Questions are being raised about deadly force gunshots that were fired at inmates during the May 10 riot at Tecumseh State Correctional Institution.
At a hearing last week of the Legislature's Department of Correctional Services Special Investigative Committee, state Ombudsman Marshall Lux gave his perspective of the riot, based on video from inside the prison that day, his staff's interviews of inmates officers and department reports.
He and Omaha Sen. Ernie Chambers questioned whether a corrections officer may have hit the wrong inmate -- Rashad Washington -- with a deadly force shot, whether discipline hearings were done appropriately, if warning shots were used correctly and if other shots put some inmates at unnecessary risk.
The department's own critical incident team previously questioned lethal force procedures.
Several reports -- one on the riot by the ombudsman's office, a Tecumseh critical incident team report and an updated corrective action plan by the department -- touched on the shootings.
* Washington was shot in the thigh by a corrections officer from a tower as a crowd gathering in the yard became more aggressive, ignored orders and assaulted staff.
* As the riot heated up, another lethal force shot was fired from the tower at an inmate who was running through a so-called no-man's land between two housing units' mini yards. He was not hit.
* An officer on the ground fired two lethal force shots at an inmate who charged into a group of officers and punched two of them.The rounds did not hit the inmate. The officers, some with shields, had first used pepper ball projectiles that irritate the eyes and nose, a "stinger" round of small rubber balls from a shotgun and beanbag rounds to try and contain him. The inmate was wounded, probably by the stinger round, and treated at Bryan Health.
Ombudsman Lux said warning shots are supposed to be fired in close proximity to a lethal force shot. But in the case of the Washington shooting, a tower officer fired the first warning shot at 2:42 p.m. and the second at 2:59. The lethal force shot aimed at Washington was fired 20 minutes later at 3:19.
"They’re supposed to be warning shots to basically say, 'Get down, we’re serious about this,'" Lux said at the hearing.
"You can’t say, 'Well, I fired two warning shots so I can fire any time I want.'"
Lux also questioned why Washington was the target when the video shows he was not one of the inmates using a pole to break into the gym, where a staff member was trapped in her office.
"I’m not entirely convinced the shooter hit the target that was being aimed at, and (may have) hit the wrong one," he said.
The officer who fired the shot wrote on Washington's misconduct report that it "was aimed center mass at the inmate who was closest to my line of sight. ... He was still attempting to break the window and gain entrance to the gym where a staff member was barricaded."
Lux said the video shows differently.
A memo included in the ombudsman's report from one of the housing unit managers said the tower officer had permission to shoot if necessary, taking into account staff and prison safety. The officer was told to shoot "center mass" (where there are vital organs and major blood vessels).
Lux also had a problem with the lethal force shot fired at the inmate who was running through a restricted area.
“I think that was unnecessary and dangerous,” he said.
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The inmate was running from a mini yard of Housing Unit 3 toward the mini yard in Unit 2. A different staff member in the tower fired at him about the time the inmate was parallel with the Unit 2 mini yard.
Lux said it was "a little scary to watch" because the mini yards at that point were full of inmates who had come out of the housing units, particularly at Unit 2.
"The shot that missed could very well have hit someone in the mini yard," he said.
At the hearing, Chambers questioned the disciplinary action taken against Washington. Prison officials won't say what that action was.
Chambers also questioned the fairness of Washington's hearing. Washington was not allowed to use the video evidence to show he never touched the gym window and to show there wasn’t a warning shot.
There should be "very clear" guidelines as to the circumstances under which lethal force should be used and who specifically is going to be authorized to use it, Chambers said.
"There should be adequate training, and I don’t mean two or three hours shooting at a target, substantive training that would deal with all of the ramifications of the infliction of deadly force," he said.
There should be accountability and consequences if there are violations of the rules, he said.
The riot lasted from mid-afternoon Sunday into early Monday morning, with control regained at about 1 a.m. For 10 hours, uncontrolled inmates assaulted two staff, seemingly ignored warning shots and use of deadly force, and entrapped and taunted staff members in buildings overrun by inmates, according to the department's critical incident report.
More than 400 inmates were involved, doing extensive damage to a living unit and setting fire to and damaging housing unit galleries and yards. Nineteen staff and a volunteer had to be rescued from different areas of the prison.
Shon Collins and Donald Peacock, both 46 and doing time on child sexual assault charges, were found dead just before midnight in a living unit. They died of blunt force head injuries, reportedly killed by other inmates. No charges have been filed in their deaths.
According to a timeline in the critical incident report, an inmate using a gym phone a little after 6:30 p.m. on May 10 said to the crisis negotiation team: "Five sex offenders will be stabbed."
The department's critical incident report, written by Tomas Fithian, a security and emergency management administrator at Washington State Department of Corrections, where Corrections Director Scott Frakes worked before coming to Nebraska in February, made several recommendations on use of deadly force.
Those included reviewing the policy on the use of warning shots to ensure they serve as an imminent warning to the immediate use of deadly force, adding another officer to the tower 6 a.m.-10 p.m. and adding an audible warning system to the tower for broadcast to the yard.
The team also suggested adding less-lethal options to the tower and a red-dot sight or scope to the tower weapon to improve accuracy. And to consider revising weapons qualification training for tower officers to cover firing from an elevated position.
The department's corrective action plan said less-lethal options for the tower have been ordered and training protocols have been established. As of the end of August, the use-of-force policy has been updated regarding warning shots and controlling movement thereafter. And adjustments have been made in training to improve accuracy in shooting from a higher angle.
“I appreciate the effort and get-it-done attitude that has been displayed by staff,” Frakes said last week in announcing progress on the corrective plan.