CALIFORNIA

Lawyer for L.A. County sheriff's sergeant wants 'potty watch' case dismissed

David Moser, a newly promoted Los Angeles County sheriff's sergeant, was in his first day of training at the North County Correctional Facility in Castaic when he saw an inmate handcuffed to a wall.

Omar Estrada was suspected of concealing contraband in his rectum, and jail officials were waiting for him to use the toilet so they could retrieve it. Moser, who was observing the incident with his training officer, asked whether this was standard protocol, according to a motion filed by his attorney.

He was assured that it was, the motion said, and the instructions for restraining inmates during contraband watch were spelled out on a nearby clipboard.

Moser and two other Los Angeles County sheriff's officials now face a misdemeanor charge of inflicting cruel and unusual punishment on the inmate.

In the motion filed Friday, Moser's attorney argued that the case should be dismissed. Moser’s actions were legally justified because he was abiding by the jail's written guidelines and his supervisors’ assurances, the attorney, James Cunningham, wrote.

Cunningham also argued that prosecutors have not sufficiently explained the allegations against his client. The relevant part of the statute used to charge Moser — which dates from 1872 and includes references to thumbscrews and “tricing,” or hoisting an inmate by a rope — is too vague, he wrote. Cunningham said he believes this is the first time the statute has been used to charge anyone in the 144 years it has been on the books.

“In essence, the people seek to prosecute LASD personnel for conduct that was authorized and pursuant to policy, and not otherwise cruel and unusual,” Cunningham wrote.

Deputy Dist. Atty. Arisa Mattson said she could not comment on the motion.

Moser and his codefendants — Deputy James Hawkins and retired Sgt. Rex Taylor — were scheduled to be arraigned last week. The arraignment was postponed until Feb. 18 so that Mattson could file a response to the motion.

Hawkins is also charged with misdemeanor assault in connection with the Sept. 5, 2014, incident. Hawkins and Moser have been relieved of duty without pay.

Attorneys for Hawkins and Taylor did not respond to requests for comment but said in court that they plan to join Cunningham’s motion to dismiss the charges.

Moser, 51, began working for the Sheriff’s Department in 1999, according to the motion. When he arrived at the Castaic facility for his sergeant’s training, he had never witnessed a contraband watch, known informally as “potty watch.”

Estrada had been restrained for less than five hours when Moser saw him, the motion said. After Moser read the written contraband watch policy for the first time, he left for a different part of the jail, his attorney wrote.

According to a spokeswoman for the district attorney’s office, Estrada suffered injuries to his wrists and midsection. She would not say how long he was restrained but called it “an extended period of time,” noting that Estrada was in “various states of undress.”

Hawkins’ attorney, Vicki Podberesky, said in an interview last month that she had viewed a video showing Estrada sitting on a stainless-steel bench with his hands cuffed to the wall.

Podberesky did not know how long Estrada was handcuffed. She said it was not as long as the total detention, which she believed was 11 to 13 hours.

The sole evidence for the misdemeanor assault charge was an allegation from Estrada that was not backed up by video or physical evidence, Podberesky said.

The Castaic facility’s contraband watch policy had been in place since April 2014 and applied only to that facility, not the other county jails. It stated that deputies “shall” handcuff inmates to wall brackets in a seated position and that inmates' feet “may” also be shackled to the floor. The inmate should be dressed only in boxer shorts and socks, the policy specified.

The department policy at the time directed each facility to develop its own rules.

Corrections experts say handcuffing inmates to a wall is improper and inhumane. Inmates must be prevented from secretly disposing of contraband, but there are better ways to restrain them, the experts said.

When top Sheriff's Department officials found out about the North County facility's policy in February 2015, they replaced it with a new departmentwide policy specifying that inmates' hands should be cuffed to their waists but not to any fixed object.

Fourteen employees, including the head of the facility, Capt. Anselmo Gonzalez, were reassigned to positions in which they had no contact with inmates.

Twenty-four cases were sent to the district attorney's office for possible prosecution.

So far, the Estrada case is the only one to result in charges. Sixteen handcuffing cases have been rejected by prosecutors, including one contraband watch that lasted 11 hours, and a case in which an inmate sustained injuries to his wrists after being handcuffed for eight to nine hours. Inmates were typically handcuffed while half-naked or even fully naked, sometimes with their feet shackled to the floor, according to memos by prosecutors.

The new policy, which instructs deputies to create a “dry cell” with the inmate fully clothed and restrained only by waist cuffs, resembles the one used by the California prison system.

The toilet is taped shut to prevent the inmate from flushing any contraband, and a deputy must always be present to help with food, water and bathroom needs.

cindy.chang@latimes.com

Twitter: @cindychangLA

Copyright © 2016, Los Angeles Times
A version of this article appeared in print on January 14, 2016, in the News section of the Los Angeles Times with the headline "Jailer's lawyer offers defense - Attorney wants `potty watch' misdemeanor charge dismissed, says client followed rules." — Today's paperToday's paper | Subscribe
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