“We have opened an investigation regarding the incident at the Missoula County Detention Facility,” said Bernie Franks-Ongoy, executive director of the Montana Advocacy Program.
The Montana Advocacy Program is a private, nonprofit law firm that promotes the rights of people with disabilities and investigates allegations of abuse or neglect. Depending on the outcome of the investigation, the group will either file a lawsuit against the Missoula jail or make public their findings in a published report. Or both.
The organization began its investigation after Missoula Detention Officer Mike Burch was suspended for disseminating a written incident report and details of the shooting to several media organizations, including the Missoulian.
Burch also notified the ACLU of Montana and the FBI, alleging that the conduct of Detention Officer Jason Sorini constituted an excessive use of force.
Meanwhile, Burch's job remains in limbo, awaiting the outcome of a county review board's internal investigation.
Missoula County Sheriff Mike McMeekin and Deputy County Attorney Mike Sehestedt both say they're unable to decide Burch's fate at the county until the FBI completes a separate investigation into possible civil rights violations.
But according to Jan Caldwell, an FBI spokeswoman, a Missoula agent concluded the investigation late last week and determined there were no civil rights violations.
“The agent said that, after his inquiry, there were no findings of a civil rights violation,” Caldwell said Monday.
“That comes as a great surprise to me,” said Alexandra Volkerts, the attorney investigating the incident for the Montana Advocacy Program.
“We are looking into whether or not there was a civil rights violation when the detention officer used the pepperball gun. But we're also looking at all the circumstances leading up to the shooting.”
Volkerts said she is also looking into “a lot of separate incidents” at the Missoula jail. She would not go into detail about the separate incidents, pending the outcome of her investigation, but said former inmates have come forward with complaints of neglect.
At the same time, Missoula County Attorney Fred Van Valkenburg is trying to decide whether to charge Burch with official misconduct for illegally disseminating confidential criminal justice information.
At the core of Burch's protest, and what is certainly a factor in the civil rights group's investigation, is the amount of time that lapsed before the woman was decontaminated from the OC-10 powder, a pepper derivative that irritates the eyes, nose and throat - essentially a powdered version of pepper spray.
According to Officer Jason Sorini's incident report, 44 minutes passed between the shooting and the point at which he instructed his fellow officers to shower, or decontaminate, the woman.
And while policies for decontamination vary between agencies, 44 minutes conflicts with policies governing the use of pepper spray in other Montana detention facilities, including Helena and the Montana State Prison.
Linda Moodry, a spokeswoman for the state prison, said the policy there requires officers to decontaminate an inmate immediately after they're sprayed with OC-10.
The female inmate in Missoula was arrested late July 1 on a misdemeanor charge of disorderly conduct, which carries a bail amount of $100. (The Missoulian is withholding the woman's name to protect her privacy.)
The woman became combative as soon as she was booked at the jail, according to Sorini's report. Her behavior was so threatening that a team of officers strapped her in a restraint chair until she agreed to cooperate, then placed her in a maximum security holding cell, where she fell asleep.
But several hours later, the woman climbed onto a desk inside her cell and threatened to “jump onto the floor head first and kill herself,” according to Sorini's incident report.
At 2:51 a.m., after the woman “failed to comply with verbal commands,” Officer Sorini, head of the jail's Disturbance Response Team, shot her five times with a pepperball gun, according to his incident report.
“I decided that due to the situation, and (the woman's) recent uncooperative history, I would employ the use of the pepperball gun to attempt to gain control of the situation,” Sorini wrote.
He fired two additional rounds at the wall near the woman's head, “causing a copious amount of powder to contaminate the area,” according to the report.
Sorini and several officers again strapped the inmate into a restraint chair and moved her to an adjacent holding cell while they mopped the contaminated area.
According to Missoula County Sheriff Mike McMeekin, it is the detention facility's general policy to decontaminate an inmate as soon the person becomes compliant and cooperative.
“We require the cooperation of the person who needs to be decontaminated,” McMeekin said during a recent interview. “In this case, as soon as she was cooperative, she was given the opportunity to shower.”
But according to Sorini's report, the woman complied with his orders immediately after she experienced the effects of the pepper powder.
“She had inhaled enough of the OC powder, produced during the second discharge, to cause her to cough which prevented her from screaming,” Sorini wrote in his report. “Her posture and body language conveyed to me that she was finished resisting. I gave her a moment to collect her thoughts and then once again I ordered her to lay face down on the bunk, on her stomach. (The woman) complied with my order, and I then directed her to place her hands at her side. After a moment's hesitation, she complied and I ordered her not to move her hands.”
McMeekin has staunchly defended Officer Sorini, and said a video recording of the incident, about five minutes in length, paints a different picture.
According to Sehestedt, “it sounds a lot worse in the report than it looks when you watch the DVD.”
Another factor working in Sorini's defense, McMeekin said, is that none of the on-duty officers knew of the woman's mental condition.
The Missoula County jail does maintain a contract with a mental health counselor who is on call, day or night, and can help counsel an inmate who is displaying suicidal tendencies.
That mental health counselor is Michael Nile, who spends about one or two hours each month at the detention facility.
“I don't remember ever having been called at home to come see an inmate,” Nile said. “But if she's an immediate danger to herself, I can't do anything about it. In those cases, the officers have to follow policy. This incident is a matter of policy.”
Reporter Tristan Scott can be reached at 523-5264 or at tscott@missoulian.com.
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