Only California Uses Deadly Force in Inmate Fights

TIMES STAFF WRITERS

Despite efforts to cut down on prison shootings, guards in California continue to kill and wound inmates engaged in fistfights and melees, a practice unheard of in every other state.

Since late 1994, when the Department of Corrections shooting policy came under criticism for its role in widespread inmate deaths, 12 prisoners have been shot dead and 32 wounded by guards firing assault rifles to stop fights.

In all other states combined, statistics and interviews show, only six inmates were fatally shot by guards in the same period--all of them while trying to escape. In no other state do guards shoot at inmate fighters, choosing instead to break up brawls and melees with pepper spray, tactical teams or warning shots.

Even in Texas, a state whose sprawling prison system is often compared to California's for its hard-nosed tactics and violent gangs, correctional officers shot and killed only one inmate--an escapee--during the past four years.

None of California's 12 recent fatal shootings took place at Corcoran State Prison, where seven inmates were shot dead from 1989 to 1994, making it at the time the deadliest prison in America.

The 44 fatal and serious shootings since late 1994 have occurred at maximum security prisons up and down the state. Only one of the inmates was armed with a weapon or was inflicting serious injury at the time the fatal shot was fired, a Times review of the cases has found. No corrections officer was facing peril, and not a single inmate was attempting to escape.

More than three-quarters of the shootings were deemed proper by Department of Corrections review boards. Only three gunners received any form of discipline--two were given reprimands and one served a 180-day suspension.

"Shooting to break up a fight is something you never see outside of California. It just doesn't occur," said Lanson Newsome, a former deputy commissioner of Georgia state corrections and now a consultant who has reviewed dozens of California prison shootings. "Fistfights can be stopped very easily and are stopped all over the country without deadly force.

"In the vast majority of cases in California, there's really no excuse for shooting. It's just the way they've been trained."

State corrections director Cal Terhune said the 12 fatal shootings and 32 injuries, although disturbing, represent a sharp drop from a few years earlier when Corcoran, Pelican Bay, Old Folsom and Tehachapi prisons were convulsed with fights and gunshots.

From 1989 to late 1994, according to official figures, correctional officers in California killed 24 inmates and wounded 175 statewide, many of these shootings during fistfights and other altercations in which no inmates wielded weapons.

Terhune, who took over the top job in 1997, cites revisions in the official shooting policy and better training for the declining numbers over the last four years. "I am very pleased in the direction that it's gone. We're going to continue to push, through alternatives and training, to really make the use of lethal force the absolute minimum, as a last resort," he said.

"Unfortunately, we are doing it at absolutely the worst time. We've had an upturn in gang activities, skirmishes. So far we've been lucky. . . . If we can keep the killings down--both inmate-on-inmate and our own shootings during this particular time--it's going to be a pretty good test."

California is one of a handful of states in which guards carry high-powered rifles inside maximum security units. Most states limit firearms to a few guard towers that ring a prison.

Corrections officials cite the singular nature of California's vast and complex system--33 prisons with 159,000 inmates, many of them rival gang members--as rationale for gunner posts inside the units. They contend that the uniquely violent nature of California prison gangs compels them to use deadly force on occasion.

Moreover, the state's prison guard union contends that guns are a necessary equalizer in a prison system that has one of the lowest officer-to-inmate ratios in the nation.

But critics say that prison guards have used their guns far too often. They maintain that changes in shooting practices--changes that the state undertook in 1994 amid newspaper reports and an FBI investigation of one shooting--have not gone nearly far enough. They say the continued practice of shooting and killing inmates to prevent fights from turning deadly is illogical and runs counter to the methods of every other state.

The practice has resulted in numerous lawsuits costing California taxpayers at least $6 million in legal fees and damage awards since 1994.

"The other states have found a way to protect officer safety and yet at the same time prevent the taking of life," said James Chanin, a Berkeley attorney who won a $300,000 settlement from the state on behalf of the victim's family in a 1993 prison shooting death. "It's too high a price, both in dollars and in lives."

In the wake of recent state legislative hearings that focused on allegations of brutality and official cover-up at Corcoran, The Times examined dozens of inmate shootings beyond the walls of the San Joaquin Valley prison and interviewed lawyers, shooting experts and corrections officials in every region of the country. The review of California shootings over the past decade shows that guards may not be setting up rival inmates to fight as they did in Corcoran, but the end result is often the same.

Deadly force is used to break up fights and melees that haven't turned deadly.

A Death in Salinas

Like so many of the recent incidents, the events leading to the death of inmate Mark Anthony Perez in February seemed routine. Perez, a 25-year-old San Jose man convicted of assault with a deadly weapon, was fighting in a tiny recreation yard at Salinas Valley State Prison.

His opponent, Darren Halliwell, was bigger and stronger. Halliwell had already shaken off the blows of another inmate wielding a sharp object. That inmate had left the scene and it was just Halliwell and Perez, neither landing anything close to a knockout, according to the Monterey County district attorney's office and inmate witnesses.

Then came a shout to stop fighting and a warning shot of nonlethal wood blocks fired by an officer in the control booth above. Before the officer could discharge a second warning round, a gunner in a nearby tower fired the fatal bullet.

The district attorney cleared that gunner of any wrongdoing even though he had fired while the other officer had control of the scene.

"My test is a simple one," said Assistant Dist. Atty. Terry Spitz. "Could I convince a jury beyond a reasonable doubt [that the gunner] had no basis for believing he had to act to defend Halliwell? Under that standard, a jury would never return a verdict of guilty. That's not to say if you look at it from a civil standard, a jury would not find differently."

Perez's family is pursuing a civil lawsuit.

"Why did he shoot? They were just fighting. They were just punching each other," Emma Perez, the victim's widow, said. "These guns are shoot-to-kill guns, not guns to stop someone from fighting. The bullet just shattered my husband's leg bone. The coroner said it was like a snowstorm inside."

Many of the 44 fatal and serious shootings since 1994, like the Perez incident, took place in recreation yards or housing units built with special features that allow guards almost complete control. Inside these high-security units, every movement to and from a cell is monitored, and guards perform complete body checks for homemade weapons.

Such control, experts say, should reduce the need for deadly force. In other states, these units are the settings in which guards utilize nonlethal measures such as batons, pepper spray and tear gas.

"Shooting at inmates involved in a fistfight sounds a little farfetched," said Chas Simmons, a research analyst for the Alabama Department of Corrections. "You wouldn't do it if you were working for the police department or the sheriff's office. And if you're shooting real bullets, make no mistake, you're trying to kill them."

Many states, including Alabama, Texas, Mississippi, Illinois, Indiana, Pennsylvania and Ohio, respond to prison violence by employing emergency response teams specially trained to break up inmate fights. A few states, such as New York, have shot at inmate fighters in years past but only in the most dire situations, such as during a deadly stabbing.

"We have found a way to be effective without shooting at inmates," said Pam Pattison of the Indiana corrections system. "We always fire a warning shot first. Then we send in emergency response teams with radios and pepper spray."

"We tell inmates to stop, and if they don't, we send in a team and pull them off each other," said Joe Andrews of the Ohio corrections department, which houses 50,000 inmates, the fifth-largest number in the country. "We've never had an officer killed, and I can't recall any [officers] who were severely injured while breaking up a fight."

Although California guards are also equipped with radios, batons and pepper spray, they often shoot before summoning emergency response teams and exhausting less-lethal options, corrections officials concede.

Part of the problem is rooted in a shooting practice that varies from prison to prison. All of California's 26 maximum security lockups are supposed to adhere to a single state policy that allows deadly force only as a "last resort," after guards have considered or tried other "reasonable and available" means to stop a fight.

But The Times found that several prisons cling to their own conflicting practices.

At Salinas Valley and Pleasant Valley, officers have failed to employ or consider less lethal options before firing deadly shots at fighting inmates, according to official incident reports. At other prisons, such as Corcoran and Pelican Bay, firing a deadly shot is now all but forbidden unless an inmate is escaping or endangering staff.

It is state policy for guards to issue a verbal command to stop fighting and then to fire a wood or rubber block warning shot. If the fight continues and one inmate poses "imminent great bodily harm" to another, gunners are trained to chamber a real bullet and fire at the aggressor's torso.

But a breakdown of shootings over the past decade reveals that imminent great bodily harm means different things to different guards. Many officers have responded with deadly force even in the absence of inmate weapons or injury. Some gunners didn't fire a warning shot before the fatal shot.

And despite a state policy that every shot must be a "clear shot," gunners routinely fired into a tangle of combatants. In at least 10 cases over the past decade, The Times found, the bullet missed the intended target and killed or injured the wrong inmate.

"One of the things we needed to stress more in training was you have to have a clear shot," said Steve Cambra, a deputy director for state corrections. "Obviously, we didn't stress that enough because we've had too many situations where the officer has hit a victim."

Until recently, there has been little incentive to change. None of the 24 fatal shootings from 1989 to late 1994 was found to be improper by department review boards, The Times found. Over the past four years, in the face of media scrutiny and an ongoing federal investigation, four of the 12 fatal shootings and six of the injuries have been ruled "not in compliance."

Despite this new willingness to judge the shootings critically, the department's discipline has amounted to the two reprimands and suspension since late 1994.

And not a single gunner has been prosecuted by a local district attorney's office.

The Past Becomes the Future

Guards in California prisons added firepower after the rise of militant black inmates and prison gangs in the 1960s and '70s. At Soledad and San Quentin, guards and inmates alike were thrown off tiers, stabbed and killed during major riots.

Like war, the battles spawned myth and shaped the thinking of many officers who would later assume command of the Corrections Department. And it colored the rhetoric of a clique of guards who would go on to build a union, the California Correctional Peace Officers Assn., into one of the most powerful political forces in the state.

The violence reinforced the view that prison gangs in California were a more virulent strain, that guards needed to be armed and that prisons needed to be designed with a new architecture--one that promised absolute control.

"One of the founding tenets in this [new] design was that the firepower was part of the design," said Terhune. "And because of the design and the firepower, it enables [the department] to reduce the staffing."

Before Corcoran and Pelican Bay opened in 1989 and 1990, California concentrated its most violent and problem inmates inside high-security units at the California Correctional Institute at Tehachapi.

As part of state policy designed to make rival prisoners get along, guards began mixing enemy gang members into the same small exercise yards. Into this mix were thrown ex-gang members and small-time criminals sent to Tehachapi's administrative discipline units for minor transgressions, including filing complaints about poor prison conditions, according to accounts from inside the prison.

The integrated yard policy at Tehachapi backfired. It baited sworn enemies into repeated fights and endangered former gang members who were promised protection for telling their secrets. The fights brought a kind of siege mentality to the prison. Guards soon began shooting at rival inmates engaged in fistfights.

Four inmates were shot and killed at Tehachapi from 1989 to 1993, according to official reports.

One was involved in a small melee, and three others were engaged in stand-up fistfights in which no warning shots were fired, no weapons were found and no inmates had inflicted any serious injuries. The bullets that killed them were designed not to exit the body but to explode on impact.

Vincent Eugene Durham, a 23-year-old Los Angeles native, had been imprisoned for grand theft and was six months shy of his April 1992 release date when he was gunned down in a fistfight.

"You mean to tell me all the guards in that prison can't break up two guys fighting?" asked his uncle, Willie Fields. "If you have to use pepper spray or batons, fine. Anything short of shooting and killing.

"It was like that guard took aim on an animal. Just like he was hunting. Aimed at his head, his temple, and fired."

Like Tehachapi's other shootings, the department's review board found that the gunner had justifiable cause to kill Durham.

Shootings Draw Controversy

After the security housing unit with its problem inmates shifted from Tehachapi to Corcoran, so did the violence. From 1989 to 1994, seven inmates were fatally shot and 43 wounded by guards firing rifles into exercise yards at Corcoran.

A few disgruntled Corcoran staffers decided in 1992 they would try something new to break up the fights:

"We sent a team to respond to a fight and no one got hurt and we resolved the conflict without discharging a firearm," recalled Steve Rigg, a former lieutenant who revealed abuses at Corcoran to the FBI. "The higher-ups in Sacramento heard about it and said, 'You will not do that again. You will not put staff in jeopardy.'

"That became a turning point. The Corcoran way of quelling violence--shooting first and then asking questions--became the state's way."

Throughout the early to mid-1990s, Calipatria State Prison, amid the farm fields of Imperial Valley, nearly matched Corcoran with 22 fatal and serious shootings.

In September 1993, a 29-year-old drug violator named Robert Moore became embroiled in a fistfight with his cellmate, according to the state's account. The two men initially heeded an officer's warning to stop fighting; then Moore resumed his attack. The gunner fired a warning shot followed by a fatal shot that struck Moore in the neck, fragments of bone and bullet slicing through the main artery in his heart.

The state shooting review board cleared the gunner and determined that he killed Moore by mistake, intending only to disable him. Moore's mother sued, arguing that the 9-millimeter bullet was deadly by design. The officer had fired even though Moore wasn't wielding a weapon or inflicting great bodily harm. She won an out-of-court settlement for $300,000.

In late 1994, with the deaths and lawsuits mounting, the state's shooting practices came under harsh attack in a series of articles in the Orange County Register. The FBI had already launched a probe into one fatal shooting at Corcoran. This was followed by a far-reaching federal court opinion in 1995 that found that state prison policies "promoted the use of lethalforce" in 20 fatal and serious shootings at Pelican Bay State Prison.

Under pressure, corrections officials conceded that the state policy on deadly force was vague and poorly written and that officers were unclear on what constituted great bodily harm.

Some guards were told by supervisors that a wound that required seven stitches qualified; others were told that if one fighter carried a weapon as small as an ordinary staple, that would dictate the use of a firearm.

As part of the conflicting standards, some prisons had issued gas guns that fired wood blocks as a way to stop fistfights without deadly force. Other wardens sneered at the new weapon.

"We went through the shooting policy and tweaked it," Cambra said. "We changed our training, used more situational-based scenarios . . . changed the lesson plan. And [we] stressed putting the [gas gun] in the control booth to give the officer a less than lethal alternative."

Signs of Change

Cambra and director Terhune said the downturn in fatal and serious shootings during the past four years is proof of the department's more restrained approach. Of the 12 fatal shootings since late 1994, four involved inmates engaged in fistfights, seven happened during melees and one during a riot.

Although the numbers have come down, California still stands alone in its readiness to use deadly force. Other states rarely consider the use of deadly force even in larger melees and riots with weapons.

"We run a different kind of system than California," said Jim Flateau of the New York Department of Corrections. "We have many officers down in the yard, and they will break up a fight. If an inmate has a weapon, our officers can and do fire warning shots, and inmates almost always comply."

Martin Horn, head of the Pennsylvania Department of Corrections, said he hesitated to second-guess California because each prison population presents its own challenges.

"If an inmate has a [knife], we will isolate and contain it without the use of a firearm," Horn said. "Breaking up fights, that's part of what an officer gets paid to do here. Some of our officers do get hurt, but we have a relatively small number of inmate-on-inmate assaults."

In Texas, second only to California with 144,000 inmates, deadly force is almost always reserved for inmates attempting to escape.

"We use gas and human teams to quell [riots]," said Larry Todd of the Texas Department of Corrections. "Routine fights, of which we have plenty, are broken up with the use-of-force teams or an abundance of pepper spray."

A Riot at New Folsom

No one disputes that what took place at New Folsom prison on Sept. 27, 1996, was a riot between Latino and black inmates armed with knives and other homemade weapons. Scores of fighters in the main exercise yard refused to heed verbal and gunshot warnings. When it was over, one Latino inmate lay dead and four black inmates were wounded.

At a glance, it would seem the riot was just the sort of spasm that would warrant the use of deadly force. But lawyers representing the injured prisoners and the family of the dead inmate, Victor Flores, say an examination of the shooting reveals numerous missteps by officers.

According to deposition testimony in an ongoing civil case, prison supervisors were warned about the likelihood of racial violence that morning but failed to intervene. One reason is they were busy planning a retirement dinner for an associate warden. Any warning of impending violence, the attorneys contend, should have shut down the recreation yard that day.

If the 22-year-old Flores was wielding a weapon during the fighting, it was nowhere to be found when the gunner took aim. Flores had not only ceased trading blows with any black inmates, but he was in a prostrate position when the fatal shot rang out, according to his attorneys.

They point to an autopsy report, which shows the bullet entering Flores' buttock and lodging in his midsection, as proof that he was lying on the ground. The officer who fired said Flores was crouched slightly but still moving quickly toward the backs of other guards. Fearing harm, he decided to fire a shot to disable Flores.

Prison officials waited several months before notifying the Sacramento County district attorney's office of the fatal shooting. Prosecutors investigated the incident and concluded that the gunner had reason to assume that Flores carried a weapon and was rushing toward officers, even though no weapon was found.

A corrections review board, 17 months after the incident, determined that the shooting failed to comply with department policy. Director Terhune, however, decided against any discipline.

In a letter to the gunner, then-acting Warden Suzan Hubbard said she empathized with his difficult job: "I am pleased to advise you that after much scrutiny . . . no adverse personnel action will be taken."

Questions and Deaths Continue

No prison over the past two years has used more deadly force than High Desert in Susanville. The $273-million state-of-the-art facility below the juniper- and sage-covered mountains in Lassen County is one of the most beleaguered in the state.

Three wardens have come and gone since the prison opened two years ago. The new warden still lacks the resources for job training and vocational programs that help hold down violence at other prisons. Nearly half the 4,100 inmates are given nothing to do and lack even pencils to write family. The prison spends weeks at a time in 24-hour lock-down.

Critics say the prison's insistence on mixing sworn enemy gangs into a single exercise yard--the same integration policy that tore apart Tehachapi and Corcoran--has led to racial warfare. Guards have shot and killed three inmates and wounded 11 in six shootings since 1996.

Inmates and lawyers representing the victims allege that the prison officers set up Corcoran-style fights and larger melees, and then use the violence as an excuse to gun down inmates. The state denies it, and the FBI has been investigating.

The state's most recent fatal prison shooting took place in May when a guard at Pleasant Valley State Prison in Coalinga gunned down a convicted drug dealer during the welter of a dining hall melee.

Octavio Orozco, 23, was not among the initial fighters but was helping other Latino inmates kick a downed black inmate before he was struck in the head by a .223-caliber bullet, according to an official incident report.

No warning shot was fired, and no weapon was found on Orozco or any of the other half-dozen fighters. The black inmate whose life was said to be in danger--the gunner's reason for firing the deadly shot--had no serious injuries.

"Octavio died for nothing," said his sister Maria Orozco, one of eight siblings who grew up in Pomona and Baldwin Park.

"I asked one of the officers, 'Is it your procedure to shoot prisoners in the head when they're fighting?' He said, 'No, we were trying to disable him. It was meant to hit him in the shoulder.' "

Some top corrections officials acknowledge that certain prisons, including High Desert and Salinas Valley, remain hot spots for questionable shootings and that some wardens still hesitate to utilize emergency response teams.

Over the past year, Terhune has dispatched deputy director Cambra to prisons throughout the state to underscore that bullets are a last resort.

"I'm trying to go around to all of them," Cambra said. He said in his visits he underscores the importance of supervisors sitting down with officers and reviewing, point by point, past shootings. That is "probably better training than two hours of classroom instruction."

Don Novey, president of the prison guards union, says the state should double its academy training for new correctional officers from six weeks to 12 weeks. "I don't think we have near enough firepower training in life-and-death situations. It's way behind the curve."

Although Novey acknowledges that side-handle batons and pepper spray can be effective weapons in breaking up inmate fights, he says the size and violent makeup of California prisons dictate the use of guns. He points out that in an effort to save money, California operates its prisons with fewer guards than other states--but arms them.

"How else are you going to control 4,000 to 5,000 inmates with the leanest staffing ratio in the nation?" he said. "Most inmates know that a weapon is up there for their protection too. If that officer doesn't quell the disturbance, there are going to be several people stabbed."

He said that if the shootings do raise questions, such as the 1994 killing of a Corcoran inmate that prompted the FBI probe, guards are the victims of bad policy. "We match up well with the FBI, and they damn well know it. We've never had a Waco or a Ruby Ridge in our prison system."

The Orozco shooting, as well as the fatal shooting of Perez this year at Salinas Valley, is still under review by the Department of Corrections.

For years, officials concede, the internal review boards that judged fatal shootings were rubber stamps consisting of high-ranking officers who often worked at the same prison where the shootings took place. If a gunner said certain key words--that he saw the "glint" of a weapon or the "slashing" motion of an inmate--it was enough for the review board to clear the shooting, even if no weapon was found.

Cambra said that is changing. Review boards, no longer stacked with insiders, are now finding more officers in violation of policy. But critics say the department continues to shy away from punishing gunners who have crossed the line.

"The fact that the department has ruled a shooting outside of policy has no deterrent effect if you're not going to punish the officer," said John Scott, a San Francisco attorney who has sued the Department of Corrections in two wrongful death and injury cases.

"If you want to know why an officer can shoot and kill someone and still be promoted, you need to look at the power of the prison guard union and its legions of lawyers. The department just doesn't want to take them on in disciplinary matters," Scott said.

Director Terhune denies that the union has a say-so in discipline, but he agrees that his department needs to do more to cut down on fatal and serious shootings. Toward that goal, he continues to test less lethal options such as water cannons to break up fights.

"It's possible you could get it down to zero," he said. "We may find something that is totally nonlethal but still manages to control . . . major disturbances. It's possible you could get it down to zero, but there would be a lot of [inmate-on-inmate] fatalities."

(BEGIN TEXT OF INFOBOX / INFOGRAPHIC)

Danger Zone

The following compares figures for the state's prison system with those for the rest of the country.

12 Fighting inmates shot to death by California prison guards since late 1994.

6 Inmates shot to death by prison guards in all other states since 1994.

0 Inmates shot to death in California while trying to escape.

6 Inmates shot to death in all other states while trying to escape.

32 Inmates wounded by California prison guards since late 1994.

Sources: State Corrections Department, Corrections Compendium

(BEGIN TEXT OF INFOBOX / INFOGRAPHIC)

Shootings of Inmates

Since late 1994, when the Department of Corrections' shooting policy first came under harsh criticism for its role in widespread inmate deaths, 12 more prisoners have been fatally shot by guards while fighting. Here is a breakdown of those 12 incidents by institution.

(1) Pelican Bay State Prison

Dead: 1

Sept. 21, 1994: Roger White, 27, shot in head during a fight between two inmates in which White was wielding a steak knife. Warning shot fired.

*

(2) High Desert State Prison

Dead: 3

Feb. 4, 1998: David Soloman Torres, 29, shot in lower back during a melee involving 18 inmates. Warning shot fired.

Dec. 26, 1997: John Pruitt, 29, shot in buttock during melee involving 30 inmates. Warning shots fired.

June 19, 1996: Refugio Ruano, 32, shot in head during melee involving 22 inmates. Warning shot fired.

*

(3) California State Prison (New Folsom)

Dead: 1

Sept. 27, 1996: Victor Flores, 22, shot at the end of a riot involving 200 inmates, after which 56 knives were found. Flores was not carrying a weapon. Warning shot fired.

*

(4) San Quentin State Prison

Dead: 1

Sept. 30, 1994: Timothy Price Pride, 40, fatally shot in chest during a death row fistfight. Warning shot fired.

*

(5) Salinas Valley State Prison

Dead: 1

Feb. 21, 1998: Mark Anthony Perez, 25, shot in leg during a fistfight with another inmate. Warning shot fired.

*

(6) Pleasant Valley State Prison

Dead: 1

May 7, 1998: Octavio Orozco, 23, shot in the head during a fight with four inmates. No warning shot fired.

*

(7) Richard J. Donovan Correctional Facility

Dead: 1

Dec. 30, 1994: Michael C. Colvette, 23, fatally shot in head during a melee involving 12 inmates. Warning shot fired.

*

(8) Calipatria State Prison

Dead: 1

March 8, 1995: Tim Jones, 27, shot in the back during a fistfight with another inmate. Warning shot fired.

*

(9) Centinela State Prison

Dead: 2

Jan. 10, 1996: Raymond Nevarez, 30, shot during a fistfight with another inmate. No warning shot fired.

Sept. 26, 1994: Juan Hernandez, 22, shot in chest during a fight involving six inmates. Warning shot fired.

Source: California Department of Corrections.

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