vacation.
Regarding the ICIR, Director Frakes said this was a priority. He indicated he wanted it to be
completed by July 14, 2021, but it was not completed until mid-August.

24

A Mini-14 is a lightweight semi-automatic rifle.
A later request for additional information was also met with a delayed response, and it was only by prompting
by the OIG that the information was provided one month after first requested. Neb. Rev. Stat. § 47-908 requires
that employees of the Department shall cooperate with the OIG including the production of records and
information upon request. Neb. Rev. Stat. § 47-911 requires that parties subject to OIG oversight have “a
continuing obligation to immediately forward to the office any relevant records received, located, or generated
after the date of request.”
25

20

Director Frakes discontinued the use of the pepper ball launchers on July 29, 2021 due to
heightened concern following the incident and after learning about the similar incident in
December 2020. (There was also another incident at a different facility that raised concerns.) On
September 8, 2021 it was decided that pepper balls would be deployed in the future using a pistol
launcher that can only utilize six rounds at a time. However, NDCS special teams members
would be able to use the previous pepper ball launcher during an official deployment.
Regarding the individual’s injuries, Director Frakes said he did not consider the individual to
have been seriously injured. He did not provide any additional context for how he came to this
conclusion.
Neither person was aware of the December 2020 incident until after the June 2021 incident was
reported to them.

21

FINDINGS
1. The June 2021 incident was mishandled in many ways, from utilizing rules for a use of
force to the unacceptable amount of time it took to get the situation under control. In
reality, one individual with a serious mental illness armed with three self-made weapons
essentially became the focus of the prison for hours as many staff in the facility spent time away
from their job duties and the facility was placed in a locked-down status. An August 17, 2021
NDCS memo stated that the individual was left alone in the housing unit for around 15 minutes
and he did not have any weapons at that time. There was also no call for immediate assistance
initiated.26 The facility was short staffed at the time, and due to the decision to use two use of
force teams, a significant number of staff were diverted from their normal posts. Also, the
individual received numerous injuries to his body and other inmates were impacted by the
expansive use of chemical agents in their gallery.

2. During the incident, there was a lack of clear leadership and directions, in addition to a
chaotic and confusing scene, which resulted in the unnecessary use of lethal force and
excessive amounts of less-lethal force. As noted in NDCS’ internal reviews, the incident was
not handled appropriately. The ICIR team assesses the incident very well in their conclusion:
“As this incident evolved and an emergency was declared, the management
structure never evolved with it. Starting with the lack of response from the
facilities IMT to provide onsite oversight and management of the response and
the major’s not taking on the role of the Incident Commander…Although this
incident ended with no injuries to staff or serious injury to [the inmate], this
could have been resolved with significantly fewer amount of chemical agents
and less lethal munitions. The number of chemical agents used on the gallery
left the rest of the uninvolved inmates exposed for an extended period. Staff
involved in the response and management of this incident were aware that
these tactics have little effect on [the inmate] based on previous incidents. The
activation of all or part of NDCS’s tactical teams would have given TSCI the
needed resources to not only have staff specifically trained to handle this type
of situation but also allow them to have adequate staff to manage the nonaffected areas of the facility. Tactical teams likely could have achieved the
same result with significantly less force being used. Additionally, a lethal force
contingency was requested at one point during this incident. When faced with
a situation where you’re contemplating this level of force, tactical teams
26

August 17, 2021 ICIR Memorandum from Deputy Director Madsen to the warden.

22

should be activated. The staff that responded to this incident on the two UOF
teams were a mix of TSCI CERT members and general custody staff. This
incident involved over 20 staff, most of which were pulled from other posts,
leaving the non-affected areas of the facility vulnerable if another incident
would have occurred.”27
3. The experiences of the December 2020 use of force involving the individual did not
result in a better reaction to the use of force during the June 2021. During the 2020 incident,
a significant amount of chemical agents were deployed in the mini-yard despite those involved in
the response knowing the individual has a very high tolerance for chemical agents. It was also
known that when he is having such an episode, he is seemingly oblivious to pain, yet he was shot
repeatedly by pepper balls, 12-gauge stinger rounds, 40 mm impact rounds, and 12-gauge bean
bag rounds. Even though it was a serious incident which involved a significant amount of nonlethal force and chemical agents against an individual with a serious mental illness that resulted
in serious injuries to him, departmental leaders were apparently not informed about the
December 2020 incident until after the June 2021 incident.
4. Despite the individual’s history of serious mental illness, mental health staff’s
involvement in the response to this incident was minimal. NDCS policy provides minimal
guidance as far as the use of a licensed mental health professional with attempts to de-escalate a
situation. It does provide that the officer in charge review a list of individuals at the facility who
have been identified as being seriously mental ill or having an IMO. If it is found that someone is
on the list then the OIC is supposed to call mental health staff to determine the appropriate
course of action. The facility psychologist was in contact with TSCI during the incident. The
only person with a behavioral health background who actually interacted with him during this
incident was a behavioral health caseworker – not a licensed mental health provider – who was
also part of the use of force team. The individual was part of the use of force team and was
dressed in use of force attire. No licensed mental health staff attempted to de-escalate him,
despite his significant history of mental health and behavioral issues.

27

July 26, 2021 NDCS Internal Critical Incident Review Use of Force (page 25)

23

5. Reports after both the December 2020 incident and the June 2021 incident
recommended that other less-lethal options be available in some situations. Some
individuals are not as impacted by the exposure to chemical agents as other individuals. In this
incident, it was known that the individual had a high tolerance for chemical agents yet staff
continued to deploy chemical agents against him. The ICIR recommended that consideration be
given to allowing for the use of a taser in cases like this. This recommendation was not accepted
by NDCS leadership and there does not appear to be any plan in place to address future incidents
involving the need for an alternative less-lethal option.
6. NDCS deliberately delayed its response to the OIG’s requests for records in this case.
State statute requires that employees of the Department shall cooperate with the OIG including
the production of records and information upon request28, and that parties subject to OIG
oversight have “a continuing obligation to immediately forward to the office any relevant records
received, located, or generated after the date of request.”29
The Department’s Central Administration was in possession of recorded telephone calls shortly
after they were requested by the OIG; however, the Department gave a misleading explanation
regarding the status of the recordings. Director Frakes later indicated that he did not provide
them to the OIG after they were found because he “needed time to process” the calls. Delays of
this nature impede the OIG’s ability to conduct investigations and invite questions about the
chain of evidence.

7. The actions of the staff involved in the incident were not consistent with their training or
in accordance with the Department’s use of force policy. The major, Deputy Warden and
Warden all signed the use of force report, indicating that they reviewed all of the applicable
video and that the actions of the employees involved in the incident were consistent with training
and accordance with the Department’s use of force policy.30 The policy says that the “use of
force must always be reasonable and appropriate under any circumstance.”31 The individual was
28

Neb. Rev. Stat. § 47-908.
Neb. Rev. Stat. § 47-911.
30
NDCS Policy 116.02
31
Ibid.
29

24

shot at around 200 times. As teams entered the housing gallery and surrounded him, they
repeatedly yelled at him and shot at him. Their actions seemed to have no effect but to make him
more agitated. It was only after his body was pummeled by countless blows from the projectiles
fired at him that he laid on the ground and surrendered. This is in conflict with the policy. The
policy also states “Careful consideration must be given to the immediate circumstances before
chemical agents are used” and that “staff shall use their best judgment in determining if the use
of chemical agents is necessary for the safety of staff, inmate or the public.”32 As stated
previously, it was widely known that these had little to no impact on the individual.33

32
33

Ibid.
Attachment 1: Various pictures from the incident

25

RECOMMENDATIONS
The OIG recommends that NDCS take the following actions:
1. Update the Department’s use of force policy to include attempts at de-escalation by a
licensed mental health professional, when time allows, for incidents involving people with
known mental health issues. NDCS should also review related policies, including those for
mental health staff, to determine whether additional updates are needed to implement this
change. This process should be completed by May 1, 2023.

NDCS RESPONSE: Accept. NDCS Policy specifies that if time and circumstances permit, another
staff member or inmate Peer Support specialist may be used to deescalate an individual prior to using
force. This expectation applies to all incarcerated individuals, not just those with a known mental health
issue. Although not specified in policy, it is common practice to call upon licensed mental health
professionals to assist in de- escalating situations. A Policy Directive will be issued to implement this
current practice as an expectation (new language in bold). "If time and circumstances permit, staff should
use verbal skills and techniques to resolve conflicts which may include use of alternative resources such
as another staff member attempting to deescalate or shift focus with consideration of using a licensed
mental health provider or trained crisis negotiator if available, or, if available in the facility and
appropriate to the circumstances, allowing a trained inmate Peer Support specialist to resolve the
conflict.”

2. Implement a policy to develop individualized de-escalation plans for people with serious
mental illnesses who have histories of volatile interactions with staff. These plans should be
developed in consultation with security, housing and mental health staff; reviewed and updated
on a regular basis; and readily available to staff who would lead responses to serious incidents.
This policy should be implemented by May 1, 2023.
NDCS RESPONSE: Modify. De-escalation expectations are included in policy and applicable
to all incarcerated individuals. All individuals with a serious mental illness are required to have
an individualized treatment plan developed by a licensed mental health provider. These plans
may include information about de-escalation but would only be available to mental health team

26

members. Calling upon mental health professionals to assist in de-escalation will assist in this
effort.
OIG RESPONSE: The request to modify the recommendation provided information about the
current practice and would not result in any change being made by NDCS.
NDCS SECOND RESPONSE: Specific to recommendation #2 on the use of force report, the
changes made in response to recommendation #1 will ensure mental health professionals assist
with de-escalation when possible. As noted, individualized treatment plans that may include
information about de-escalation are only available to mental health team members.
3. Implement a reimbursement policy for on-call mental health staff by May 1, 2023.
NDCS RESPONSE: Reject. Reimbursement policies are governed by applicable labor contracts
and/or State Personnel Rules & Regulations. Non-exempt team members who serve in the
capacity of Officer-Of-The-Day (OD) are compensated consistent with the applicable labor
contract. In accordance with State Personnel Rules & Regulations, exempt team members who
serve in the capacity of OD are not eligible for overtime compensation or travel time. As such,
there are no provisions to allow call-back pay for exempt employees. As a business practice,
exempt employees often work more than a 40-hour week. Flexing time to offset excessive work
time is permitted as circumstances allow and with permission of the team member’s immediate
supervisor; however, there is no expectation of an hour-for-hour exchange.
4. Contract with an outside entity which specializes in training of first responders who
interact with individuals with a serious mental illness to provide additional training for
staff. Priority should be given to training staff at TSCI, NSP, RTC and NCCW who are more
likely to have to respond to incidents involving people with a serious mental illness. The Mental
Health Association provides training like this to various first responders, such as the Lincoln
Police Department. This effort should commence immediately.
NDCS RESPONSE: Modify: NDCS provides 16 hours of Core Correctional Practices training
and 24 hours of Crisis Intervention/Conflict Resolution training, four hours of mental health and
suicide issues training, consistent with the standards established by the American Correctional
Association. This includes training developed and facilitated by licensed mental health providers.
27

Each of these trainings focus, in part or wholly, on interpersonal communication and
communication with individuals with a mental illness. Our training curriculum is reviewed
annually; this recommendation will be forwarded for consideration during the next annual
review. In addition to NDCS training, a number of staff throughout the agency have attended the
Mental Health First Aid training with Region V and the Mental Health Association.34
OIG RESPONSE: Modification Accepted: The OIG would request that NDCS inform the OIG
when the training curriculum is next reviewed and whether the outcome of that review results in
any changes in this area.

34

Attachment 2: NDCS Response to OIG Report

28

Attachment 1

Attachment 2
Good Life. Great Mission.
DEPT OF CORRECTIONAL SERVICES

Jitri Pillon, Governor

January 20, 2023
Doug Koebernick, Inspector General
P.O. Box 90604
Lincoln, NE 68509-4604
Dear Mr. Koebernick:
On January 9, 2023, I received your report concerning the use of the Use of Force Incident which occurred at the Tecumseh State
Correctional Institution (TSCI) on June 14, 2021. The events that occurred do not represent the mission, vision, and values of this agency.
The review of reports and video I conducted quickly led me to the conclusion that the incident was mishandled and that the actions taken
in the incident were not in line with policy. Further, these actions do not reflect my expectations for the treatment of individuals in our
custody. Had I been made aware of the incident in December 2020, I can assure you it would also have been addressed. The fact that the
warden did not make Central Office aware of the December 2020 incident and found the actions taken in the June 2021 incident to be
appropriate speaks to the reason there was not a better response in the second incident. The "time to process" you mention regarding the
phone call between the major and warden referred to hearing a warden make such a statement and needing to try to make some sense
out of it. That statement was completely unacceptable and, again, is not in line with my expectations or this agency's values.
I appreciate the opportunity to respond to your recommendations in accordance with Nebraska Revised Statute NRS) §47-915.

Recommendation #1: Update the Department's use of force policy to include attempts at de-escalation by a licensed mental
health professional, when time allows, for incidents involving people with known mental health issues.
Accept. NDCS Policy specifies that if time and circumstances permit, another staff member or inmate Peer Support specialist may be used
to deescalate an individual prior to using force. This expectation applies to all incarcerated individuals, not just those with a known mental
health issue. Although not specified in policy, it is common practice to call upon licensed mental health professionals to assist in deescalating situations. A Policy Directive will be issued to implement this current practice as an expectation (new language in bold).
"If time and circumstances permit, staff should use verbal skills and techniques to resolve conflicts which may include use of
alternative resources such as another staff member attempting to deescalate or shift focus with consideration of using a
licensed mental health provider or trained crisis negotiator if available, or, if available in the facility and appropriate to the
circumstances, allowing a trained inmate Peer Support specialist to resolve the conflict."
Recommendation #2: Implement a policy to develop individualized de-escalation plans for people with serious mental
illnesses who have histories of volatile interactions with staff.

Modify. De-escalation expectations are included in policy and applicable to all incarcerated individuals. All individuals with a serious mental
illness are required to have an individualized treatment plan developed by a licensed mental health provider. These plans may include
Diane Sabatka-Rine, Interim Director
Department of Correctional Services
P.O. Box 94661
Lincoln, NE 68509-4661
Phone: 402·471-2654
Fax:_ 402-479-5623

correctlon.s.nebraska.gov

information about de-escalation but would only be available to mental health team members. Calling upon mental health professionals to
assist in de-escalation will assist in this effort.
Recommendation #3: Implement a reimbursement policy for on-call mental health staff by May 1, 2023.
Reject. Reimbursement policies are governed by applicable labor contracts and/or State Personnel Rules & Regulations. Non-exempt
team members who serve in the capacity of Officer-Of-The-Day (OD) are compensated consistent with the applicable labor contract. In
accordance with State Personnel Rules & Regulations, exempt team members who serve in the capacity of OD are not eligible for overtime
compensation or travel time. As such, there are no provisions to allow call-back pay for exempt employees. As a business practice, exempt
employees often work more than a 40-hour week. Flexing time to offset excessive work time is permitted as circumstances allow and with
permission of the team member's immediate supervisor; however, there is no expectation of an hour-for-hour exchange.
Recommendation #4: Contract with an outside entity which specializes in training of first responders who interact with
individuals with a serious mental illness to provide additional training for staff.

Modify: NDCS provides 16 hours of Core Correctional Practices training and 24 hours of Crisis Intervention/Conflict Resolution training,
four hours of mental health and suicide issues training, consistent with the standards established by the American Correctional Association.
This includes training developed and facilitated by licensed mental health providers. Each of these trainings focus, in part or wholly, on
interpersonal communication and communication with individuals with a mental illness. Our training curriculum is reviewed annually; this
recommendation will be forwarded for consideration during the next annual review. In addition to NDCS training, a number of staff
throughout the agency have attended the Mental Health First Aid training with Region V and the Mental Health Association.
Thank you for reviewing this use of force incident and sharing your observations. As a point of reinforcement, I share your concerns with
how this incident was handled. Also, please note that mentioning inmates by name/number is in conflict with Nebraska Revised Statute
§83-178, as could be including the photographs that would allow for identification of the individual by facial recognition as well as scars,
marks, tattoos.
Sincerely,
Diane Sabatka-Rine
Interim Director

c:

File