Why is Santa Clara County still using tear gas in jails?

Santa Clara County is weighing whether to let correctional officers continue to use tear gas to remove those incarcerated from their jail cells, amid pushback on whether this is a humane approach.

A new report by the county Office of Correction and Law Enforcement Monitoring acknowledged that incarcerated people involved in tear gas incidents should be housed in a more “therapeutic setting” than county jails—but until that becomes realistic, jail guards should continue to use tear gas with caution and oversight. At times, jail guards have used tear gas or other chemical agents on incarcerated people who refuse to come out of their cells—including those in mental health crises. The Aug. 29 report analyzed 17 incidents, with criminal justice advocates and officials clashing on the findings.

“Absolutely, yes we support … the continued use of (chemical agents),” said Michael Gennaco, a nationally recognized expert on law enforcement accountability, who heads the third-party monitor that conducted the report. “We would also continue to explore other options, this is an evolving world … if the use explodes into the 30s, 40s or 50s next year, that’s going to be a big deal for us.”

Gennaco monitors the county while it’s under consent decrees—court-monitored resolutions to disputes without admission of guilt—stemming from 2019 decisions in two lawsuits protesting conditions at the county jail—one involving inadequate mental health care and the other focusing on unnecessary and excessive use of force.

The report was first heard at the Sept. 7 Community Correction and Law Enforcement Monitoring Committee meeting with community leaders, criminal justice advocates—some who are formerly incarcerated—and residents. Many disagreed with Gennaco and the recommendations.

“It’s trauma on top of trauma,” said Raymond Goins, an advocate with Silicon Valley De-Bug, who said he was gassed while incarcerated. “Deploying gas on a population of people because of their (mental illness) is not something that should be acceptable … especially when Santa Clara County is asking for all this funding for mental health.”

Donovan Castillero, another advocate from Silicon Valley De-Bug, a criminal justice advocacy group, said while he was incarcerated at San Quentin, people shared they would rather risk being shot by jail guards than be exposed to chemical agents in the yard.

“When there’s an incident everybody has to get down or risk being shot by the officers,” Castillero said. “People would see they’re downwind of the gas and would get up and run away, risking being shot just to get away from the gas.”

The report came at the direction of the Santa Clara County Board of Supervisors in June, after receiving the annual record of military equipment and use required by AB 481 to seek approval for the equipment’s continued use. But Sheriff Robert Jonsen told the committee he disapproved of the term “chemical warfare” as advocates used when describing the gasses being requested for use on incarcerated people, one of which can be bought on Amazon.

“That’s an overstatement beyond anything I can imagine, we are not using chemicals that have been banned by the military,” Jonsen said. “These are things that we’re using to the best of our ability to minimize harm for those that are incarcerated.”

Jonsen said there were no “lasting injuries” with the 17 incidents analyzed in the report—where jail guards used gas to extract people from their cells—compared to a physical extraction which would more likely result in injury to the incarcerated person and staff. The report also recommends prohibiting using gas on people with known respiratory issues.

Dr. Danit Bar Ziv, chief of custody psychiatry for the main county jail and Elmwood Correctional Facility, said in her experience using a chemical agent to remove someone from their cell is more humane than any other present alternative.

“Just imagine the alternative of a group of people coming and grabbing you physically and holding you down,” Bar Ziv told the committee.

Some of the cell extractions happen during the lengthy process of getting permission to force an incarcerated person to take medication they are refusing. Bar Ziv said of the roughly 3,000 people in county jail facilities at any given time, half or more are taking psychotropic medications.

“We are talking about patients that are in situations … They don’t eat or don’t drink because they think the food is poisoned, or the water is poisoned. They get to the point of smearing feces or eating feces and banging their head on the wall,” Bar Ziv said. “It’s really, really cruel not to help those people.”

Supervisors approved a new jail complex in 2020 with a price tag of $390 million, but delays caused the price to soar to more than $689 million last year. Advocates have urged the county to scrap the jail project and build a mental health facility instead.

Contact Ben at [email protected] or follow @B1rwin on Twitter.