No cover-up of pepper-spray incident, sheriff’s investigation finds

Credit: DaytonDailyNews

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Former jail sergeant alleges cover-up in interview

Credit: DaytonDailyNews

Report says jail had ‘breakdown’ in reporting on incident that led to lawsuit, investigations.

An internal Montgomery County Sheriff’s Office investigative report found a “clear breakdown” in the reporting of a pepper-spray incident involving a restrained jail inmate who later sued the county and reached a settlement for $375.000.

The Jan. 2, 2018, report by Det. Bryan Cavender, which was obtained by the Dayton Daily News, did not find evidence of a cover-up of the incident, which resulted in a still-pending criminal charge against then-Sgt. Judith Sealey.

But the investigation notes that a video and use-of-force report on the November 2015 pepper-spraying of inmate Amber Swink disappeared after they were sent to Maj. Scott Landis, who was then in charge of the jail.

Landis, Cavender’s investigation found, did not inform his supervisor, Chief Deputy Rob Streck, about the alleged use of force against Swink by Sealey.

RELATED: Complete timeline of pepper-spray incident at Montgomery County Jail

“This investigation shows there was a clear breakdown on the use-of-force reporting system for this incident,” Cavender’s investigation found. “The report appears to have not been submitted as a use-of-force incident from Major Landis to Chief Deputy Streck, and was not properly filed.”

The incident became public in September 2016 when Swink filed a lawsuit against Sealey and the sheriff’s office. The Brannon Law Firm, which represented Swink, posted the video online, resulting in national news coverage.

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Retired Montgomery County Sheriff’s Office Capt. Judith Sealey

Retired Montgomery County Sheriff’s Office Capt. Judith Sealey

Combined ShapeCaption
Retired Montgomery County Sheriff’s Office Capt. Judith Sealey

Swink and others have alleged sheriff’s office command staff covered up the incident, which occurred shortly before Sealey was promoted to captain. The use-of-force report on the incident and videos from a jail video archiving system called the V-Drive are both missing from county records.

RELATED: Sheriff: Missing Swink video isolated case

‘We do not pepper-spray people’

Sealey told the investigator that she personally informed her supervisor, Capt. Charles Crosby, of the incident soon after it happened and was in Crosby’s office when he called Landis.

Landis’ response, according to Sealey: “We do not pepper spray people while they are restrained in the emergency restraint chair and not to do it again,” the report says.

Crosby told Cavender he then forwarded the video and reports to Landis, who did not order an investigation into whether the use of force was appropriate. According to Sealey’s version, as related by the investigator in his report, she told Crosby she “did not know of another alternative” in dealing with Swink, who was brought to the jail by Clay Twp. police while heavily intoxicated and acting belligerently — actions that led her to be strapped into a seven-point restraint harness.

Cavender’s report led to the Jan. 26 firing of Sgt. Ransley Creech. It was Creech, along with another sergeant, who obtained a copy of the pepper-spray video and provided it to the FBI and to the attorney who made it public.

RELATED: Sheriff’s sergeant who made jail pepper-spray video public fired

The report found Creech violated department public records policy and didn’t take his concerns up the chain of command.

Landis was not interviewed, the investigator says in the report, because he retired in January 2017 and is no longer with the department.

Missing video

The investigative report says who deleted the video files remains a mystery.

“The FBI conducted a forensic analysis of the V-Drive and was reportedly unable to determine who or when the files were deleted from the V-Drive,” the report says. “Therefore there is insufficient evidence to determine anyone attempted to cover up this incident by deleting files from the V-Drive.”

The report does shed light on the sequence of events. In February 2016 — roughly three months after the incident — Landis told an internal affairs investigator he couldn’t locate a copy of the video or the use-of-force report. This was around the time, the report says, that internal affairs was tipped off that two jail sergeants had a copy of the video and were considering a lawsuit.

Landis then went to Streck — his supervisor — and said there were “grumblings” at the jail about Sealey not filling out a report, Cavender’s report reveals. Sealey was given a reprimand in March 2016 for completing “all required reports except for 1,” the investigator’s report says. Streck told Cavender he was not given all the information about the incident.

RELATED: Missing paperwork raises questions about pepper spray probe

Cavender’s investigation concluded that Sealey did fill out a use-of-force report on the incident but that it later disappeared.

The Dayton Daily News requested an interview with Landis, who was in charge of the jail and was sent both the use-of-force report and video, according to Cavender's investigation. His attorney, Michael Brush, said he could not respond to questions because of an ongoing federal investigation and a confidentiality agreement included in the Swink lawsuit settlement.

Brush confirmed that Landis was never “contacted or interviewed” as part of an internal investigation. “Therefore, he is unable to comment on the accuracy or validity of any report based on this internal investigation.”

Sheriff Phil Plummer was also not interviewed as part of the investigation. In response to a request from the Daily News, the sheriff's office declined to make anyone available for comment on the investigation, saying Cavender's report has led to an ongoing criminal investigation.

‘It was discussed with my captain’

Sealey spoke with sheriff’s office internal investigators for 16 minutes on Dec. 12, 2017. The report marks the first time her version of events has been made public.

“(She) explained to Captain Crosby she (Sealey) did not know of another alternative while dealing with Ms. Swink other than pepper-spraying her while she was restrained in the emergency restraint chair,” the report says.

“Captain Sealey stated Captain Crosby explained to her she should have consulted with the jail medical staff to possibly administer a sedative to Ms. Swink in order to calm her.”

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

Sealey said after being told not to do it again by Landis, the next she heard about the incident was in February 2016 shortly after she was promoted to captain. That’s when Landis and Streck told her she was getting a letter of caution for not filling out the report.

She denied having anything to do with deleting the county’s records of the incident, or with any cover up, the report says.

“No sir, it was discussed with my captain,” she told the investigator.

Sealey retired last month under medical disability.

Cover-up feared

Creech was interviewed on Nov. 29 and Dec. 15. He said he heard about the pepper-spraying from other guards when he came to work the evening after it happened. Pepper spray is commonly used to subdue unruly inmates, or to get them into a restraining chair, but is not considered a proper use of force once an inmate is already restrained.

Roughly a month after the incident, the report says, Creech discovered the videos had been deleted from the V-Drive.

That’s when Creech and fellow-Sgt. Eric Banks began suspecting a “cover-up,” according to the report. They made the decision to make a copy of the video off the camera before it recorded over itself after 56 days.

Creech also made copies of videos involving Sealey pepper-spraying other inmates as well, he told the investigator.

RELATED: Former jail sergeant alleges cover-up of pepper-spray incident

“(Creech) stated Sergeant Sealey’s actions of pepper-spraying compliant inmates went against everything he was taught about use of force,” the report says.

In April 2016, Creech said, Sealey confronted him and accused him of being responsible for her reprimand.

“Sergeant Creech stated Captain Sealey said she was told by Chief Deputy Streck the letter of caution was because of video Sergeant Creech had,” the report says.

At this point Banks and Creech contacted their union attorney, and then eventually the Brannon Law Firm and the FBI, he says. Creech maintains he was not compensated in any way by the Brannon law firm.

Banks relayed the same sequence of events in a recent interview with the Daily News after he retired on medical disability.

‘I feel like they will protect their own’

The report says Creech should have followed departmental policy by sending a memo with a copy of the video up the chain of command to make sure it was investigated.

“Sergeant Creech did nothing for approximately five to six months to help Ms. Swink other than verbally inform Captain Crosby about the incident shortly after the incident occurred,” the report says.

But Creech told investigators he didn’t trust the chain of command.

“I feel like they will protect their own at all cost and I would have been retaliated against doing it then just like I am now,” the report quotes him as saying in a Nov. 29 interview. “So, I find it very ironic that I sit here being investigated and I did what we were sworn to do as deputies which is to report a crime, preserve evidence, and look out for victims and here I sit.”

The actions of Creech and Crosby were the subjects of the internal investigation. The report found Crosby followed department policy because he verbally informed Landis, his supervisor, and sent him the use-of-force report and video.

More fallout

The report won’t likely be the end of the fallout from the pepper-spray incident.

Sealey faces a misdemeanor assault charge in Dayton Municipal Court. No trial date has been set, and her attorney, Anthony VanNoy, did not return a message seeking comment.

Creech could be charged with tampering with evidence for possession of the video files, according to the report, and the sheriff’s office said it could not comment because of an ongoing criminal investigation.

The federal investigation too is pending, though the FBI was unable to determine whether any federal laws were broken, according to the sheriff’s office report.

Finally, Creech says Cavender’s report is inaccurate and that key players were not interviewed.

“There’s a dangerous precedent and dangerous message being sent to anybody else who tries to do the right thing,” he said of his firing. “The whole truth will come out in future legal proceedings I’m not at liberty to discuss at this time.”

SPECIAL REPORT: Justice in the Jailhouse — Lawsuits, accusations plague county jails in the region

Timeline of pepper spray incident

Nov. 15, 2015: Judith Sealey, then a sergeant at the Montgomery County Jail, pepper-sprays inmate Amber Swink while Swink is strapped into a seven-point harness. Fellow Sgts. Eric Banks and Ransley Creech say they saw video of the incident that night.

Nov. 16, 2015: Sealey says she filed the required paperwork and video and told her supervisor, Capt. Charles Crosby. Crosby calls his supervisor, jail commander Maj. Scott Landis, while Sealey is in his office. Crosby says he then sent the video and paperwork to Landis.

Dec. 10, 2015: Banks says he brought up the Sealey pepper-spraying with Crosby, who was also his supervisor, and Crosby alluded that there was an investigation.

Dec. 16, 2015: Internal email notes that a computer drive holding all use-of-force photos and videos from the incident were deleted. Banks and Creech say they went into the camera that captured the Swink incident – which writes over itself every 56 days – and made a copy to make sure it was preserved.

Feb. 4, 2016: Sealey becomes first minority woman in the Montgomery County sheriff's office to be promoted to captain.

Feb. 19 2016: Landis, then commander of the jail, tells internal affairs Sgt. Dave Parin he can't find a copy of the video or use-of-force report. This was around the same time Parin received a tip that two jail sergeants had a copy of the video and were considering a lawsuit.

February 2016: Landis meets with Chief Deputy Rob Streck and tells Streck there are "grumblings" in the jail about Sealey not filling out a use-of-force report. Streck tells Landis to carry out whatever discipline is appropriate.

March 3, 2016: Sealey gets a letter of caution issued by Landis for completing "all required reports except for 1."

April 2016: Sealey complains to Banks and Creech that she received a reprimand because they have a copy of the video, according to the two sergeants.

June 2016: Banks and Creech meet with their union attorney, who recommends calling the FBI and hiring private representation. Banks says he called the FBI and a Cincinnati law firm that didn't call him back. They end up giving the info to Dayton attorney Doug Brannon.

Sept. 13, 2016: Brannon files a lawsuit on behalf of Amber Swink and posts a video of the pepper-spraying online.

Sept. 14, 2016: Media reports reveal details of the lawsuit, including allegations of cover-up. Within days, Banks says he was visited by federal agents.

Sept. 14, 2016: Sheriff Phil Plummer tells the Dayton Daily News: "(Sealey) shouldn't have sprayed (Swink) in the chair. I'll admit she was at fault. She was dealt with. … (Swink) was, according to the report, yelling and screaming, and (Sealey) sprayed her. It's nothing we train and condone and that's why she's disciplined for it. She made a mistake."

October 2016: Sealey is placed on paid leave.

October 2016: Landis is demoted from major to captain after he was caught on an audio recording — made by Creech — making comments about a black corrections officer that an internal affairs investigation deemed inappropriate. Creech was suspended for one day for making the recording.

October 8, 2016: The Dayton Daily News reports on Sealey's use-of-force history, including incidents of Sealey pepper-spraying inmates through jail cell food ports. The story also reveals that the letter of caution Sealey received on March 3 was for not filing paperwork, not excessive use of force.

Feb. 28, 2017: Landis retires from the sheriff's office.

March 2017: A court document filed by Montgomery County in Swink's civil case confirms the FBI, Dept. of Justice's civil division, the U.S. Attorney's Office and Dayton police are investigating the pepper-spray incident.

May 1, 2017: Montgomery County Prosecutor Mat Heck says a grand jury declined to bring felony charges against Sealey; Heck doesn't rule out possibility of misdemeanor charges.

May 8, 2017: Sealey returns to work from administrative leave.

July 11, 2017: The sheriff's office is notified that Sealey has applied for medical retirement.

Aug. 17, 2017: County officials confirm they settled the Swink lawsuit for $375,000.

Nov. 8, 2017: Sealey is charged with one count of misdemeanor assault after Dayton prosecutors ask Cincinnati to review case to avoid conflict. No trial date has been set.

Jan. 2, 2018: An internal affairs investigation into the pepper-spray incident finds no wrongdoing by Crosby, but says Creech violated department policy by bypassing the chain of command and taking the video and his concerns to the FBI. The report says there was a "clear breakdown" in the reporting of the incident, but the investigation did not find evidence of a cover-up. The report also says the FBI was unable to determine how the video was deleted from the V-Drive and found no conclusive evidence of illegal activity.

Jan. 26, 2018: Creech is terminated.

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