NEWS

Pepper spray civil rights trial underway in federal court

AMY BENNETT WILLIAMS
AWILLIAMS@NEWS-PRESS.COM
A jury will decide whether Charlotte County jail guards violated Stephen McNeeley's Eighth Amendment rights when they pepper sprayed him, then left him restrained for hours without decontaminating him. McNeeley has schizophrenia

This story was updated at 3:26 p.m. EDT September 12, 2016.

All claims against the Charlotte County Sheriff's office were dropped Monday, though the federal trial continues for six of the county's jailers accused of pepper-spraying a prisoner with schizophrenia, then leaving him restrained and burning for hours.

At issue is whether their treatment of Stephen McNeeley was cruel and unusual, in violation of McNeeley’s Eighth Amendment rights.

When a public official such as a sheriff is named in a civil rights trial, the plaintiffs must prove the sheriff has "a policy or practice of committing unconstitutional actions, if you want to prevail," said Fort Myers attorney Robert Shearman, of Henderson Franklin, who was defending Charlotte Sheriff Bill Prummell and his office. "There was no evidence of deficiencies in the sheriff's policies, and I think that's what the plaintiff realized."

Shearman had asked the court to enter a judgment letting the sheriff's office out of the case because of what he called its deficiencies. To Shearman's surprise, McNeeley and his lawyer agreed to it.

An open question is whether this development weakens the chance for the case to make way for widespread policy reform. Neither Florida nor federal prisons allow their guards to pepper-spray people with mental illness, but the state’s 67 county sheriffs make their own rules. Naples attorney Andrew Tretter of the firm GrayRobinson, who’s taken McNeeley’s case pro bono, had been aiming to change that policy with the suit.

It stems from September 2008, when jailers denied McNeeley’s requests to be moved from another inmate who wouldn’t stop banging the walls and screaming.

Pepper spraying inmate with schizophrenia cruel, unusual, suit says

In order to get their attention, McNeeley, who's been diagnosed with schizophrenia, bipolar disorder and other mental illnesses, covered his cell window with yellow legal paper and kicked his door. Guards ordered him to stop. One produced two Raid-size cans of pepper spray as a “show of force,” testified Corporal Sergio Bertuzzi at the trial. When McNeeley refused to come out, they started spraying into his cell through a doggie door-style food flap. McNeeley tried to block the caustic aerosol with his thin mattress pad and “some of the spray came back on us,” Bertuzzi said.

They jammed a broomstick through the flap to move the pad, but the handle broke, leaving a piece in McNeeley’s cell. The guards kept spraying. When one of the big cans malfunctioned, they used their personal canisters, Bertuzzi said. Eventually, they grabbed the pad and pulled it out through the door’s flap. The guards became more agitated as the situation escalated, their faces contorted in frustration, testified witness Christopher Wertenbach, who was in a nearby cell.

“You couldn’t even see in (McNeeley’s cell)… there was so much fog,” he said. “I remember hearing they used all the cans they could get. All they had.” For his part, McNeeley wrapped himself in sheets and towels, "like a suit of armor," Bertuzzi testified. "All you could see was his eyes."

Finally, a team extracted McNeeley from his cell, trussed up and face-down. “Carried him out like luggage," testified Terry Jones, another inmate who witnessed the event.

“He was orange,” Wertenbach said, “covered in spray and snot and he was slobbering.”

They guards strapped McNeeley into a restraint chair in the recreation area and left him “a long time,” Wertenbach recalled.

After what Jones estimates was 2.5 hours, he saw McNeeley led back to the cell, which was full of spray, "as if you'd taken a glass of Kool-Aid and dashed it on the wall... the same cell," Jones said. "No one came and cleaned the cell. No one washed the walls. No one let the cell air out."

Teen pepper-sprayed as Trump protesters, supporters clash

Both he and Wertenbach had been sprayed before and recalled the experience with horror.

Jones: "I felt like my whole body was on fire...It eats away at your skin."

Wertenbach: “Like your skin’s being ate off with acid… It affects your lungs too, takes away your ability to breathe.”

Tretter asked Bertuzzi if he'd checked to see if McNeeley had been decontaminated after the incident with a cold shower. He hadn't, Bertuzzi said.

As Tretter wrapped up his questioning of Bertuzzi, he projected onto a screen an image of Bertuzzi's signed oath of office.

Tretter: "You swore you would uphold the Constitution of the United States?"

Bertuzzi: "Yes."

Tretter: "Would you agree the Eighth Amendment (which prohibits cruel and unusual punishment) is part of the Constitution?"

Bertuzzi: "Yes."

The trial continues Monday.