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Conditions at the NWDC: Uses of Force and Chemical Agents

August 14, 2023

This report is part of a series regarding Human Rights Conditions at the Northwest Detention Center in Tacoma, Washington, based on ongoing research efforts and released to highlight initial findings in the urgent context of the COVID-19 pandemic.

Contents:

Introduction
Background, Methodology, and Human Rights Standards
Sanitation of Food and Laundry
Allegations of Medical Neglect
Use of Solitary Confinement
COVID-19 and Health Standards
Reporting of Sexual Assault and Abuse
Uses of Force and Chemical Agents
Research Update: Three Years of Cleanliness Concerns, No Consequences
Research Update: Charles Leo Daniel’s Death at NWDC in Context

← Previous section: Sexual Assault and Abuse

Cycles of Cruelty: Uses of Force and Chemical Agents at the Northwest Detention Center

In 2023, conditions at the Northwest Detention Center[1] (NWDC) have come under scrutiny as those detained within the facility have staged a series of hunger strikes to protest conditions, while legislators passed a bill mandating increased state oversight of all private detention facilities in Washington, including the NWDC.[2] In this context, reports of the deployment of chemical agents against those protesting within the facility in February 2023 raised concerns about the use of force.[3] At the request of community partners, the UW Center for Human Rights conducted an analysis of the human rights implications of uses of force at the Northwest Detention Center, and presents this report as the latest in our series regarding human rights conditions at ICE’s Northwest Detention Center.

UWCHR’s review of ICE documents and other records relating to the use of force at the NWDC[4] suggests that the operation of the facility comes at a terrible human cost, especially to individuals rendered vulnerable because of mental illness and to individuals seeking to exercise their First Amendment rights to free expression. Furthermore, the lack of apparent enforcement of ICE’s own rules to ensure detainee complaints are meaningfully addressed creates a feedback loop where detained people do not perceive meaningful ways of being heard within the system, thus creating incentives for challenges to that system, which are then cited to justify further violence against them. It is this cycle of cruelty that we seek to highlight here.

Background

Located on the Tacoma Tideflats, the NWDC is a 1,575-bed civil detention facility operated for profit by GEO Group, under contract with ICE; over the years, it has been subjected to mounting criticism from grassroots organizations, human rights advocates, and state and local officials.[5] Cases stemming from alleged abuses have been heard in state and federal court, and in fulfilment of its legislative mission, UWCHR has published a series of research reports documenting concerns relating to sanitation, medical care, solitary confinement, COVID-19, and sexual abuse and assault at the facility. The Washington state legislature has passed three laws relevant to these concerns:

  • HB 2596 (2020) calling for a study to examine the feasibility of local government exercising oversight of health and safety at the facility;[6]
  • HB 1090 (2021) mandating the closure of private detention centers including the NWDC, in large part due to concerns about conditions;[7]
  • HB 1470 (2023) mandating improved health and safety conditions, and state oversight, of private detention centers including the NWDC.[8]

After the passage of HB 1090 in 2021, the facility was expected to close by 2025. That changed, however, following a September 2022 en banc ruling by the Ninth Circuit Court of Appeals. In that case, GEO Group and the federal Department of Justice brought suit against the state of California for its passage of a similar law, AB 32, which banned private detention facilities; although lower courts had ruled in support of California’s law, the circuit court held that GEO was likely to succeed in its argument that California’s law violated the Supremacy Clause of the U.S. Constitution, which limits state interference in matters of federal law.[9] Because Washington’s HB 1090 was based on similar legal reasoning as AB 32, the ruling in the California case has rendered the Washington law unenforceable,[10] and the NWDC is now projected to remain open for the foreseeable future.

As a result, in 2023, advocates and legislators turned their attention to efforts to improve conditions within the facility, passing HB 1470 for this purpose. The law, which took effect on May 11, 2023, addresses areas of longstanding concern such as food and sanitation, the use of solitary confinement, and communications and visitation rights.[11] The law also tasks the Washington State Department of Health with significant oversight responsibilities, requiring it to conduct unannounced inspections of the facility and respond to reported infractions. Significantly, HB 1470 affords detained people a private right of action, allowing them to sue for damages against private prison operators–in this case, GEO Group–if abuses occur, and grants state authorities the ability to issue civil penalties for violations.[12] In this context, it is particularly important to examine the frequency, nature, and human rights implications of uses of physical force at the NWDC.

Methodology

UWCHR researchers routinely file Freedom of Information Act (FOIA) requests seeking copies of Immigration and Customs Enforcement (ICE) records that would shed light on human rights conditions at the NWDC. To date, our team has filed 56 FOIA requests of ICE for information pertaining specifically to the facility, and dozens of other requests for information relevant to the facility’s operations.[13] Unfortunately, however, FOIA provides incomplete access to information regarding conditions at the facility. In part, this is because ICE so frequently violates the requirements of the law or slow-walks requests, not issuing copies of documents until the information they contain is quite old. As a result, UWCHR has been forced to pursue litigation against the agency to obtain documents in 28 different cases. In addition, because the NWDC is owned and operated by GEO, the company claims that as a private corporation it does not need to respond to the requirements of FOIA, leaving many essential records difficult or impossible for researchers to access even when recurring to litigation.

Despite these limitations, UWCHR researchers were able to review a range of ICE documents. These include Significant Incident Reports, Disciplinary Detention Reviews, Records of Deportable/Inadmissible Aliens, and others.

In addition to using FOIA, UWCHR researchers also regularly file records requests under Washington state’s Public Records Act, which applies to state and local agencies in our state. For this report, we examined records of all calls logged by the Tacoma Police Department as pertaining to the NWDC from November 15, 2019 to April 9, 2023, and requested records of investigations stemming from a subset of these reports with codes that indicated they involved health or violence  concerns at the facility. Many of these documents contained narratives describing incidents of violence reported at the facility, including some which were uses of force by officers against detainees.

We also reviewed a number of publicly-available records, including all published reports from NWDC inspections since 2011; ICE’s published rules governing its contract detention facilities, known as the Performance-Based National Detention Standards 2011 (last revised in 2016), or PBNDS 2011; court records including sworn testimony and other documents from Rivera-Martinez et al v. GEO Group, Inc., a case brought in federal district court against GEO for use of force abuses at its Adelanto facility in California;[14] and materials shared by grassroots advocates, including local advocacy group La Resistencia. We also spoke with community members, including those recently deported after detention at the NWDC, to obtain their insights and analysis in interpretation of ICE documents. Although ICE indicated some willingness to consider responding to questions by email; the agency declined to respond to the questions we sent.

What constitutes a “use of force”?

ICE’s standards governing detention in the NWDC and similar facilities, the PBNDS, describe a “Use-of-Force Continuum” with five escalating levels of use of force staff can use, excerpted below in its entirety:

  1. “Staff Presence without Action
  2. Verbal Commands
  3. Soft Techniques
    Techniques from which there is minimal chance of injury (e.g., grasping, using empty-hand and/or ‘come-along’ holds, using impact weapons for holds, applying pressure to pressure points, using chemical agents).
  4. Hard Techniques
    Techniques with which there is a greater possibility of injury (e.g., strikes, throws, ‘takedowns,’ or striking using impact weapons such as expandable batons, straight batons, authorized less-lethal devices and specialty impact weapons).
  5. Deadly Force
    The use of any force that is reasonably likely to cause death or serious physical injury. Deadly force does not include force that is not reasonably likely to cause death or serious physical injury, but unexpectedly results in such death or injury.”[15]

ICE’s standards also distinguish between the “immediate” and “calculated” uses of force, the former referring to spontaneous reactions to events as they unfold, and the latter to the planned deployment of force. All calculated (planned) uses of force require prior approval from a supervisor and consultation with medical staff, and video documentation of the use of force itself.[16] All uses of force, whether planned or spontaneous, must be promptly described in writing for later review. (See more on documentation problems below.)

Incidents involving the use of force at the NWDC

UWCHR researchers reviewed ICE’s internal documentation of 70 use of force incidents at the Northwest Detention Center during a period of 7 years, 5 months between 2015 and 2023.[17] Under the PBNDS, facility personnel are required to “prepare detailed documentation of all incidents involving use of force, including chemical agents”; the original report must be submitted prior to the conclusion of the shift during which the use of force took place.[18]

The ICE documents reviewed describe these use of force incidents as ranging in nature from the spontaneous use of physical force to break up fights, to the deployment of chemical agents to obligate detained people to “follow officer orders,” to the force-feeding of a hunger striker. Uses of force are particularly likely to occur during “cell extractions,” or the forced moving of a resistant person from one cell to another; this occurs most frequently in the Restricted Housing Unit. Particularly in the Restricted Housing Unit, there are multiple cases of repeated, escalating uses of force against the same individual, sometimes on the same day; the most extreme of these involve a single man who experienced 13 use of force incidents over a three-month period in 2019.

ICE documents also show that at the facility, the frequency of use of force incidents appears to vary across time, though it is impossible to know if this reflects differences in reporting or differences in actual force. For example, no use of force incidents at all were reported from January 1, 2015 to May 25, 2016; while it is possible that none actually occurred, this seems unlikely given that regular use of force incidents were noted in published inspection reports both before and after this period. In the periods for which UWCHR reviewed records, outside this stretch of zero reported incidents, the use of force was documented with an average frequency of one incident per month.

 

NWDC reported use of force incidents by month

 

There is also considerable variation in the types of use of force documented. For example, during a thirteen-month period from April 2018 to May 2019, there were 13 uses of force reported in the facility, all of which involved chemical agents. It is unclear whether NWDC or local ICE leadership were particularly inclined to recur to chemicals as opposed to other forms of force during this period, or if other types of force were simply not reported for some reason.

Human rights concerns

The use of force is generally legally permissible, within certain bounds, in law enforcement settings. It may occasionally be necessary to use force to protect human rights, for example if facility staff witnesses a fight and intervenes to keep everyone safe; at least one use of force incident reported to the Tacoma Police Department was described in these terms. But from a human rights point of view, the use of force is a perennial concern in correctional settings due to the propensity for its abuse; active monitoring and intervention is required to ensure any use of force is as limited as possible.

Recognizing these concerns, ICE’s standards incorporate many provisions aimed at reducing the frequency and severity of force incidents. The PBNDS, for example, insists that force should be used only as a last resort when securing compliance via other means of persuasion fails, and that it should never be applied as punishment. When used, the amount of force must be limited in degree to that required to “gain control of a detainee.”[19] Furthermore, the PBNDS requires that all use of force incidents must be immediately and thoroughly documented, and reviewed by after-action teams who produce reports to ensure continuous improvement of practices.

While such standards are in keeping with expectations in prisons of the criminal legal system–indeed, they were developed based in part on such standards–it is important to recall that ICE detention facilities are sites of civil, not criminal, detention; this means those held in the NWDC are not detained because a court has concluded that they are a threat to public safety, nor because they have committed a crime, but simply because they are awaiting the outcome of their immigration proceedings. (ICE and GEO recognize this in their handbook for the NWDC, which instructs those incarcerated there: “Detention is NOT prison. It may feel like you are in prison but this detention facility is a place to have you stay while it is determined whether you will be deported or be allowed to remain in the U.S.”[20][21])

Under international human rights law, civil detention should only be used sparingly. The U.S.’ current practice of indefinite detention in civil prisons, under conditions that amount in some cases to torture, constitutes a major breach of international standards on multiple levels.[22] Indeed, UWCHR’s review of all available documentation regarding the use of force at the NWDC lead to the inescapable conclusion that it is this initial breach itself–the choice to detain people indefinitely, under conditions that deny many of the basic rights, for reasons unrelated to public safety–that creates the circumstances under which further violations, including incidents of excessive force, take place.

In the pages below, we outline three major areas of concern: the use of force against people with mental illness; the use of force against people engaged in nonviolent protests or hunger strikes; and the facility’s failure to follow its own rules, rendering untreated mental illness and protests/hunger strikes more likely, and thus increasing the propensity for further uses of force though escalating cycles of conflict and cruelty.

Uses of force against people with mental illness

Due to ineffective screening at the facility,[23] the incidence of mental illness among those detained in the NWDC is unknown.  While studies show that people with mental illness are overrepresented in encounters in jails and prisons generally, there have been no systematic studies of the prevalence of mental illness in ICE facilities, about which access to data is severely limited.[24] But it is very likely that, just as in other carceral facilities,[25] those with mental illness are disproportionately represented in the NWDC’s Restricted Housing Unit (or solitary confinement[26]), where that they are disproportionately “dealt with” through uses of force.

ICE standards require that any pre-existing medical conditions, including mental health needs, be taken into account prior to any calculated use of force. The PBNDS states, “If a situation arises involving a detainee with special needs, the appropriate medical or mental health staff shall be consulted prior to the calculated use of force. ‘Detainees with special needs’ include detainees with physical, intellectual, and developmental disabilities and detainees with a mental health condition that may impair their ability to understand the situation. Medical staff shall be consulted in circumstances involving special-needs detainees.”[27]

Yet according to ICE records, use of force incidents occur regularly against people who are designated Franco class members, meaning a judge has deemed them incompetent to represent themselves because of a serious mental disorder. In the cases reviewed by UWCHR, there were six such instances. In one such case from June 2020, chemical agents were deployed three times against a 26-year-old national of South Africa who had refused to exit his cell; guards first used pepper balls, then “direct impact pepper balls,” then OC spray (oleoresin capsicum, or pepper spray). The next day, he was placed in restraints.

Not all detained individuals with mental health disorders have received the Franco class designation, however. In the records reviewed by UWCHR, there were numerous other cases of individuals flagged as having mental illness who experienced uses of force. For example:

  • In March 2017, a 22-year-old Haitian man was in the medical observation unit “on mental health decompensation watch” and banging his tray against the window. A GEO officer entered the cell and placed his forearm on the man’s neck and carried out a manual “takedown,” causing the man’s head and back to hit the bed frame and wall of his cell as he fell. He was then placed on suicide watch. The incident was captured on video and later concluded to have been a violation of policy involving excessive force, according to internal ICE documents, though no mention is made of disciplinary action against the responsible officer.
  • Between March and May 2020, a 40-year-old Mexican man experienced six use of force incidents, five in response to incidents of self-harm and one in response to his refusal to submit to a strip search upon his return to the NWDC following a visit to a mental hospital.
  • In June 2020, Tacoma Police interviewed a man detained at NWDC and placed on suicide watch, who told them that he had been subjected to a use of force in which officers placed their knee on his neck, “like they did to Mr. Floyd” and twisted back his arms and shoulders to the point where he lost feeling in them; he was eventually taken to Tacoma General Hospital for his injuries, although ICE did not document this in any internal documents. When the man returned to the NWDC, he was placed on suicide watch and eventually taken to a psychiatric hospital, where he was treated for ten days. Upon his return from the psychiatric facility to the NWDC, he attempted suicide, was again put on suicide watch, and told police he was naked in his cell, with only a mattress on the floor, and was fed on a piece of paper; he said he felt like a dog in a cage, and that “Living in these conditions… only makes you worse.” He stated that he would rather die than continue to be held at the NWDC.[28]

Tragically, in many cases individuals with mental health challenges were subjected to escalating attacks over time. The pattern of incidents suggests a deterioration of the individual’s mental health over time, likely fueling, and being fueled by, the cycle of cruelty they experienced.

For example:

  • A 24-year-old Mexican former DACA recipient experienced 13 uses of force between June and August 2019, six of which involved the use of chemical agents. Some of the incidents were spontaneous reactions to reported assaults by this individual on GEO guards, others responses to erratic behavior or self-harm (for example, slamming his fists or head into cell walls/doors). Although the records do not indicate any mental health diagnosis, his spiral of violent behavior, including repeated incidents of self-harm, and his own statements (in one incident, for example, after being sprayed with a chemical agent and placed in restraints on his cell floor, he reportedly screamed “I am insane”) suggest some form of emotional disturbance.
  • A 20-year-old Sudanese national who entered the United States as a child refugee was subjected to seven uses of force at the NWDC. The first incident, on August 25, 2020, began when he was seen putting toothpaste on a cell window, and then refused to submit to restraints. He was then sprayed with chemical agents in multiple forms, as the Significant Incident Report documents: “The Use of Force Team delivered three, three round bursts of indirect pepper ball rounds through the cell door cuff port with each three round burst followed by directives to come to the cell door cuff port and submit to restraints. At approximately 1344 PDT until 1348 PDT, GEO officers delivered three additional three round bursts of direct impact pepper ball munitions into the cell, followed by directives to come to the cell door cuff port and submit to restraints. [Name redacted] continued to refuse GEO officer orders, and at approximately 1350 PDT, GEO officers dispersed a 3-5 second burst of OC vapor into the cell through the cuff port. [Name redacted] then complied with GEO officer orders and submitted to wrist restraints.”

In another incident involving the same Sudanese national, on August 18, 2020, he reportedly resisted GEO officers’ attempt to escort him out of the dorm. Although the document notes that spontaneous force was used, it does not specify what specific actions were taken; individuals who witnessed this incident, however, recall it as having involved an officer placing his knee on the man’s neck, evoking the widely-publicized murder of George Floyd by Minneapolis Police. ICE’s records appear to corroborate this, noting that the incident took place in view of a large crowd of other detained men who began shouting “Black Lives Matter” and “Get your knee off his neck,” after which all witnesses were transferred to different cell unit to “mitigate the risk of additional security incidents.”

In June 2021, after receiving his travel documents for his deportation to Sudan, the same man reportedly threatened suicide and took actions (tying bedsheets together and attaching them to an upper bunk) suggesting the seriousness of his intentions. GEO responded by using force to obligate him into restraints at the wrists and feet. He was later subjected to a final act of force when he refused to board the bus to take him to Yakima for deportation on July 6, 2021, and was transported while fully restrained at hands and feet.

While it is possible that when viewed in isolation, individual uses of force were “reasonable” responses by guards following GEO’s guidelines to maintain order in the facility, when taken as a whole they paint a disturbing picture of detained people spiraling into deep crises, likely exacerbated by the treatment they received.[29]

There are, of course, conditions other than mental illness that render individuals particularly vulnerable. Unfortunately, the documents reviewed do not offer any way to discern if detainees suffered from other pre-existing conditions that could be exacerbated by uses of force, including certain physical conditions or disabilities, respiratory illnesses, previous ocular injuries, or heart problems[30] that could be particularly relevant considerations when chemical agents are used. One recent study found that, “Chemical irritants caused injuries to many different body systems in addition to the expected pain to the skin and eyes. We also documented a range of injury severity for neurological, oropharyngeal, cardiac, pulmonary, and musculoskeletal systems. The psychological impact of the use of crowd-control weapons has not been well studied or documented in the medical literature, but cases described in this review indicate that exposure to CCWs [crowd control weapons] may result in significant psychiatric symptoms and long-term disability.”[31] Given that people detained at the NWDC do not have access to quality medical screenings or treatment,[32] it seems likely that any reviews of pre-existing medical conditions or vulnerability to serious complications performed prior to the use of chemical weapons is likely to be cursory, at best.

Use of force against protestors, including hunger strikers

The internal documents reviewed also show that both physical and chemical uses of force were deployed against those speaking out about conditions in detention, including those resorting to constitutionally-protected free speech actions like hunger strikes.

  • One hunger striker, a 26-year-old Somali woman, was subjected to force-feeding in March 2016.  ICE has been known to forcibly insert nasogastric tubes, PICC (peripherally inserted central catheter) lines, or urinary catheterization through the urethra to force-feed detained people; redactions in the document released to UWCHR make it impossible to know what method was employed in this case.[33] Whatever procedure took place was sufficiently uncomfortable for the hunger striker to “voluntarily” agree to stop her hunger strike midway through the incident. Physicians for Human Rights and the American Civil Liberties Union have found that such practices constitute torture, violating the U.S. Constitution and numerous international human rights standards; they emphasize that other, more humane, alternatives are available to keep detained people alive should ICE request assistance of local hospitals.[34]
  • In another case, in February 2018, over 120 detainees at the NWDC declared themselves on hunger strike,[35] and GEO guards responded with a use of force against three men in the C-3 pod, including one they identified as the “instigator” of the hunger strike. In this incident, Jesus Chavez was injured in the eye, as reported in ICE document and corroborated in his personal testimony released to the media.[36] ICE records state that he was “inadvertently pok[ed]… in the left eye”; his sworn testimony indicated he was “punched with a closed fist,” and that other hunger strikers were choked and thrown against walls.[37] The ACLU obtained a court order protecting Chavez from further violations of his First Amendment rights, but he and others were held in solitary confinement as “facility security threats” for 20 days.[38]
  • Two years later, in March 2020, a 27-year-old hunger striker from Eritrea was subjected to repeated blasts of chemical weapons when he refused GEO’s order that he transfer from the Restricted Housing Unit to the Medical Housing Unit as a result of his hunger strike. GEO initially deployed three pepper balls in his cell; a minute later, three more pepper balls were fired into the cell because he did not come to the cuff port to be handcuffed; four minutes later, an additional three pepper balls were deployed in the cell. Staff received authorization to hit the man with three more pepper balls at his “center mass” and then two additional pepper balls at his “center mass.” Use of force was applied once he used his mattress to block the pepper balls and was put in four-point restraints, shackled at the hands and feet.

ICE internal documents routinely describe hunger strikers or those engaged in other forms of peaceful protest as “facility security threats,” a designation that is used to justify uses of force against them and their placement in solitary confinement. This is, indeed, permissible under the PBNDS, which does not distinguish between threats of interpersonal violence and the “threats” posed by those speaking out about injustice. For this reason, even actions fully compliant with PBNDS standards may violate the core human rights of detained people.

Lack of effective remedy for those denouncing uses of force

ICE and GEO policies permit detained people to present grievances, in writing or in person, in cases where they feel they have been mistreated at the NWDC or other facilities; facility inspectors frequently review a selection of grievances filed as a way to ascertain the concerns of those detained. However, as documented in previous UWCHR research reports, the grievance system is not an effective means of responding to concerns, as complaints are frequently dismissed or ignored.[39] In the aforementioned police report from June 2020, in which a detained man on suicide watch reported having been subjected to a use of force he characterized as violent and unnecessary, he also “stated he has written incident reports to ICE and GEO, but nothing is done or followed up.”[40]  Indeed, when DHS’ own Office of the Inspector General (OIG) inspected the NWDC, they found that the facility’s grievance and communication systems violated ICE’s detention standards by failing to log grievances that were submitted and failing to respond to grievances in a timely fashion.[41] Relatedly, UWCHR researchers found that even in the cases of sexual abuse and assault–a subject about which many detainees express concerns, and on which federal law imposes clear and strict requirements even on civil detention facilities–national hotlines set up to receive complaints from within the facility failed to respond to reported abuses.[42]

Not only are the internal mechanisms to respond to complaints deeply flawed, in the case of an assault within the facility, detained people are unable to call the police to report crimes against them; 911 calls cannot be placed inside the NWDC. In some cases, Tacoma Police reports show that detained people asked others with whom they were in contact to notify the police of an abuse occurring inside, leading police to call in and ask to speak to specific detainees by name. But such cases are rare – and alarmingly, TPD records show that in several cases, the police received notification of an alleged crime and failed to investigate. In one case noted in ICE records, GEO staff notified TPD of an alleged assault and “The Tacoma police department refused to investigate stating they do not respond to the NWIPC.” In other cases, UWCHR reviewed TPD records which indicated that 911 calls were placed reporting alleged assaults and violence at the facility, both committed by detained people against one another and by guards against detained people, and yet no investigations were initiated. Apparently, like detainees’ unanswered calls to ICE’s national sexual assault hotline, these 911 calls to TPD wound up being “calls to nowhere.”[43]

Violations of GEO/ICE policies regarding use of force

For the reasons mentioned above, compliance with PBNDS standards is not considered sufficient to meet expectations for the protection of human rights. However, the fact that practices recorded in ICE’s own documents violate the agency’s own standards does raise additional concern about the degree to which functioning standards are truly in place at the facility. UWCHR researchers noted several deviations from the procedures required under the PBNDS, which are further underscored in the contract between ICE and GEO for operation of the NWDC.

Unauthorized or excessive uses of force

ICE records reviewed by UWCHR mention one incident in March 2017 in which the agency explicitly recognizes that a GEO officer violated the company’s use of force policy. No mention is made of any corrective action undertaken to hold the responsible officer accountable or to prevent similar incidents in the future; UWCHR does not have access to documentation that would reveal whether any such action was taken or not.

However, ICE documents also include mention of other details that suggest possible violations of GEO’s/ICE’s use of force policy. For example, many questions remain about the use of chemical agents: UWCHR researchers reviewed 30 incident reports describing deployment of chemical agents, but 22 of the 30 were so redacted as to make it impossible to know whether policies regarding their use were followed. Of the eight incidents in which information was not redacted on the documents shared with UWCHR, six suggest violations of GEO’s policies.

For example, as noted below, GEO policy permits two deployments of three one-second bursts of chemical agents, with five minutes in between.[44]

Case 5-18-cv-01125-SP Document 125-1 Filed 11:26:19 Page 36 of 150

 

Despite this policy,

  • In June 2020, a Mexican man refusing to submit to fingerprinting prior to deportation was subjected to three rounds of pepper balls, with less than five minute intervals between them:

    Excerpt from ICE Significant Incident Report, June 22, 2020

     

  • Also in June 2020, a South African man recognized by the court as mentally incompetent was subjected to seven rounds of pepper balls followed by three rounds of pepper spray, all within a 35 minute period. It is relevant to note that this occurred while he was in solitary confinement; under international human rights standards, individuals with mental illness should not be placed in isolation due to its harmful impacts on mental health. While ICE’s own standards mandate that “every effort shall be made to place detainees with serious mental illness in a setting in or outside of the facility in which appropriate treatment can be provided, rather than an SMU [Special Management Unit],”[45] UWCHR researchers found that according to ICE’s own records, some 34% of those in solitary confinement at the NWDC had been diagnosed with mental illness.[46]

    Excerpt from ICE Significant Incident Report, June 23, 2020

     

  • In August 2020, a Kazakh man was subjected to three five second bursts (instead of three one-second bursts as described in the above policy) of OC spray.
  • Also in August 2020, the 20-year-old Sudanese man referenced earlier in this report experienced his first use of force at the NWDC, which consisted of “three, three round bursts of indirect pepper ball rounds through the cell door cuff port,” followed one minute later by “three additional three round bursts of direct impact pepper ball munitions into the cell,” followed two minutes later by “a 3-5 second burst of OC vapor.” Less than two hours later, guards reportedly saw him covering the window in his cell, ordered him to stop and submit to restraints, and when he refused, deployed a new series of chemical blasts: first, “the Use of Force Team delivered three, three round bursts of indirect pepper ball rounds through the cell door cuff port with each three round burst followed by directives to come to the cell door cuff port and submit to restraints”; and two minutes later, “GEO officers dispersed a 3-5 second burst of OC vapor into the cell through the cuff port.”
  • In November 2020, the same Sudanese man was subjected to a physical use of force which witnesses report involved a neck hold,[47] forbidden under GEO policy. While the ICE document recording the incident does not describe the specific use of force tactic deployed, it does note that other detainees yelled “Get your knee off his neck,” which would seem to corroborate such accounts.  Similarly, Jesus Chavez provided sworn testimony to the court that in the same incident where his eye was injured, another detained man was repeatedly put in chokeholds by GEO guards. And the June 2020 Tacoma police report cited above notes the alleged victim’s assertion that the officer placed a knee on his neck and a knee on his back, “like they did to Mr. Floyd,” suggesting that such practices may be in use at the facility despite their prohibition.[48]

Denial of medical attention after uses of force

The PBNDS requires that detainees be provided immediate medical attention after all uses of force; GEO Group’s training materials on the use of force reinforce this requirement, stating “Medical examinations are not based on inmate/detainee response; inmate/detainee participants will always be examined by medical staff.”[49] The Significant Incident Reports reviewed by UWCHR do not provide sufficiently consistent documentation of after-event actions for researchers to ascertain the degree to which this policy is adhered to in practice at the NWDC. However, multiple detained persons have alleged that they did not receive immediate medical care following injuries sustained in acts of force, or that the medical care received was inadequate given the severity of their injuries:

  • Jesus Chavez, the hunger striker whose eye was injured in February 2018, asserted in sworn testimony that he was denied access to medical care for days following his injury, despite its being visibly swollen in video footage released after the fact. He asserted that while he was taken to the NWDC in-house medical unit, he was only given over-the-counter painkillers, and when one of its doctors recommended he be taken to a hospital, another provider refused to grant permission for the visit.[50]
  • In the February 2023 incident in which chemical agents were deployed repeatedly into an enclosed space with many people present, multiple people–both those in the cell where it occurred, but also people in adjoining areas who were reportedly exposed when the chemicals traveled through the ventilation system–reported coughing, headaches, and other sequelae from the incident, yet said they were denied medical care.[51]

Failure to document uses of force

In keeping with trends in carceral management, ICE’s standards require the rigorous documentation and analysis of information regarding uses of force. The PBNDS states that “ICE/ERO requires that all use-of-force incidents be documented and forwarded to ICE/ERO for review.”[52] A Use of Force form must be completed for each incident, identifying those involved and describing the incident; each staff member present must complete their own memo for the record and attach it to this form, which “must be submitted to the facility administrator by the end of the shift during which the incident occurred,” per the PBNDS.[53] For calculated use of force incidents, PBNDS also requires audio visual recordings of not only the incident itself, but a discussion prior to the use of force of the circumstances rendering it necessary, and a discussion after the use of force debriefing on its successes and/or failures.[54] Close-ups of the detainee’s body are also required in the recording.[55]

ICE standards also require that on the workday following the use of force, facility management must convene an After-Action Review team. The PBNDS explains that “the primary purpose of an after-action review is to assess the reasonableness of the actions taken and determine whether the force used was proportional to the detainee’s actions.”[56] Within two workdays of the detainee’s release from restraints, this team must submit its report to the facility administrator, who in turn must remand it to ICE’s Field Office Director within an additional two workdays.

While the PBNDS is not legally binding, the contract between ICE and GEO for administration of the NWDC reiterates its expectations; this enables ICE to act to enforce the terms of the contract should GEO fail to comply. As regards uses of force, the contract mandates the immediate notification of ICE officials “in the event of all emergencies,” with emergencies defined as including “staff use of force, including use of lethal and less-lethal force (includes detainees in restraints for more than eight hours).”[57] The contract further specifies mandates that “[a]n After Action Report must be submitted to the COR within 30 days of the incident, with corrective actions noted, if applicable,” and that video footage of any use of physical force by officers be shared with ICE.[58]

These robust reporting requirements, if followed, would provide an ample paper (and video) trail for researchers, auditors, or other interested parties, to follow for answers to basic questions about how many use of force incidents occurred during a given period, and whether they were judged appropriate based on ICE and GEO’s internal reviews. However, UWCHR researchers encountered numerous discrepancies to these reporting requirements:

  • Underreporting uses of force in internal recordkeeping. As noted above, only a single use of force incident was reported to have occurred in 2016, despite this being a period of high occupancy at the NWDC; this likely reflects severe underreporting of incidents rather than uncommonly peaceful conditions at the facility.
  • Underreporting uses of force to auditors. UWCHR researchers noted that in the annual audits performed by private contractor Nakamoto in May 2019, two use of force incidents involving chemical agents were reported from July to September 2018; ICE’s internal documentation (Significant incident Reports) noted four uses of force chemical agents during this period. Similarly, the Nakamoto audit performed in May 2022 noted zero calculated uses of force in March 2022, whereas internal ICE documentation reflects two.
  • Denial of access to researchers. Under FOIA, since August 2020 UWCHR has requested at least 17 different sets of documents pertaining to the use of force at the NWDC, including contract discrepancy reports, significant incident reports, use of force reports, after action reports, monthly injury summary reports, monthly status reports, contractor adverse employee information reports, and individual requests based on specific situations such as the cell block pepper sprayed in February 2023. Of these requests only two received a complete response (and one of those two was only through litigation), while the rest remain stuck in administrative limbo or have received “no records” responses even though such records are required to exist under the contract for operation of the facility.

Inasmuch as oversight mechanisms rely on access to reliable information about incidents after they occurred, these discrepancies raise troubling questions about the extent to which any inspections or facility reviews can be effective. As early as 2012, the Office of Detention Oversight noted in its inspection of the NWDC that following officer uses of force on detained individuals, the subsequent After-Action Reviews did not contain close-ups of the detained individual’s body during the medical examination, thus making it impossible to ascertain the presence or absence of injuries. All five of the use of force incident packets reviewed by the ODO during this inspection did not contain the required corresponding medical reports.[59]

Yet ICE appears to have taken no disciplinary action against GEO for these failures. Under Attachment A-1 to the Quality Assurance Plan included in the contract, violations of the PBNDS chapter on uses of force “permit the [ICE] Contract Officer to withhold or deduct up to 20% of a monthly invoice until the Contract Officer determines there is full compliance with the standard or section.” Despite this, ICE has made no apparent attempt to withhold payment from GEO despite the breaches brought to its attention by detainee complaints, media attention, grassroots organizing, court rulings, and facility inspection reports.

Conclusion

The documents reviewed by UWCHR present an incomplete, but deeply concerning, picture of use of force practices at the NWDC. First, they show that, as permitted under ICE standards, officers regularly use violence to induce compliance with their instructions and maintain order in the facility. The purpose of this report is not to excoriate officers for those decisions based on incomplete evidence of what transpired; rather, it is to encourage greater understanding of the degree to which violence, including the deployment of chemical weapons, are regular features of life at the facility, and in particular, to ask what human rights concerns are raised by such practices.

Second, the records reviewed suggest a disturbing pattern of violence and chemical weapons use against individuals experiencing mental health crises, many of whom are already held in segregation as the facility’s wholly inappropriate means of “managing” their mental health. Indeed, such treatment likely contributes to their illness.

Third, the records reviewed show that detained people engaging in hunger strikes are routinely deemed “facility security threats” and sent to segregation as such; if they resist their retaliatory placement in solitary confinement, they are routinely subjected to uses of force. ICE’s standards do not distinguish the refusal to eat from other forms of refusing orders, and offer no recognition of the rights of detained people to engage in peaceful protest activities under the First Amendment.

Lastly, the records reviewed reveal that ICE’s and GEO’s system of internal monitoring and oversight – its detainee grievance system, its reporting of uses of force up the chain for agency review, its facility inspections and its contract enforcement tools – do not work to detect and  remediate abuses that occur. With so little reason to believe these mechanisms offer any meaningful protection, those detained are more likely to experience despondency and other mental health challenges, and more likely to engage in protests. Yet both of these developments too often simply trigger additional uses of force.

All prisons require the use of force to operate. The question this report raises is not about the appropriateness of individual use of force actions, but about the system itself: by incarcerating people in conditions of extreme deprivation and offering no meaningful mechanism by which individuals can contest ill-treatment when it happens, the NWDC creates the circumstances under which the use of violence and chemical weapons has become a regular part of facility operations.

 

Notes

[1] The Northwest Detention Center is also sometimes referred to as the Northwest ICE Processing Center or Tacoma ICE Processing Center

[2] 68th Washington State Legislature, House Bill 1470, May 11, 2023, https://lawfilesext.leg.wa.gov/biennium/2023-24/Pdf/Bills/Session%20Laws/House/1470-S2.SL.pdf#page=1.

[3] See, for example, Nina Shapiro, “Northwest ICE Center Uses ‘Chemical Agents’ on Immigrant Detainees,” The Seattle Times, February 3, 2023, https://www.seattletimes.com/seattle-news/northwest-ice-center-uses-chemical-agents-on-immigrant-detainees/. Incident also mentioned in, Alexis Krell, “How are Chemical Agents Used at the Immigration Detention Center on the Tacoma Tideflats?” Tacoma News Tribune, February 15, 2023, https://www.thenewstribune.com/news/local/article272276968.html. Incident further mentioned in, Guy Oron, “‘These Are Not Detention Centers, These Are Prisons’: Hunger Strike Highlights Poor Conditions at NWDC,” South Seattle Emerald, February 22, 2023, https://southseattleemerald.com/2023/02/22/these-are-not-detention-centers-these-are-prisons-hunger-strike-highlights-poor-conditions-at-nwdc/. Also see,  KUOW Staff, “Hunger Strike Suspended at Tacoma ICE Facility, but Objections Remain,” KUOW Public Radio, February 6, 2023, https://www.kuow.org/stories/hunger-strike-ends-at-ice. Further see, Gustavo Sagrero Alvarez, “Ice Detainees in Tacoma Reportedly on Day Three of Hunger Strike,” KUOW Public Radio, February 3, 2023, https://kuow.org/stories/ice-detainees-in-tacoma-reportedly-on-day-three-of-hunger-strike. Incident is additionally covered in, Alexandra Martinez, “Over 85 People Incarcerated at Northwest Detention Center Go on Hunger Strike against Inhumane Treatment,” Prism, February 15, 2023, https://prismreports.org/2023/02/15/northwest-detention-center-hunger-strike-ice/.

[4] Despite repeated requests for information which should be publicly available under federal law, the materials released to UWCHR researchers were insufficient to draw conclusions about the appropriateness of individual acts of force at the Northwest Detention Center. For this reason, this report does not focus on scrutinizing individual incidents to judge them “appropriate” or “excessive” uses of force; instead we tackle the systemic question of what human rights implications arise from broader patterns in the use of force at this facility.

[5] For an overview of this history of criticism, see Alexa Villatoro, et al., “Over a Decade of Resistance to the Northwest Detention Center” Perilous Chronicle, June 2, 2021, https://perilouschronicle.com/2021/06/02/over-a-decade-of-resistance-to-the-northwest-detention-center/.

[6] 66th Washington State Legislature, House Bill 2596, 2020, https://app.leg.wa.gov/billsummary?BillNumber=2596&Year=2019.

[7]67th Washington State Legislature, House Bill 1090, April 14, 2021,  https://lawfilesext.leg.wa.gov/biennium/2021-22/Pdf/Bills/Session%20Laws/House/1090.SL.pdf#page=1

[8]  68th Washington State Legislature, House Bill 1470.

[9] ILRC Staff, “Ab 32 En Banc Decision, at a Glance,” Immigrant Legal Resource Center, September 2022, https://www.ilrc.org/sites/default/files/resources/ab-32_breakdown_-_september_2022.pdf.

[10] David Gutman, “Northwest ICE Detention Center to Remain Open after WA Law Deemed Unenforceable,” The Seattle Times, June 29, 2023, https://www.seattletimes.com/seattle-news/politics/northwest-ice-detention-center-to-remain-open-after-wa-law-deemed-unenforceable/.

[11] 68th Washington State Legislature, House Bill 1470.

[12] Annabell Joya, “Media Release: Governor Inslee Signs Bill Protecting People in for-Profit Detention,” Columbia Legal Services, May 12, 2023. https://columbialegal.org/media-release-governor-inslee-signs-bill-protecting-people-in-for-profit-detention/.

[13] This report was authored by Angelina Snodgrass Godoy with research from Guadalupe Alexander González and Lukas Illa.

[14] For more on this case, see Jaclyn Diaz, “GEO Group sickened ICE detainees with hazardous chemicals for months, a lawsuit says,” NPR, March 25, 2023, https://www.npr.org/2023/03/25/1165890634/geo-group-lawsuit-adelanto-ice-detainees-chemical-exposure.

[15] U.S. Immigration and Customs Enforcement, Performance-Based National Detention Standards 2011, revised 2016, p. 203, https://www.ice.gov/doclib/detention-standards/2011/pbnds2011r2016.pdf

[16] U.S. Immigration and Customs Enforcement, Performance-Based National Detention Standards 2011, p. 202.

[17] UWCHR was forced to bring litigation against DHS–twice– for access to ICE’s Significant Incident Reports. As a result, UWCHR received documentation for two separate periods: from January 1, 2015 to September 1, 2019, and March 1, 2020 to January 6, 2023. In other words, the records cover a total of 7 years, 5 months, spread out across two periods with a gap of 8 months in between. An additional Significant Incident Report for an incident on February 1, 2023 was requested separately.

[18] U.S. Immigration and Customs Enforcement, Performance-Based National Detention Standards 2011, p. 211.

[19] U.S. Immigration and Customs Enforcement, Performance-Based National Detention Standards 2011, p. 202.

[20] GEO Group and Department of Homeland Security, Supplement to the National Detainee Handbook, Northwest ICE Processing Center, 2022, p. 33.

[21] Similarly, GEO’s Use of Force policy for the Adelanto facility in California – which is likely similar to its Use of Force policy for the NWDC, although the NWDC’s Use of Force Policy remains secret – includes language reminding officers, “NOTE: ICE detainees are not convicted felons; they are in the Adelanto Detention Facility as Administrative Detainees.” (Emphasis added). See “Adelanto Detention Facility Policy and Procedure Manual: Use of Force. Number 10.2.15, Document 111-2, Case 5:18-cv-01125-SP (Rivera Martinez v. GEO),” GEO Corrections and Detention, p. 95.

[22] For more on international human rights standards governing civil confinement, see UWCHR’s report “Conditions at the NWDC: Background, Methodology, and Human Rights Standards,” University of Washington Center for Human Rights, March 27, 2020, https://jsis.washington.edu/humanrights/2020/03/27/nwdc-background-methodology-human-rights-standards/.

[23]In addition to UWCHR’s research on this topic, the Department of Homeland Security’s Office of the Inspector General received information from a source within the US Public Health Service—the institution whose staff provide health care at the NWDC, through the ICE Health Service Corps—about the NWDC’s failure to detect serious mental illness in a specific detained person. According to the source, the individual had a significant psychiatric history, but “had not been identified by facility mental health staff as having met seriously mentally ill (SMI) criteria, therefore, he was not closely monitored and tracked in order to determine whether he received appropriate care and follow-up care.”

[24] A recent study by Disability Rights California examining mental illness among those detained at the GEO-run Adelanto detention center found that ICE had identified 15% of those held in the facility as mentally ill, but DRC concluded this was a severe underestimate. See Aaron  J. Fischer, et al., “There Is No Safety Here,” Disability Rights California, March 2019, https://www.disabilityrightsca.org/system/files/file-attachments/DRC_REPORT_ADELANTO-IMMIG_DETENTION-ACCESSIBLE.pdf.

[25] See Human Rights Watch, Callous and Cruel: “Inmates diagnosed with mental illness are disproportionately represented in the isolation units to which prison officials send their more difficult inmates. The harsh conditions of being held alone in a cell 23 hours or more a day with little or nothing to do, coupled with the paucity of mental health treatment characteristic of such units, can lead to an increase in symptoms, more episodes of psychosis, and further misconduct. Experts say that use of force is more common in solitary confinement units than elsewhere in correctional facilities.” Jamie Fellner, “Callous and Cruel: Use of Force against Inmates with Mental Disabilities in US Jails and Prisons,” Human Rights Watch, May 12, 2015, https://www.hrw.org/report/2015/05/12/callous-and-cruel/use-force-against-inmates-mental-disabilities-us-jails-and.

[26] On this point, see UWCHR’s report “Conditions at the NWDC: Solitary Confinement,” University of Washington Center for Human Rights, November 30, 2020, https://jsis.washington.edu/humanrights/2020/11/30/nwdc-solitary/.

[27]  U.S. Immigration and Customs Enforcement, Performance-Based National Detention Standards 2011, p. 205.

[28] Tacoma Police Department Incident Report No. 2017200891.1

[29] See for example, Benjamin Meade, et al., “The Effect of Police Use of Force on Mental Health Problems of Prisoners,” Policing and Society, 2017, p. 229-244.

[30] The PBNDS states, “Medical staff shall review the detainee’s medical file for a disease or condition that an intermediate force weapon could seriously exacerbate, including, but not limited to, asthma, emphysema, bronchitis, tuberculosis, obstructive pulmonary disease, angina pectoris, cardiac myopathy, or congestive heart failure.” See U.S. Immigration and Customs Enforcement, Performance-Based National Detention Standards 2011, p. 206.

[31] Rohini Haar, et al., “Health impacts of chemical irritants used for crowd control: a systematic review of

the injuries and deaths caused by tear gas and pepper spray,” BMC Public Health, 2017.

[32] See UWCHR’s report “Conditions at the NWDC: Allegations of Medical Neglect,” University of Washington Center for Human Rights, April 16, 2020, https://jsis.washington.edu/humanrights/2020/04/16/nwdc-medical/.

[33] https://www.aclu.org/sites/default/files/field_document/aclu_phr_behind_closed_doors_final_1.pdf

[34] Eunice H. Cho, et al., “Behind Closed Doors: Abuse and Retaliation Against Hunger Strikers in U.S. Immigration Detention,” ACLU and PHR, 2021, https://www.aclu.org/sites/default/files/field_document/aclu_phr_behind_closed_doors_final_1.pdf.

[35] Melissa Hellmann, “Northwest Detention Center Hunger Striker Released After 20 Days in Solitary,” Seattle Weekly, March 2, 2018, https://www.seattleweekly.com/news/northwest-detention-center-hunger-striker-released-after-20-days-in-solitary/.

[36] Liz Jones, “Detainees on Hunger Strike Claim Guards Hit Them,” KUOW Public Radio, February 12, 2018, https://kuow.org/stories/detainees-hunger-strike-claim-guards-hit-them/.

[37] ACLU of Washington, Jesús Chávez Flores v. U.S. Immigration and Customs Enforcement, October 10, 2018.

[38] Melissa Hellmann, “Northwest Detention Center Hunger Striker Released After 20 Days in Solitary.”

[39] See especially “Conditions at the NWDC: Sanitation of Food & Laundry,” University of Washington Center for Human Rights, March 27, 2020, https://jsis.washington.edu/humanrights/2020/03/27/nwdc-sanitation-of-food-laundry/.

[40] Incident No. 2017200891.1

[41] DHS Office of the Inspector General, OIG-20-45, Capping Report: Observations

of Unannounced Inspections of ICE Facilities in 2019, July 1, 2020, https://www.oig.dhs.gov/sites/default/files/assets/2020-07/OIG-20-45-Jul20.pdf.

[42] See UWCHR’s report “Calls to Nowhere: Reports of Sexual Abuse and Assault Go Unanswered at the NWDC,” University of Washington Center for Human Rights, May 16, 2022, https://jsis.washington.edu/humanrights/2022/05/16/nwdc-assault-abuse-reporting/.

[43] UWCHR, “Calls to Nowhere: Reports of Sexual Abuse and Assault Go Unanswered at the NWDC,” University of Washington Center for Human Rights, May 16, 2022, https://jsis.washington.edu/humanrights/2022/05/16/nwdc-assault-abuse-reporting/.

[44] As the image indicates, this was GEO’s policy from November 2014; ICE declined to respond to UWCHR questions as to whether this remains the governing policy today.

[45] U.S. Immigration and Customs Enforcement, Performance-Based National Detention Standards 2011, p. 172.

[46] See UWCHR’s report “Conditions at the NWDC: Solitary Confinement,” University of Washington Center for Human Rights.

[47] Testimony provided by La Resistencia.

[48] Incident No. 2017200891.1

[49] Emphasis in original. The Geo Group, Inc. “Use of Force” Slide presentation, Case 5:18-cv-01125-SP Document 125-1,” p. 60.

[50] ACLU of Washington, Jesús Chávez Flores v. U.S. Immigration and Customs Enforcement.

[51] Testimony provided to La Resistencia.

[52]  U.S. Immigration and Customs Enforcement, Performance-Based National Detention Standards 2011, p. 207.

[53]  U.S. Immigration and Customs Enforcement, Performance-Based National Detention Standards 2011, p. 211.

[54] U.S. Immigration and Customs Enforcement, Performance-Based National Detention Standards 2011, p. 207.

[55] U.S. Immigration and Customs Enforcement, Performance-Based National Detention Standards 2011, p. 207.

[56] U.S. Immigration and Customs Enforcement, Performance-Based National Detention Standards 2011, p. 212.

[57] U.S. Immigration and Customs Enforcement and The Geo Group, Inc., Indefinite Delivery Contract HSCEDM-15-D-00015, awarded on September 28, 2015, p. 5 of the included Quality Assurance Plan.

[58] U.S. Immigration and Customs Enforcement and The Geo Group, Inc., Indefinite Delivery Contract HSCEDM-15-D-00015, awarded on September 28, 2015, p. 84.

[59] Office of Detention Oversight, Compliance Inspection, Enforcement and Removal Operations Seattle Field Office Northwest Detention Center Tacoma, Washington January 10 – 12, 2012https://www.ice.gov/doclib/foia/odo-compliance-inspections/2012northwest-detention-center-tacoma-wa-jan10-12.pdf.