In at least one instance over the summer, the Orleans Parish Sheriff’s Office (OPSO) deployed pepper spray on a New Orleans jail housing tier reserved for detainees with COVID-19.
Andrew Dixon, who is being held in custody at the facility, was pepper sprayed in July by deputies while being housed on the tier reserved for individuals who had tested positive for COVID-19. Another detainee housed on the tier, who says they witnessed the incident, said that the pepper spray dispersed throughout the housing pod and left him and others on the COVID-19 tier coughing in their cells as their calls for fresh air went unanswered.
At the time, Dixon said he had gastrointestinal symptoms and headaches from the virus. He eventually tested negative and was moved off the tier — but recently tested positive again and has been moved back, he said. Dixon was initially booked in late April on a range of drug and gun charges, along with a parole violation.
The use of pepper spray — also known as OC spray — at the New Orleans jail is not unusual. According to a recent status report filed in federal court last month, it has been used 59 times this year alone. But public health experts have warned against using it and other respiratory irritants during the pandemic, saying it can cause inflammation and potentially worsen symptoms. It also causes coughing, increasing the risk of spread, a possible concern for the deputies working around COVID-19 positive inmates.
Blake Arcuri, a lawyer for the Sheriff’s Office, said that the jail’s policies on uses of force are no different in the COVID-19 unit than in the rest of the jail “and inmates on that unit are required to follow rules and regulations of the facility.”
According to an OPSO investigative report that was based on interviews with staff and surveillance camera footage, the use of pepper spray occurred after a July 20 fight between Dixon and another inmate — but it was not used to break up the fight.
After the altercation, Dixon received unspecified medical treatment and was returned to the housing unit. But the report claims that Dixon refused to return to his cell, and then threatened jail staff with a plastic chair.
“OJC staff then arrives on the tier and attempts to speak to inmate Dixon as the inmate ties an orange cloth on his face,” the report, describing surveillance camera footage, reads. “Inmate Dixon then proceeds to arm himself with a plastic chair from the dayroom area and hold the chair up in an aggressive manner. Inmate Dixon then proceeds to swing the chair towards Deputy Ruffin, then throws the chair towards Deputy Chapman. (OC) spray was then deployed in an attempt to gain control of inmate Dixon. Inmate Dixon then proceeded to run towards the pod door, where he laid on the floor and tucked his arms underneath his body. Inmate Dixon was later restrained successfully by deputies.”
The investigation resulted in Dixon being charged — just last week — with misdemeanor counts of simple battery and aggravated assault.
The simple battery charge is for the fight with the other detainee, and the aggravated assault for the incident with the deputies, according to the report.
According to the report, Dixon refused to cooperate with the investigation. But over several interviews with The Lens, Dixon said that it was OPSO staff who escalated things following the fight. He said that after being taken back to the housing unit, he asked to speak to an OPSO captain to discuss the incident. A captain came to speak with him, Dixon said, but began acting aggressively, and when Dixon protested orders to return to his cell, several other jail staff were called in and approached him with cans of pepper spray.
Dixon admitted holding up a chair, but he said he did it to try and protect his face from the spray. Once he was sprayed he threw the chair to the ground, he said. After running toward the door of the pod, he lay on the ground, and deputies kneeled on his back and handcuffed him.
“Under no circumstances will an inmate be allowed to attack another inmate as did Andrew Dixon, nor will an inmate be allowed to refuse an order to return to his or her cell,” Arcuri wrote in an email.
Dixon, however, has questioned whether or not the investigation that ultimately led to his new charges in jail was in retaliation for going public with the incident. The report indicates that the Investigative Services Bureau agent was instructed to begin the investigation on August 20, one day after The Lens informed OPSO that it planned to publish a story about it.
OPSO had already indicated the incident was being investigated prior to that, however, and has said it first needed to be reviewed by the Force Investigative Team.
But by the time the ISB investigator began to look into the incident, the person who Dixon had a fight with had already been released from jail, and was not available to make a statement.
“Due to the time elapsed from the incident date to the agent being informed and instructed to investigate, the victim of the initial altercation…had already been released from OPSO custody and was unavailable to make a statement regarding the incident,” the report reads.
According to OPSO policy, pepper spray and other uses of force should “be considered only as a last resort and used only if verbal and/or if the failure to use some measure of force would result in imminent harm to staff, inmates, others, or property.” The policy prohibits the use of force in situations where someone is simply failing to follow instructions.
As the use of tear gas and other riot control agents such as pepper spray have been used by police against protesters in recent months, public health experts have warned that it can exacerbate both the spread and the symptoms of coronavirus.
In an open letter, over 1,200 public health professionals said that they “oppose any use of tear gas, smoke, or other respiratory irritants, which could increase risk for COVID- 19 by making the respiratory tract more susceptible to infection, exacerbating existing inflammation, and inducing coughing.”
And, last week, the New Orleans City Council voted to restrict law enforcement use of tear gas to situations “where its use is reasonably necessary to prevent threat of imminent loss of life or serious bodily injury, or to dislodge a barricaded violent criminal suspect.” The New Orleans Police Department banned pepper spray for general use several years ago as part of its long-running federal consent decree, though department policy still allows it to be used in certain SWAT operations.
‘We tested positive for the corona, and it was getting in our system’
Dixon and the detainee who observed the incident say the use of pepper spray by deputies on July 20 was an unnecessary use of force, and that the situation was escalated by the captain on the tier, Hugh Blatcher. (Blatcher does not appear to have been interviewed for the ISB investigation)
Dixon said when Blatcher showed up to speak to him he was immediately “hostile,” cursing at him, and at one point throwing a chair himself. Blatcher told Dixon to return to his cell, but Dixon protested, saying that he just wanted to talk and fearing what the captain might do to him once he was back in the cell.
The other detainee The Lens spoke with said something similar.
“The captain came in on some aggressive stuff, and Mr. Dixon was complying, being humble with it,” the detainee said. “I don’t know if something was on his mind that day. He went to throwing a chair down, telling Mr. Dixon to go on lock down. The captain was on some other stuff that day.” (One of the staff members interviewed for the OPSO investigation contradicts the claim that Dixon remained calm, telling the investigator that when “inmate Dixon became irate and began yelling obscenities towards staff.”)
Then, according to Dixon and the other detainee, Blatcher retrieved several other jail staff who entered the tier with cans of pepper spray. Dixon picked up a chair to protect his face, but after being sprayed by the guards, he dropped the chair, and lay down on the ground to shield his eyes.
“One of the sergeants, it felt like all of them, jumped on my back and had a knee at the top of my back and my neck and said ‘Yeah, this is what we do, this is what we do. This is what we do,’” Dixon said. “I’m like man ‘I’m down, I’m down, I can’t breath.’”
“The mace — it didn’t call for that, because it wasn’t no aggressive mood that Dixon was in,” said the other detainee.
And Dixon wasn’t the only one who felt the effects of the pepper spray. It dispersed throughout the rest of the tier, which at the time was housing around a dozen other detainees who had tested positive for coronavirus.
“Yeah it got into our cells,” said the detainee. “All of us were all beating on the doors telling the people we can’t breathe, to open the outside door where they have a rec yard so it can air out. We were telling them we can’t breathe, they were telling us we can’t go outside and air out.”
“By inhaling that stuff, it’s so strong,” he said. “We tested positive for the corona, and it was getting in our system. We were coughing and gagging in our cells.”
Following the incident, according to Dixon and the other inmate, Dixon was returned to his cell on the COVID tier and kept there for several days without being given the opportunity to shower or make any phone calls.
“They put me in the cell with no shower, nothing to clean it off me,” Dixon said.
The only medical attention he received, Dixon said, was being given Tylenol to help with his wrist and ankles, which had become swollen from the cuffs and shackles.
Dixon, who has been in jail since April, was booked on the new charges on September 29, over 2 months after the fight occurred.
Days before, he said that no one has informed him of any additional pending criminal prosecution related to the incident.
“They never told me nothing about rebooking me for a fight,” he said in a late September interview. “I mean, if y’all were going to rebook me for a fight, you should have done it that day. That was damn near 2 months ago almost.”
Prior to Dixon being charged, Arcuri, the lawyer with OPSO, said that investigations are “taking longer than they normally would” because investigators have been assisting at the jail due to staff quarantines.
The investigative report notes that two of the deputies involved in the incident were “both unavailable for recorded statements due to quarantine measures for exposure to the Covid-19 virus.” They instead issued written statements.
But Dixon said he suspected that OPSO had been using the threat of prosecution to dissuade him from going public with the incident.
“Let’s say we never go on with the situation, with you writing a story, ain’t nothing going to happen to me,” he said.
And Dixon said criminal prosecution didn’t make sense given the fact that despite being written up for the fight, he was never actually punished for it in jail.
In the days following the incident, Dixon said he was given a disciplinary hearing, found guilty and initially sentenced to 45-days in solitary confinement. But Dixon said he was able to talk to the captain who assured him he wouldn’t actually have to carry out the sentence.
“I went to the court in the jail, I was found guilty, and they sentenced me to 45 days in the hole,” Dixon said. “I doubled back, and wound up seeing the captain, and he said don’t worry about that, he’s gonna get that from over my head. And that’s what happened. I never went to the hole. I never heard nothing about it, and that was that.”
Arcuri did not respond to an inquiry regarding any discipline Dixon received in jail.
“I ain’t the last person they’re going to do that to,” Dixon said.