A prison captain who was removed from his job last year — and then reinstated — discharged pepper spray directly into the face of an inmate who was restrained and left him in distress for 24 minutes, according to confidential documents and a videotape of the incident obtained by the Portland Press Herald/Maine Sunday Telegram.
Capt. Shawn Welch was fired from his job at the Maine Correctional Center in Windham in August after an investigator looking into the June 10 incident said he violated several prison policies and used excessive force on the inmate because he had a personal grudge against the prisoner, according to Department of Corrections documents.
“In my investigation it appears that the situation went from a security situation to a punishment one,” Scott Durst, a former Maine Drug Enforcement Agency detective, wrote in his report.
Welch was fired and appealed his termination, according to documents. The appeal was denied by Scott Burnheimer, superintendent of the Maine Correctional Center, on Aug. 15 in a letter that said he would not be offered another position in the department. However, Corrections Commissioner Joseph Ponte later overruled the recommendation to fire Welch, resulting in Welch’s being suspended for 30 days, rather than fired.
Ponte said he weighed Welch’s inappropriate behavior in the incident, which he said began legitimately because the inmate was injuring himself, against Welch’s work record over many years. Welch’s work record is otherwise clean, Ponte said.
“When you’ve got a substantial amount of years of good, sound decision-making and performance measured against one bad decision, it’s kind of, you look at the odds,” Ponte said.
Since the incident, he said, the department has brought in training experts from the Connecticut Department of Correction, considered a leader in innovative and nonconfrontational ways of managing people who injure themselves.
A videotape of the incident obtained by the newspaper and the ensuing investigation offer an unusual glimpse inside the prison and a disturbing perspective on the sometimes violent confrontations between inmates and staff. Officials say the incident is an aberration and that treatment of prisoners has improved dramatically in recent years.
On the tape, Paul Schlosser III, who is serving seven years for robbery, is shown gagging and gasping for air after Welch sprays him in the face. A spit mask is then put over Schlosser’s face, trapping the powerful irritant. Welch taunts Schlosser, telling him to cooperate or be sprayed again.
Welch himself told the investigator, “Certainly from an outsider’s point of view it looks horrific,” according to the report. But he said the use of pepper spray was appropriate because Schlosser, who has hepatitis C, spit on one of the officers and was not being cooperative. Hepatitis C is a blood-borne virus that is present in saliva if someone with the infection has open sores in their mouth or bites their cheek.
Contacted at the Maine Correctional Center, Welch declined to comment, saying that any interviews or press inquiries had to go through the administration.
Steve Yerger, an Oregon-based private consultant who trains officers about use of force, said spraying an inmate who is already restrained is generally unreasonable and unethical.
“The use of force is to get control of the situation and keep everybody safe. It’s not a form of punishment, which leads to torture,” Yerger said. “That’s a clear, blatant violation in most facilities.”
Pepper spray causes intense and often overwhelming discomfort to mucous membranes in the eyes, nose and mouth but several studies have found the concentrated pepper spray has no long-term health effects.
Some experts say the use of pepper spray, called OC spray for the active ingredient, oleoresin capsicum, can be a reasonable way to get control of a situation, even if a person is already restrained.
“Typically, when someone is in a chair, they don’t present much of a threat if they are already restrained,” said David Klingler, a former police officer and a professor at the University of Missouri-St. Louis who consults on use of force issues. “However, if there’s a need to be in close proximity, to provide medical attention, maybe OC spray would be an appropriate tool to use. Corrections officers don’t get paid to get spit on.”
RESTRAINT AND PUNISHMENT
Schlosser, 27, of Standish, was arrested in 2010 after several robbery attempts in Portland in one morning as he sought money for drugs, according to police. He has at least 18 prior convictions, mostly for theft and drugs but no violent crimes.
Before 2008, Schlosser was a medic in the military but had been discharged. He takes medication for bipolar disorder and depression, according to DOC documents and statements Schlosser made on the tape.
On June 7, Schlosser made deep, repeated cuts in his left arm — something he had done before — and was taken to Maine Medical Center, where his wound was stapled closed, according to DOC records. It’s unclear how he caused the injury. The wound was so gruesome, Ponte said, that one medical staff person needed to take time off afterward.
In a telephone interview last week, Schlosser said he hurt himself because he was depressed over the recent breakup of his marriage and was frustrated because he had been kept in the highly restrictive classification section of the prison for two months, waiting to be moved to the general inmate population.
When he returned from the hospital, he took the dressing off his wound and was placed under observation by a guard and videotaped through the food tray slot in his cell door. Officials also approved the use of the restraint chair, if needed, for medical staff to treat his arm, the investigator’s report said. The restraint chair is seldom used in the prison.
On June 10, Schlosser complained that his medication was late and nobody would give him a book to take his mind off his injury. Frustrated, he again pulled the dressing off his wound and refused to go to the medical unit.
“Schlosser is trying to make his own rules and he is under the impression he can manipulate staff,” an officer’s entry in the prison log said.
Officers assembled a team to remove him and restrain him in the chair. The DOC requires a corrections officer to film all cell extractions when an inmate refuses to cooperate and guards must enter the cell. Because cell extractions are among the most violent encounters between officers and inmates, guards wear padded protective gear and helmets with clear plastic shields to protect their faces.
Welch was in charge of the facility that Sunday. On the videotape, he tells Schlosser to kneel and put his hands behind him. Once in the chair, the guards fasten straps on his waist and ankles, then wheel Schlosser to a cell in the reception area to finish restraining him. Schlosser is compliant, and the guards work to unlock the cuffs on his wrists so they can fasten his arms to the chair.
When one officer pins Schlosser’s head to the back of the restraint chair, he appeals to Welch to tell the officer to let go, then struggles. He frees his head briefly and spits up at the officer.
Without warning, Welch sprays Schlosser in the face with a short blast of pepper spray from about 18 inches away, using a Mark 9, a pepper spray canister intended for disabling multiple people at a distance of no closer than 6 feet.
Schlosser gasps and fights for breath. He tries to lean forward to spit out the spray, but the guard holds his head against the back of the chair. One of the guards then puts a spit mask on Schlosser. The mask traps the irritant against Schlosser’s face, at one point covering both his mouth and nose.
Schlosser says he can’t breathe and promises not to struggle or argue anymore.
In the 24 minutes between Schlosser being sprayed and when he can wash the spray off his face, Welch strolls in and out of the cell holding the OC spray canister, telling Schlosser that if he doesn’t cooperate, “this will happen all over again.”
“You’re not going to win. I will win every time,” he says.
Welch says repeatedly, “If you’re talking, you’re breathing,” suggesting that as long as Schlosser was complaining, he was not in serious medical distress. Welch does call for a member of the prison’s medical staff.
At one point, he whispers to Schlosser, “Useless as teats on a bull, huh … What do you think now?” an apparent reference to an insult Schlosser directed at him two days earlier, according to the investigator’s report.
Schlosser said he remembers little of the period leading up to being restrained in the chair, saying at one point he thought he was sprayed once before he was strapped down.
“They had me all medicated. I was so out of it I don’t recall even them asking me to come get cleaned up.” He said he was taking Vicodin for pain and Ativan for anxiety. Schlosser said he also was on Thorazine, an anti-psychotic medication, but did not know why.
He remembers spitting on the officer and the captain spraying him with the large canister.
“I couldn’t breathe. It was just an awful, claustrophobic … it wasn’t even the burn that really bothered me,” he said.
His mother, Laura Schlosser, shown a copy of the video by the Portland Press Herald/Maine Sunday Telegram, said afterward, “As a mother, it makes me want to throw up … I guess that’s their form of punishment to prevent him from doing it again, but if he doesn’t remember what he did, how’s he going to learn from that?”
The investigator concluded that Welch’s treatment of Schlosser was personal.
“Welch continues to brow beat Schlosser and it looks like he has made this a personal issue,” said Durst in the report. “There is not one incident of de-escalation and in fact Welch continues to escalate the situation even after the deployment of chemical agent.”
Durst, who worked for the MDOC before becoming a civilian contractor in Afghanistan, said he could find no prison policy on how soon a person should be decontaminated after being sprayed. A number of police departments require that the person’s face be washed with water immediately, he said.
“In this case Schlosser did not have that option and could not calm down due to the reaction to the chemical agent,” he said.
VIOLATIONS OF POLICY
Durst identified a number of prison policies that Welch violated:
• The commanding officer is supposed to watch cell extractions from a safe place while sergeants handle the actual entry.
• Even though officers knew Schlosser was prone to spitting, they did not place a spit shield on him after he was restrained.
• The Mark 9 OC spray canister Welch used is intended for use in a large room on several targets with a range of 18 to 20 feet. Its manufacturer says it should not be deployed closer than 6 feet to the subject.
• Pepper spray is to be used to bring a subject under control and if that is not adequate, the prisoner can be restrained, the highest form of nondeadly force according to the prison’s use of force policy.
“Welch told me that he looked at the total situation at the time and felt he needed to stop Schlosser from moving around, possibly injuring his left arm which was still pinned behind his back,” Durst wrote in the report. “Welch also told me that he had to take into consideration the officers’ feelings at the time, that one of their own had just been spit on and the whole event needed to stop.”
Inmates who injure themselves to get what they want are some of the hardest prisoners to manage, Ponte said while discussing the video and the investigator’s findings. The department is obligated to stop inmates from harming themselves, but managing them runs counter to some of the fundamental approaches to corrections.
“The feeling sometimes with staff is, you’re giving in to them,” Ponte said.
If such an inmate is upset because they have not been assigned to a cell, as was the case with Schlosser, it makes sense to deal with them quickly, even if it might not be in keeping with standard practice, to avoid a dangerous and costly confrontation, he said. Ponte said that threatening to punish an uncooperative inmate who is prone to harming himself doesn’t work.
Overall, the prison system rarely uses the restraint chair, and while cell extractions used to happen three and four times a week, they now occur less than once a month, he said.
Ponte says there was no need for Welch to have the Mark 9 canister once Schlosser was removed from his cell.
“This is all problematic. There’s no purpose here,” he said, as Welch is heard on the tape telling Schlosser to behave if he wants to avoid future confrontations.
“This actually crosses the line here, one of the reasons the captain was disciplined,” he said. “It’s more about this dialogue that we’re concerned with” than use of the wrong OC canister, he said.
Ponte said the most effective decontamination for OC spray is evaporation, though he conceded that would be difficult if Schlosser had the mask on.
ESCALATING THE SITUATION
OC spray is made with the oil extract of a natural hot pepper. The pain comes from the spray’s ability to instantly dry out mucous membranes, which causes intense pain.
It can often lead to a sensation of not being able to breathe, although a National Institute of Justice study found it does not compromise a person’s ability to breathe.
“It’s just like getting jalapeno pepper in your eye, only multiplied by a bunch,” said Robert Trimyer, a use of force instructor and OC trainer with the University of Texas Health Science Center Police Department in San Antonio. Depending on the concentration, OC spray is roughly 300 times “hotter” than a jalapeno pepper.
“It’s painful, but it goes away. The people that have the problem breathing, it’s really more of the anxiety involved,” said Trimyer.
Yerger believes that putting the spit shield on top of the pepper spray would intensify the effect of the spray.
“I have never heard of any trainer I have ever worked with as a peer that would ever say, ‘Put a spit hood on someone after pepper spraying them,’” he said.
“They’re spinning out of control. Restraint, pepper spray, now cover their face — you’re just escalating the situation. In cases I’ve reviewed when people have died in a (restraint) chair, it’s not uncommon to see factors like that involved.”
Yerger, who noted that he had not seen the video, said pepper spray is not the appropriate response to spitting, since it doesn’t stop someone from spitting.
“Most correctional facilities in the U.S. do not allow for punitive use of force,” Yerger said. “That’s how people die in chairs. Those situations right there lead to serious injuries and death with restraint chairs, and it has happened well over 300 times.”
Lauren Petit, a staff attorney with the nonprofit Prisoners Legal Services in Massachusetts, said firing an officer and then reinstating him raises questions about the rationale behind that decision.
“It is both to punish the person who has inflicted excessive force and also to send a message to other employees that there will be consequences for those who do go outside the policies and behave in that way,” she said.
Brian MacMaster, head of investigations for the Maine Attorney General’s Office, watched the video of the incident and told Durst the incident did not appear criminal but did violate several policies, the report says.
After he was reinstated, Welch was given a performance improvement plan to address the policies he violated.
The plan calls for no specific training because, according to the plan, Welch is an expert in all four policies and capable of training other staff.
Ponte said he believes Welch will be a better captain for the experience.
“As we looked at the overall years of service and performance which have all been very good, one bad incident here with some mistakes in judgment — with a … last-chance agreement so anything else is straight termination, no appeal — this was best for the employee, best for the agency,” he said.
After the episode, Schlosser was sent for a time to Maine State Prison in Warren for mental health treatment and returned to the Windham prison, where he is now in the general population. He said he is doing much better and has had no further encounters with Welch, although they see each other regularly.
“I don’t get in trouble,” said Schlosser, who is due to be released in 2017, when he’s 31.
Staff Writer David Hench can be contacted at 791-6327 or at: