In August 2021, Doug Koebernick was touring the Tecumseh State Correctional Institution when an inmate waved the state’s prison watchdog over to his cell. The inmate wanted to show him something.
In his cell, stripped down to his boxers, the inmate had golf-ball sized welts and bruises across his body as well as three rubber pellets stuck in his skin. Later, Koebernick learned correctional staff had shot the inmate with about 200 pepperballs, rubber bullets, bean bags, chemical agents and several flash grenades while he was having a mental health crisis in June.
Not only that, but this wasn’t the first time it happened to the inmate who’s described as having a serious mental illness.
Correctional staff had fired about 100 rounds of similar projectiles at him during another mental health episode in December 2020.
“I’ve seen and reviewed a lot of uses of force in the six years I’ve been on the job. But I’d never seen anything like that … I was surprised that [it happened before] too. And I was surprised I never knew about either one of those instances,” Koebernick told the Reader. Koebernick is tasked with overseeing the state’s prisons in Nebraska’s Office of the Inspector General (OIG).
Koebernick’s office released findings about the incidents as well as recommendations for the Nebraska Department of Correctional Services (NDCS) in a report on Tuesday, May 2. The report criticizes the department for mishandling the June 2021 situation by using unnecessary force, not involving mental health staff, not creating clear emergency leadership and not alerting Koebernick of the inmate’s injuries, which it is required to do when injuries are significant. According to the report, then-Director of NDCS Scott Frakes told Koebernick the inmate’s injuries were not significant.
Two people were disciplined after the incident, though Koebernick could not disclose what specifically they were punished for or the nature of their punishment.
The report included several recommendations for policy changes that were shared with NDCS before the findings became public. Those include updating use- of-force policy, implementing de-escalation plans for people with serious mental illnesses, reimbursing travel fees for on-call mental health workers and providing more mental health training for staff. NDCS modified its use-of-force policy but declined to make other changes, communication from Diane Sabatka-Rine, the former interim director, shows in the report.
“I have reviewed the report and been advised of the incident, which occurred nearly two years ago,” NDCS Director Rob Jeffreys said in a statement. Jeffreys was hired April 3 and previously directed Illinois’ prison system. “The immediate need for change has been addressed. I concur with the response provided by former interim director Sabatka-Rine and am confident in the commitment of the NDCS team to provide a safe place for all who live and work within the agency.”
An NDCS spokesperson declined to answer additional questions.
Koebernick doesn’t think the recommendations have truly been accepted. NDCS updated its use-of-force policy to include mental health workers to resolve conflicts, but only “if available.”
However, he does think NDCS is taking this volatile, but rare, event seriously. He also doesn’t worry there’s more his office is missing as this case slipped by due to a logistical error which his office is taking steps to correct. Still, Koebernick hopes the story this report tells will spark conversations and lead to change within the department.
“They might be lukewarm on or reject [our recommendations],” Koebernick said. “But later on they’ll take another look at them and implement part of them or all of them. We can’t tell them what to do, but I think a lot of times we start a conversation that occurs within their department on how they can do things differently.”
Mental health has long been an issue in Nebraska’s prisons. In 2020, the Nebraska Advisory Committee to the U.S. Commission on Civil Rights found the state’s correctional system provided inadequate care and did more harm than good. Staffing shortages have also led to high vacancy rates among mental health workers.
Whether better mental health care would have impacted the June 2021 incident is hard to say, Koebernick said. The inmate has been incarcerated most of his life since he was 18 years old, the OIG report says. In that time he has racked up 450 misconduct reports that have cost him about 11.5 years of “good time,” which refers to time reduced from someone’s sentence for good behavior.
According to the report, the inmate has spent most of the past 12 years inside restrictive housing or mental health settings. As a result, he had better care than most inmates, Koebernick said, but there’s still more work that could be done to prevent or prepare for these kinds of mental health episodes in the future.
There was no licensed mental health provider present during the June 2021 incident, the report said. Instead, staff talked to the facility’s psychologist over the phone.
Mental health workers in Nebraska’s prisons are typically on-call outside normal work hours, the OIG report says, and don’t receive extra compensation for driving to and from the facility or working outside normally scheduled hours. A suggestion to provide that reimbursement to mental health workers was rejected by the prison as it would have to be included in contract bargaining, an official said.
One staff member assisting during the June 2021 incident was a behavioral health caseworker — but they were still dressed in the helmet and vest of the use-of-force team, which Koebernick said probably didn’t help.
“We really, really need solid and thorough and extensive mental health treatment throughout the system,” Koebernick said. “That’s a challenge in Nebraska’s system and everyone’s system.”
The Downward Spiral
Read more about how Nebraska does, and doesn’t, address the connection between crime and mental health care in the four-part Reader series.
The report touches on other types of medical care. As a result of being shot with about 200 different projectiles, the inmate had several bleeding wounds and large bruises on his body. He also had a broken finger medical staff didn’t identify, the report says. Then-director Frakes told Koebernick he received “verification” that the inmate did not suffer serious injuries.
“To me, this meets the definition [of a serious injury],” Koebernick said. “When I interviewed [Frakes] he said that it was not. It’s just a difference of opinion.”
On February 23 and 28 of 2022, the inmate requested medical attention to remove three rubber bullets that were embedded in his skin. He received a response that said the doctor “doesn’t intend to remove” because they were not infected, according to the report. On April 25 medical staff did remove one rubber bullet from the inmate’s thigh but were unable to remove more.
There were other problems apparent in how correctional staff responded to the incident, which Koebernick was able to piece together through video footage, interviews and internal reports.
The inmate had been aggressive and shown signs of having a mental health episode throughout the day in June 2021, according to the report. By 4:30 p.m. all other inmates and correctional staff had cleared the housing unit, a two-story room with cells lining the walls, as correctional staff convened a “use-of-force team.” The inmate barricaded the entrances to the housing unit and began assembling weapons, though the report isn’t specific about what those weapons were.
By 5:39 p.m. staff began firing pepper balls, a small projectile that explodes and fills the air with chemicals similar to pepper spray, the report says. Staff continued to fire projectiles for the next several hours as directions traveled through a long chain of command creating a scene that was “confusing and chaotic,” according to a separate NDCS report. By 8:40 p.m. two teams entered the housing unit and deployed flash bang grenades, which emit a bright flash and loud noise that can cause temporary blindness and loss of hearing. The inmate retreated to the shower and by 9:00 p.m. the teams subdued him. He was restrained in bed 10 minutes later and stayed there until 2:35 a.m.
The use of weapons was so prolific that, according to the report, other inmates were affected and allowed to shower or receive “breathing treatments.”
However, the inmate himself had a particularly high tolerance for the chemical agents, a fact staff knew at the time, according to the OIG report.
“Last time we unloaded on him and it didn’t affect him, so the more the merrier,” one unidentified staff member said during the incident, according to the OIG report.
“I’d love to shoot him with a [semi-automatic rifle] and be done with it,” the warden of the facility allegedly told a staff member in a phone call, a recording of which was obtained by Koebernick’s office, according to the report. The warden is no longer with the department, according to the report.
Koebernick said the fact alternatives weren’t utilized in a similar incident about six months later is a problem. However, he did not have suggestions for alternatives that should have been used.
One suggested alternative came from a separate NDCS internal report about the incident. It recommended staff be able to use tasers, but Deputy Director Robert Madsen did not support that recommendation at the time, according to the OIG report. Findings from other NDCS reports about the June 2021 incident include staff using too much force, unclear leadership and too many people yelling at the inmate.
NDCS reports also found staff violated policy by overfilling their pepperball launchers with more than 10 rounds. One staff member shot the inmate in the head with a pepperball, which is technically lethal force, though the report states it was unclear to staff there whether or not they had clearance to use lethal force.
As a result of the NDCS findings, then-Director Frakes discontinued the use of larger pepperball launchers. Staff must now use pistol-sized launchers that can only use six rounds at a time. Special employees can still use the launchers during official deployments, however.
Koebernick said his intention with this report is not to undermine the good work NDCS is doing. These incidents are rare and there are examples of NDCS staff making “thoughtful” choices that “took the inmate’s well-being into consideration,” the report states. However, it’s unavoidable that violent, volatile situations will happen and that use of force is justified. And even though this happened two years ago, Koebernick thinks these situations can be handled better.
“I hope we never see another [case] like it. I think the department has responded fairly well … but there’s a lot of lessons to be learned, and I hope that people will go through this, talk among themselves and figure out a way to avoid situations like that.”
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