Montgomery County will play $375,000 to settle a federal lawsuit brought by former inmate Amber Swink, who was pepper sprayed while in restraints by then Sgt. Judith Sealey in November 2015.

Captain in pepper spray incident ‘did not break the law’, attorney says

The Montgomery County Sheriff’s captain at the center of a recently settled $375,000 lawsuit for pepper spraying a restrained inmate is not guilty of any crime, her attorney said.

Capt. Judith Sealey was cleared of felony charges by a Montgomery County grand jury, but could still face misdemeanor charges being considered by Cincinnati city prosecutors. That office was asked to review the case due to a potential conflict of interest for City of Dayton Prosecutor Stephanie Cook.

RELATED: County to pay $375,000 to settle pepper-spray lawsuit

Surveillance video showed Sealey pepper spraying Amber Swink, 25, in a Montgomery County Jail room Nov. 15, 2015 while Swink was strapped into a seven-point harness. Sheriff’s office records indicate it was the second time Swink was pepper sprayed that night. The first instance was not recorded.

“We believe that Judy followed the training that was available to her at the time,” said attorney Anthony VanNoy. “Although the video seems to depict a particular thing, we believe that Judy did not break the law in the context of a criminal matter.”

RELATED: Montgomery County sheriff’s office sued over pepper spray incident

The settlement of the federal civil rights lawsuit filed in Dayton’s U.S. District Court coincided with a decision by Judge Walter Rice that would have allowed nearly every claim to move forward if the case went to trial.

According to his written decision, Rice was going to allow claims of spoliation of evidence, conspiracy, intentional infliction of emotional distress, assault, battery and malice to be decided by a jury.

RELATED: Woman at center of pepper spray lawsuit ordered to rehab facility

An ongoing federal civil rights investigation into the incident was initiated, according to court records. No announcement has been made about the scope or outcome of such a probe.

“I hate that it’s being referred out to Cincinnati, but they must feel it’s appropriate to send it to another jurisdiction or another prosecutor to consider it,” VanNoy said of a possible misdemeanor case. “I think (Dayton’s prosecutor’s office) they’re fully equipped and fully able to evaluate the merits of a criminal charge or not.

RELATED: Sheriff’s captain not indicted in jail pepper-spray incident

“I know Ms. Cook. I know her well. I think she’s fully competent and able to make a determination that’s unbiased and appropriate, but they felt otherwise and sent it to Cincinnati.”

A city of Dayton statement indicated that Cook is a member of a jail oversight task force and officials “felt it was a conflict.”

REPORT: Multiple agencies probe jail pepper-spraying, grand juries convene

The Montgomery County Sheriff’s Office has not yet fulfilled an open records request made late last week regarding Sealey’s employment status.

“I think Judy has served the community for these many years and she’s served it honorably and with integrity,” VanNoy said. “This is an unfortunate incident and we hope for an expeditious closure to the investigation by Cincinnati.”

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