by Doug Foley, Rains Lucia Stern, PC
The San Francisco Sheriff’s Department Appeals Board reversed Deputy Barry Bloom’s five-day suspension, which had originally been based on allegations of unnecessary physical force, on-duty misconduct, and unacceptable job performance after he used force to remove an unruly and disobedient inmate from the pod.
On July 14, 2010, Deputy Barry Bloom was assigned as a movement deputy in County Jail #5. Shortly after starting a dinner relief in Pod 8B, he was approached by an inmate. The inmate approached the desk and asked if he could get something from his cell. Deputy Bloom told him that ins and outs had already taken place and that he could not go back in his cell. The inmate asked again, raising his voice, and Deputy Bloom again told him he could not go back into his cell. The inmate, now irate, yelled at Deputy Bloom and said “That’s why you’re not a Sergeant no more!” Deputy Bloom then determined that the inmate was going to be written up for rules violations and needed to be removed from the common area.
Several other inmates were sitting and standing directly behind him and Deputy Bloom felt that the angry inmate was trying to incite them. Not wanting the situation to become volatile, Deputy Bloom walked down from the podium and ordered the inmate to turn around and cuff up. The inmate did not turn around immediately and began to question Deputy Bloom. When Deputy Bloom tried to grab his arm to cuff him, he resisted. After pinning him to the podium to gain control of his hands, the inmate attempted to elbow Deputy Bloom in the face. At that, Deputy Bloom placed him in a control hold and walked him to an interview room.
Once in the interview room, Deputy Bloom ordered the inmate to lie on the floor to be cuffed. The inmate then got on his knees and tensed up his body, refusing to lie down on the floor. Deputy Bloom then forced him to the ground and was able to get him cuffed as several deputies arrived to assist him.
The inmate later filed a grievance against Deputy Bloom claiming that Bloom had used excessive force against him. He claimed that he never offered any resistance to Deputy Bloom. In addition, he claimed that Deputy Bloom “went berserk,” slammed him into the podium, lifted him off of the ground and carried him from the podium to the interview room, slammed his head into the interview room table, and kicked and kneed him repeatedly in the back and face.
The appeal took place on June 8, 2011 before a three-member panel comprising the Department’s Appeals Board.
The first witness called by the Department was from the Investigative Services Unit. His testimony mirrored his investigation report which found that Deputy Bloom used force against the inmate after being insulted by him. He also testified about the inmate’s various complaints of force used by Deputy Bloom and claims of injuries including broken ribs, bruising, and an injury to his face. During my cross examination, he confirmed many facts crucial to Deputy Bloom’s appeal including the fact that the inmate was resisting and tried to elbow Deputy Bloom in the face. He also confirmed that when he took pictures of the inmate’s claimed injuries, it was obvious that his ribs were not broken or injured. Lastly, he confirmed aspects of the inmate’s criminal history, including several crimes of dishonesty and moral turpitude.
The Department then called another deputy to testify. The witness was working next to Deputy Bloom in Pod 8A and heard yelling. When the deputy came into the pod to assist Deputy Bloom, he saw several inmates unsecured and standing right behind Deputy Bloom. The Department focused on his statement that he did not need to assist Deputy Bloom with the inmates because it appeared Bloom had him under control. More important, however, was the deputy’s statement that the most immediate danger to Deputy Bloom at that moment was the crowd of unsecured inmates behind him. This corroborated Deputy Bloom’s statement and validated his fear that the inmate may incite the other inmates and needed to be removed from the pod as quickly as possible.
Finally, the Department called a use of force expert. He testified at length about types of force, when they can be used, and the use of alternatives. His conclusion was that based on the pod video, the inmate appeared to be complying with Deputy Bloom, that Deputy Bloom was not in any danger, and that there was insufficient justification for the force used. On cross-examination, however, the expert agreed that a deputy can always cuff and remove an inmate for a violation of any of the inmate rules. He also agreed that the actions by the inmate constituted aggression rather than resistance meaning that physical force was justified. After an in-depth analysis of the pod video and the facts of the case, the use of force expert stated that he could not say that excessive force was used by Deputy Bloom.
In the Department’s closing argument, they reiterated their opinion that Deputy Bloom responded poorly to an insult made by an inmate. They believed that Deputy Bloom should have just ignored the comment, that he was not entitled to use force against him, and that the force used was excessive.
In my closing, I highlighted the reasons why the force was justified. Deputy Bloom was justified in removing the inmate from the pod for the rules violations as soon as he made his comments at the podium. Based on the reasonable fear of the inmates behind him and the inmate’s aggression, Deputy Bloom was justified in using force to remove him from the pod. I also highlighted that the Department relied upon the inmate’s statement and claims as the basis for their decision that the force was unnecessary and excessive. I argued that the evidence disproved the vast majority of the inmate’s claims and revealed him to be a liar. For example, the inmate was one hundred percent certain that Deputy Bloom kicked him in the face with his black boot. What the inmate did not know was that Deputy Bloom is known to wear white Nike sneakers. In contrast to the inmate’s statements, the vast majority of Deputy Bloom’s assertions were corroborated by the other witnesses’ statements, the pod video, and additional findings. In sum, Deputy Bloom was telling the truth and his actions were justified.
The Appeals Board concluded that the force used was justified and proper. In coming to that conclusion, they found specifically that: (1) the inmate’s actions were punishable by a Notice of Rules Violation, (2) the inmate resisted being cuffed, (3) the inmate Jones escalated his disobedience, (4) the inmate resisted Deputy Bloom’s efforts and then became aggressive, (5) Deputy Bloom needed to control the inmate and the rest of the pod, (6) Deputy Bloom acted to forestall a volatile situation, and (7) the opinion of the expert did not support a finding of unreasonable force.
Deputy Bloom was pleased to hear that the suspension was overturned and that he would be able to return to his well-deserved special assignment at City Hall. As a testament to his character and his concern for his co-workers, Deputy Bloom has elected to remain with his team at an understaffed County Jail #2. Deputy Bloom acted quickly and effectively to diffuse a dangerous situation, was patient in his efforts to clear his name, and only wanted fair treatment. He was appreciative of the assistance given by Rains Lucia Stern, and was a pleasure to work with.