from: The Sacramento Bee
The California Department of Corrections and Rehabilitation faces a wrongful death lawsuit that alleges a corrections officer fired a 40 mm “less lethal” projectile that struck an inmate’s head as he lay on the floor in a prone position and “posed no threat to any inmate or officer.”
Jarray D. Birdon, 48, died after a June 5 incident at High Desert State Prison in Susanville. CDCR officials at the time said corrections officers fired a “less lethal 40 mm direct impact round and chemical agents” to stop a fight between Birdon and another inmate.
Robert Chalfant, the attorney who filed the lawsuit on behalf of Birdon’s wife, argued that the other inmate threw Birdon to the floor, and he was on his back on the floor and no longer involved in the fight when a correctional officer yelled “Get down!”
“This was the only command or direction that was given by officers, and it was given after the altercation had ended and after Jarray Birdon was lying on the floor and had stopped defending himself,” Chalfant wrote in the lawsuit filed Nov. 1 in U.S. District Court Eastern District of California.
CDCR officials on Tuesday declined to respond to the allegations made in the wrongful death lawsuit.
“We do not comment on active litigation,” said Terri Hardy, a CDCR spokesperson.
Birdon was serving 16 years and four months in prison after he was convicted in Sacramento County on charges of assault with a firearm, being a convicted felon in possession of a gun, and making criminal threats to cause great bodily injury or death.
In a news release issued two days after the fight at the prison, CDCR officials said corrections officers spotted Birdon and another inmate in a fight, before the officers “quickly responded, first issuing verbal orders to stop and get down, which were ignored.”
Chalfant said the two inmates were in an argument, but the other inmate was the aggressor and Birdon was forced to defend himself. The attorney said no weapons were used in the fight.
The fight continued with Birdon being struck several times in the face and head area by “the aggressor’s” fists and knee,” before Birdon fell to the ground and corrections officers fired the less lethal impact round and chemical agents to stop the fight, according to CDCR.
Chalfant said Lennard Patton, a corrections officer at the prison, was assigned to a tower and was about 30 feet away from Birdon and the other inmate during the fight. The attorney said officers on the ground fired tear gas to stop the attack.
Birdon had injuries consistent with being hit in the head with the 40 mm round, CDCR officials have said. The other inmate in the fight suffered a fractured right hand. No prison staff were injured.
A death certificate submitted as evidence in the lawsuit lists the cause of death as blunt force injury of the head due to or as the consequence of a non-penetrating (rubber bullet) gunshot wound to the head.
Chalfant argues in the lawsuit that corrections officers at High Desert State Prison are trained and required to pass a qualification course to use the 40 mm impact munitions, which are identified as military equipment, in a prison setting. The attorney said the officers are trained not to fire these “less lethal” weapons at groups of people without a supervisor’s approval and issuing a warning to provide people “with a reasonable opportunity to comply with directions and orders.”
The officers also are trained to only aim the 40 mm impact weapons at large muscle groups on a person’s buttocks, thighs and knees, since these areas provide sufficient pain stimulus to affect mobility while minimizing serious or life threatening injuries.
“Officers are instructed that shots at the head, neck, thorax, heart or spine should never be used and can and will result in fatal or serious injury, and these areas shall not be targeted unless deadly force is authorized by a supervisor,” Chalfant wrote in the lawsuit. “Officers are also instructed that if the head is targeted, the individual shot must receive immediate and life-saving medical care, and the individual should be immediately transported by helicopter to a facility that can provide such care.”
The attorney argued that Patton fired the weapon with “no lawful or valid reason,” aiming the weapon at Birdon’s head, without seeking or receiving authorization from a supervisor.
The impact round struck the left side of Birdon’s head, above his temple. Doctors at Renown Medical Center in Reno, Nevada said the impact round moved Bridon’s brain 10 millimeters inside his skull, according to the lawsuit.
Instead of being taken immediately to a hospital, Birdon “was placed in a cage” in the prison’s administration building next to the other inmate involved the fight, Chalfant said.
Birdon did not receive any medical evaluation or treatment, even though he had a head injury with symptoms such as confusion, numbness, loss of balance and coordination, difficulty breathing, slurred speech, lapses of consciousness and repeatedly vomiting, the attorney said.
“These are clear and obvious signs of a life-threatening traumatic brain injury,” Chalfant wrote in the lawsuit, “and he should have been immediately transported off-site to a hospital equipped to deal with intracranial swelling after being shot in the head with the 40 mm projectile.”
link to article: https://www.sacbee.com/news/local/crime/article295445694.html
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