The Dayton Daily News emailed a list questions to the sheriff's office about these allegations, which the sheriff's office declined to answer citing both a confidentiality clause in the Swink settlement and an ongoing internal investigation of the incident.
Sheriff’s Office Personnel Director Julie Droessler said the department anticipates having its investigation done by about Jan. 2, 2018. Union rules give them 30 working days to complete an investigation, she said.
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Sealey has pleaded not guilty to a misdemeanor assault charge stemming from the incident.
Brannon has never revealed how he obtained a copy of the video. He said Banks’ statements show the county was eager to settle Swink’s lawsuit — agreeing to pay $375,000 — because they didn’t want Banks and others to testify during a civil trial.
“They were willing to settle because they didn’t want those facts to come to light,” Brannon said. “I think there’s still a lot of unanswered questions by the sheriff’s office about who knew what or did what when.”
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One of the biggest unanswered questions in news coverage of the pepper-spray incident was how Brannon got a copy of a video that didn’t exist in county records. Cameras in the jail recorded Sealey applying the pepper spray, but that and other evidence are missing from the sheriff’s office.
Banks said days after he complained to his supervisor about the pepper-spray incident, emails went out stating that computer files containing all 2015 use-of-force photos and videos had been deleted. According to the emails, obtained by the Dayton Daily News, the office's efforts to locate the missing files were unsuccessful.
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In his interview with the Daily News, Banks said after he heard the files had been deleted, he downloaded a copy of the video from the original camera. He said the camera writes over itself every 56 days, and he was able to make a copy before it was erased.
“I wanted to ensure that if it was a cover-up, that there was evidence that what I reported was true,” he said.
Brannon said an internal investigation won’t likely uncover all the facts about what happened, including how the video got erased from the sheriff’s computer files.
“There should certainly be an investigation by an outside agency and people should be sworn to testify under oath concerning their personal knowledge of the documents and video destruction involving the Amber Swink incident,” he said.
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In a court filing in the Swink case in March, the county conceded it was under federal investigation over the Swink incident and the alleged destruction of records.
Banks said he has told the FBI everything he told the newspaper, but that federal investigators haven’t talked to him in a year. He said the FBI only began investigating the case after it was reported in the media, though he tried several times to get the bureau’s attention before then.
“The U.S. Attorney’s Office and the FBI take allegations of potential federal crimes very seriously and meticulously examine all facts to determine if federal criminal charges are appropriate,” said U.S. Attorney Benjamin Glassman in a statement when asked about the status of the case.
“As a general policy, the Department of Justice defers prosecutive decisions regarding criminal civil rights matters to state and local authorities in the first instance.”
‘Everybody was talking about it’
Banks was a sergeant at the jail until he retired last month. He said he was working the third shift on Nov. 15, 2015, when officers on the previous shift told him they saw Sealey blast Swink in the face with pepper spray after the 24-year-old Brookville woman was strapped into a seven-point harness. Swink was “yelling and screaming,” prior to the incident, Plummer has said.
Video of the encounter shows Swink coughing before appearing to pass out.
“When I came in that night, everybody was talking about it,” Banks said.
He said he and others logged onto the camera in the room where it happened and watched video of the incident.
“It was like something out of a horror movie,” Banks said. “I couldn’t believe that she thought that it was OK to administer that level of force on a restrained person because she didn’t like hearing her scream.”
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Initially, Banks did nothing. But within days he said he began to question if any discipline would result from the incident. He said he looked at the electronic incident report and noted it was riddled with typos, making him suspect it was never reviewed by Sealey’s supervisor, Capt. Chuck Crosby.
On Dec. 10, 2015 — nearly a month after the incident — Banks said he asked Crosby about it.
“He got very angry,” Banks said, “because I was questioning him more or less as to why they weren’t addressing this.”
“I wanted somebody to know that people weren’t OK with what happened to (Swink),” he said. “That’s not how we conduct ourselves as sergeants. And the response I got from him was, ‘How do you know that’s not already being looked into?’ and I said, ‘Well if it is that’s news to me.’”
Banks gave a similar answer in a Nov. 15, 2017, deposition in a civil suit filed by homeless veteran Joseph Guglielmo, who is alleging he was beaten by sheriff’s employees while incarcerated in the jail in January 2015.
In his deposition, which is filed in U.S. District Court, Banks accuses the sheriff’s office of attempting to sweep under the rug alleged excessive use-of-force incidents, including both the Guglielmo incident and the Swink incident.
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“That makes everybody — that makes it harder to do the profession when people are getting away with this stuff because it brings more scrutiny on people who are trying to do their job the right way,” Banks said, according to the deposition.
Guglielmo, like Swink, is represented by Brannon.
Banks said he learned that the 2015 use-of-force files had been deleted in a Dec. 16, 2015, email to the jail sergeants.
One of his concerns was that no one in the sheriff’s office was calling for an investigation into the missing records.
“They should have brought in somebody right away and said somebody here didn’t just delete one folder, somebody deleted a whole year’s worth of video and we believe it was one of our own people,” he said.
In an interview earlier this year, sheriff’s office investigator David Parin said the V-Drive was for temporary storage and didn’t house official copies of videos; policy requires the official copy to be burned to disk and filed.
RELATED: Sheriff: Missing Swink video isolated case
But it's not clear what official records of the event were created. The missing records include the pepper-spray video, at least one use of force report and a log of when Swink was placed and monitored in the restraint chair. The incident also doesn't appear in a quarterly report of use-of-force incidents reviewed by senior command staff.
Plummer has said the deleted video files were evidence someone stole the Swink video and tampered with county records. After the incident became public, his office said new controls were put in place to prevent a repeat occurrence.
Banks said someone destroyed the computer’s video files. They weren’t stolen.
“Nobody took any of this stuff,” Banks said. “We reported it. We wanted something to be done about it.”
Banks said he made copies of other videos involving Sealey, which show her directing inmates to put their faces up to the food port in their cells then shooting them in the face with pepper spray.
Using Ohio public records law, the Daily News requested and received reports and video involving the use of pepper spray by Sealey at the jail.
The records obtained by the newspaper show that Sealey twice pepper-sprayed inmates after she commanded them to approach the food port.
The sheriff’s office has said that pepper spray is a common tool used by corrections officers to subdue unruly inmates. They say it is an alternative to other, more dangerous uses of force.
Until the Swink incident, Sealey hadn’t been investigated internally for the use of excessive force since at least 2012, sheriff’s records show.
On Jan. 30, 2016 — a little more than two months after the Swink pepper-spray incident — Sealey was promoted from sergeant to captain, which placed her among the office’s command staff. But in March, she received a “letter of caution” by then-jail commander Maj. Scott Landis for not completing a use-of-force report on the Swink incident.
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Sealey maintains she filed that report but signed the document anyway.
Plummer said last year that he saw the video for the first time after Swink filed her lawsuit. He requested that Dayton police investigate and placed Sealey on paid administrative leave pending the results of the investigation. She was returned to the department in May of this year after a grand jury declined to bring felony assault charges against her. Last month, she pleaded not guilty to a charge of misdemeanor assault.
Banks said after downloading the video and giving it to Creech, the two sergeants waited for the department to discipline Sealey.
“If they would’ve investigated his thing properly, if they would’ve taken the correct action they were supposed to take, nothing would have happened with that video,” he said.
Reached by the newspaper, Creech declined to comment. He was placed on administrative leave Nov. 30, but records from the sheriff’s office don’t say why.
‘You’re putting the whole public at risk’
Banks said he and Creech sat on the Swink video until April 26, 2016. On that day, he said, Sealey confronted Creech in front of him and said Chief Deputy Rob Streck told her Creech had a video of the Swink incident. It was because of that video, she told the sergeant, she had to sign a letter of caution for not filling out paperwork that she insisted she had filled out.
The letter of caution, obtained by this newspaper, reprimands Sealey for not filling out a use-of-force report.
Banks said jail administrators never asked Creech for a copy of the video.
“We looked at each other after that and we said this thing just got bigger than we ever thought, because now you’ve got the chief deputy himself involved in this cover-up and not just the jail administration,” Banks said.
The sheriff’s office did not make Streck available for an interview. Plummer last week announced that he is running for the Ohio House and, if elected, would back Streck to be his replacement.
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Swink filed her lawsuit on Sept. 13, 2016. On the same day, Brannon posted the video online, resulting in national media attention.
In her lawsuit, Swink suggests a possible motive for what she says was a cover-up of the pepper-spray incident. Plummer, she alleged in the lawsuit, had plans to promote Sealey — who was the department’s first minority female captain — to assuage racial tensions between his department and the community.
Banks said the promotion meant Sealey, who had just pepper-sprayed a restrained inmate, would review the use-of-force actions by all the sergeants in the jail.
“You’re putting the whole public at risk when you put somebody like that in that kind of position and give them that type of power.”
‘She’s a good person’
Sealey’s attorney, Anthony VanNoy, declined to make her available for an interview. But VanNoy said she turned in all the required reports.
“I can’t explain why she accepted the letter of caution,” he said. “Maybe she was trying to put it behind her, I don’t really know. The reality is I know she did her job. She turned in her reports like she always did for the last 25-plus years.”
VanNoy also said Sealey never asked anybody to destroy the video.
“That’s not who she is,” he said. “She followed the training that she was provided. She followed protocols that she had observed. She did what she thought she was supposed to do in that circumstance, period. She’s a good person.”
Records show Sealey has applied for a medical retirement
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Crosby, in a July 2016 memo in response to the Brannon law firm’s request for the records, wrote that he too saw the records that Sealey says she filed.
“I reviewed the original report when it was completed and it had the required use of force report, video and restraint (chair) log attached,” he wrote.
The sheriff’s office has not explained why Sealey was disciplined for not filling out a report that Crosby said he saw, or why she wasn’t required to fill out a new form when she was disciplined.
Landis, who has since retired, responded to a list of emailed questions with a statement from his attorney saying he can’t comment because of the confidentiality agreement in the Swink lawsuit settlement.
Plummer in a 2016 interview conceded there’s a “discrepancy.”
RELATED: Missing paperwork raises questions about pepper spray probe"(Sealey) says she did it. Chuck (Crosby) said he sent it over here," he said, describing the chain of custody for such records.
“The sergeant downloads the video when there’s use of force, sends it to the captain with those reports,” Plummer said. “The captain will look at them, say we’ve got an issue with this, we’re going to investigate this.”
“So, he’ll send it over across the street, right across the street (the county jail is across Second Street from the sheriff’s department), to the major to look at. The major will get with the chief and then we’re good to see that it’s looked into. The problem we’re seeing now, the packet didn’t make it over here.
“It’s disappeared from the jail to here.”
‘It makes me upset’
Banks said he and Creech met with the Ohio Patrolmen’s Benevolent Association attorney at the Panera Bread on Brown Street in June 2016 and told him everything, including about the video.
The lawyer advised them to contact the FBI and hire an lawyer, Banks said. He said he immediately went to his car and called the FBI Cincinnati field office.
“I told them I believe the department was covering up a crime and that they destroyed evidence and told them that I would meet with someone from Cincinnati or Columbus, but I didn’t want to meet anyone from Dayton,” said Banks, who was still working in the sheriff’s office at the time.
“I called the FBI back at least two more times and said I really need to speak with somebody … (I was) basically begging someone to come talk to me,” he said.
Banks said he did receive a call from the Dayton office of the FBI, but he didn’t respond because he said he feared retaliation by the sheriff’s office, which works closely with local FBI agents.
Federal agents opened an investigation after the pepper-spray video was posted online, according to Banks, but he said he last spoke to them in December 2016 and worries the investigation is no longer active.
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"It makes me upset," he said. "I don't' know what other piece of evidence that I could provide other than what I've already provided to the FBI to prove that the sheriff's office made an attempt to cover up this incident.
“If there was never a copy of that video preserved and it was never turned over, there would have never been any justice in this case whatsoever.”
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