Swink had been arrested during a night of heavy drinking at her home that evening. Swink admits that she was still somewhat intoxicated at the time but recalled that the pain was nearly unbearable as her face was coated with oleoresin capsicum.
“It felt like somebody just crushed up fresh peppers and made me use them as face cream,” Swink told The Washington Post. “It took my breath away. You’re fighting for air. I remember my mouth was filling with a thick slobber, like foaming up — and that was also blocking my airway.”
“I thought I might die,” she added.
Jailhouse video appears to match Swink’s description of the Nov. 15, 2015, incident.
In the four-minute clip captured by a camera in the isolation cell, Swink can be seen struggling and coughing; she appears to pass out after her face is covered with a bright orange substance.
Montgomery County Sheriff Phil Plummer said Tuesday that he hadn’t viewed the video footage, but he acknowledged that Swink was pepper-sprayed while restrained, violating his department’s use-of-force protocol.
He called it “an isolated incident.”
“Thirty percent of my jail is people suffering from mental illnesses,” Plummer said by telephone. “There are a lot of situations that the police officers should not be dealing with, but everybody wants to blame the police.”
Late Tuesday, Swink filed a lawsuit in U.S. District Court in Ohio, accusing members of the sheriff’s department of using excessive force “that amounted to torture.” The filing also alleges that department officials orchestrated a coverup aimed at destroying evidence of the incident.
Plummer — who had not seen the complaint at the time he was interviewed — said he could not comment on specific accusations from the filing.
But, he said: “We will definitely oppose the lawsuit. This isn’t that egregious where she’s walked away with any serious injuries. The officer she spit on should sue her.”
According to a National Institute of Justice research brief, most U.S. law enforcement agencies have used pepper spray since the late 1980s “as a use of force option to subdue and control dangerous, combative, or violent subjects in the field. OC, with its ability to temporarily incapacitate subjects, has been credited with decreasing injuries among officers and arrestees by reducing the need for more severe force options.”
An earlier paper from the NIJ — a Justice Department agency — noted that pepper spray “incapacitates subjects by inducing an almost immediate burning sensation of the skin … and swelling of the eyes. When the agent is inhaled, the respiratory tract is inflamed, resulting in a swelling of the mucous membranes lining the breathing passages and temporarily restricting breathing to short, shallow breaths.”
But the incident in Dayton appeared to violate widely accepted law enforcement practices.
“You cannot find any training manual that will tell you it is allowable to pepper-spray somebody who is restrained,” said Kamran Loghman, a U.S. Naval Academy professor who helped develop pepper spray for law enforcement use. “It is used to avoid confrontation or injury, so you don’t escalate to higher levels of confrontation. Pepper spray, therefore, should not be used if the subject is expressing verbal disagreement or anger.”
Last month, a Georgia sheriff’s deputy was fired and charged with a felony after an investigation determined that she’d used pepper-spray “to punish a jail inmate who spit in her face while his hands and feet were in restraints,” according to the Associated Press. Sgt. Charlesetta Hawkins was charged with cruelty to an inmate.
Plummer, the sheriff, and Swink’s attorney, Douglas Brannon, agree on much of the timeline from that night in November.
Both parties say Swink drank excessively before landing in jail, where “she exhibited a belligerent attitude.” The complaint notes that Swink kicked at the arresting officer; Plummer said Swink spit on the officer and punched a cell window once inside the jail.
She continued to act disruptively by screaming and banging on the glass, both parties agree, leading Sealey to pepper-spray Swink the first time.
Although Swink was no longer causing a disturbance, the complaint states, Sealey ordered officers to place her in a restraint chair and move her to an isolation room.
After being unable to move for an hour and a half, Swink began yelling, the complaint states.
“Shortly thereafter, Defendant Sealey went into Plaintiff Amber Swank’s cell with another can of OC spray and intentionally and maliciously sprayed Plaintiff Amber Swink’s face and body with the OC spray until she became unconscious and suffered permanent, serious, and debilitating injuries.”
Plummer agreed that there was no reason to pepper-spray Swink, since “she was already restrained.”
“We don’t tolerate once you’re secured using pepper-spray on you because the threat is neutralized,” he said. “That’s the mistake that Sgt. Sealey made.”
Plummer said Sealey received a written form of discipline known as a “letter of citation,” which would remain in her file for six months. The sheriff said he couldn’t remember when the incident came to his attention, but he said he hadn’t seen the video because footage is stored only for 30 days before being deleted.
“It just got caught in that cycle,” he said.
Plummer said Sealey would not be made available to comment.
According to the complaint, sheriff’s department policy says any footage of a use-of-force incident is supposed to be permanently saved on a department hard drive and burned onto a disc that must be stored for at least seven years. Any time pepper spray is used on an inmate, the complaint continues, employees are also required to fill out a use of force report.
But Sealey never filled out the report, the complaint states, and Plummer never required her to — “so that there would be a lack of evidence of the excessive use of force (OC spray assault) and less likelihood that the matter would be made public.”
The complaint also alleges that “several private meetings were held” within the department to discuss how officials might conceal Sealey’s actions. Department officials eventually decided to destroy electronic data and reports to prevent litigation, the suit states.
Plummer did not respond to requests for comment Wednesday, the morning after the lawsuit was filed.
But on Tuesday, he said Sealey has “learned from” the pepper-spraying incident.
“She is a very good officer, one of the best community officers we have,” he said. “The public loves her. I wish I had 20 of her.”
The sheriff noted that he personally promoted Sealey to captain and said she is the first minority woman on his department’s command staff.
Swink’s complaint claims that Sealey made captain because she is a black woman and that her promotion followed accusations that several deputies within the department sent racist text messages on their personal cellphones.
Brannon, the attorney, said Sealey should be charged with a crime and fired immediately.
“I can’t fathom that the sheriff would even consider keeping this employee in light of the fact that her conduct was intentional, deliberate and abusive and directed towards an individual that was completely unable to protect herself,” he said.
Swink said her pepper-spray exposure has left her with chronic breathing problems. A busy mother of four, she said she often finds herself gasping for breath the same way she used to as a child, when, she said, she suffered from asthma.
“It’s hard to play with my kids,” she said. “I have to stay inside with the air conditioning so I can breathe.”
There are emotional scars as well, she said: She avoids police whenever possible and said she can’t bear to watch the video that shows her face being blasted by pepper spray.
“My whole life, I looked up to law enforcement,” Swink said. “They would come into our schools and talked to us and they were supposed to be some of the best people you could trust and call on.
“But now I wonder if there’s really anybody watching out for me and my family.”