SUPPLEMENTAL AFFIDAVIT OF MARTIN K. MICHELMAN, SR.

,
CHES, CHS-III

1. My name is Martin K. Michelman, Sf. and I have personal knowledge ofthe facts
set forth in this supplemental affidavit.

2. My residential address is 75 Grover Street, Revere, MA 02151.

3. Pursuant to Mass. R.Civ.P. 26(a)(2), I, Martin K. Michelman, have prepared a

report that contains a complete statement of all opinions to be expressed and the
basis and reasons therefore; the data and other information I considered in
forming my opinion; the exhibits or list of references I used as a summary of or
support for the opinions. A copy of my curriculum vitae and of my qualifications
is attached.

4. I was contacted by your office regarding a series of use of force incidents that
occurred at the Worcester County Rouse of Corrections ("WCRC") involving the
MOVE team and a group ofinrnates between 2006 and 2008. In addition, I was
asked to opine whether the WCRC, its employees, the Sheriff, The
Commonwealth of Massachusetts, US Corrections Special Operations Group
Corp. and the training materials ofFNR USA comply with acceptable standards
of care in the correctional industry as it related to the use of force during these cell
extractions and the use of restraints that followed after these cell extractions.

5. Because of my experience and training in the field of corrections I am very

familiar with the Eight Amendment prohibitions against cruel treatment and
punishment and with the standard of deliberate indifference articulated in Farmer
v. Brennan, 511 U.S. 825, 834 (1994).

6. You have asked me to opine specifically whether or not the actions that I
observed in a number of cell extractions at the WCRC comply with acceptable
correctional/standards of care.

7. My opinion is that they do not.

8. I have attached a copy of my curriculum vitae for your consideration and review,
Between 1991-today. In the past I worked at the Suffolk County Sherriffs
Department (SCSD). There I rose to the rank of Deputy Sheriff, Deputy
Superintendent, and Director of Training and Special Operations. There I
developed a state of the art training facility for correctional officers in Chelsea,
MA.

9. I will restate my experience as a trainer to law enforcement professionals and

correctional staff on the use of force:

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• I was the lead instructor for use of force, defensive tactics and fireanns training at
the SCSD (1991-2004);

• I designed the approved use of force report fonn which was implemented to aid in
reporting the use of force;

• I reviewed, revised, and recommended changes to the use of force policy;

• I was the lead instructor for the SCSD for the implementation of Forced Cell
Move Training for the Sheriffs Emergency Response Team (SERT):

• I am experienced and have trained hundreds of correctional officers on the

appropriate procedures to remove or extract inmates/prisoners from their cells
when the circumstance require it;

• I also have experience with the use of force and in particular with the FN Herstal
303 less-lethal launcher: My experience is as follows:

• I have observed a demonstration at Boston Police Department Pistol Range 2003;

• I was trained and certified in its use in July 2006;

• I incorporate by reference from my previous affidavit the experience that I have

with handling inmates grievances.

10. In order to prepare this supplemental affidavit, I reviewed a number of documents

which include the John Campbell complaint.

11. In this case I have reviewed the Complaint ofMr. Campbell, his deposition, as
well as the depositions of Mr. Vacca, Mr. Gow, and Mr. Hmju's. I also read the
deposition of Joseph Garcia who was one of the trainers who trained the staff at
theWCHC.

12. For purposes of this supplemental affidavit you have asked me to review the
contents of a motion for summary judgment that has been advanced by FNH
USA, LLC.

13. As I understand the motion, FNH USA claims that they are not at fault in this case
because:

• They had no responsibility "for establishing rules defining the use of force in
cell extractions at the Worcester County House of Corrections"; (but their
materials and documentation influenced the creation of the WCSO policies
which were then implemented and followed)

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 • They had no responsibility "for tactical or strategic training related to the
implementation of those rules by Correctional Officers at the Worcester
County Sheriff's office (the individuals who would actually use the FN 303
less lethal launchers in cell extractions)."

• They had no responsibility as they argue that "Tactics and strategy were
entirely defined and implemented by the Worcester County Sheriffs Office
following advice and instruction obtained from, US Corrections Special
Operations Group;

• They had responsibility because "the FN 303 less lethal launcher were only
sold through authorized dealers to sophisticated end users like the Worcester
County Sheriffs Office."

• "FNH [allegedly] also warned sophisticated end users of the risk associated
with discharge of the NF 303 with on product warning and otherwise."

14. I also read FNH's "Statement of Undisputed Material Facts" which raises the
following issues that I intend to address below as it relates to the following
contentions FNH advances:

• That the use of the FN 303 is necessary to extract prisoners from tight
quarters;

• That the use of traditional cell extractions (without the FN 303) "routinely led
to injuries to inmates and correctional officers alike";

• That the FN 303 "Less Lethal Launcher" reduces the severity of injuries to
inmates" or to correctional staff;

• That "the end result was a dramatic reduction of disabling injuries to both
inmates and correctional officers because less force had to be used."

15 . You may recall that in my original affidavit I came to a number of preliminary

conclusions without having reviewed a number of video tapeslDVD's of cell
extractions at the WCHC. I will summarize what my previous conclusions were:

16. I briefly opined on Mr. Gow's cell extraction and concluded that, in my
professional opinion, the use of force that I observed to extract Mr. Gow from his
cell was dangerous, extraordinary, unwarranted, cruel and excessive. ,-r 56-57.

17. That extraction failed to comply with best practices on the use of force in
correctional settings.

18. I also found alarming that the WCHC would use pepper spray and not allow -- -

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 "

adequate time for it take effect before immediately escalating the level of force
and deploying this dangerous weapon (FN 303) in close quarters. Id. at ~ 58.

19. I also found it alarming that inmate Gow was shot while in the comer of his cell
with his hands up in a non-threatening position of disadvantage. ~ 59.

20. I also found it unconscionable and illegal that this weapon appeared to have been
used as a pain compliance teclmique even after correctional staffhad control over
Mr. Gow. ~ 60.

21. I said that in my professional opinion the supervisory staff at the WCHC grossly
deviated from acceptable standards of care when they use such a dangerous
weapon for cell extractions in such close proximities and that to my knowledge
the WCHC is one ofthe few correctional facilities in this state I am aware of that
employs the FN 303 for cell extractions. ~ 61-62.

22. I opined that the FN 303, a weapon that I am trained to use, is a riot control
weapon to be used in area denial or specifically applied to a targeted individual
from distances greater than used in this instance or those remotely suggested by
the manufacturer FN Herstal. Id. at ~ 63.

23. I also reviewed affidavits that were prepared by the FNH Director of Training
(Mr. Buie): In order to formulate my opinion, I read number of affidavits that
were submitted which he prepared.

24. In his affidavit, Mr. Buie from FNH recognizes that "Death and Serious Injury
may result from projectiles striking the head or neck. ~ 5 (2). That: When
deploying less lethal projectiles, "shot placement is the most crucial means of
preventing serious injury from extended range less lethal projectiles." He further
states: ''Never target the head or neck." ~ 5 (5). That, "The FN 303 projectiles
should be targeted at a person's torso or extremities depending on the distance
between operator & subject." ~ 5 (6). "If possible, direct shots towards the
clothed portion of the subject body to reduce the possibility of cuts and/or
abrasions to the exposed skin." ~ 5 (7). "Subject factors: Children, elderly
persons, malnourished and/or person with specific medical conditions, and
developing fetuses, may be more prone to bone fracture and injury of soft tissue
of the thorax and abdomen from blunt force trauma." ~ 5 (9). "When deploying
the FN 303 Launcher in close combat situations (3-12 feet, 1-4 meters between
the operator and the subject), the recommended target area is the thighs of the
subject (not center of mass). " 5 (10).

25. I also read a second affidavit prepared by Mr. Buie in which he describes the FN
303. In it, he states: "The FN 303 utilizes air to launch .68 caliber fin-stabilized
projectiles weighing 8.5 grams from a fifteen round drum-shaped magazine. The
projectile is constructed of friable clear plastic shell which is designed to shatter
upon impact."

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 26. I also read affidavits prepared by WCHC staff involved in the cell extraction
teams including: Capt. Giles, Lt. Darcy, e.o. Andre, C.O. Hamilton, C.O. Roy
and e.O. Decoteau. I believe it was Capt. Giles who said that "While it is
obvious to me (and I believe all of the corrections officers undergoing training)
that projectiles launched toward the vulnerable areas of the body like the head and
neck and the groin area could result in serious injury or even death, nonetheless
USC SOG spent considerable time with me and other trainees ... [S]pecifically,
USC SOG advised never to target the head or neck or above the shoulders.
Instead we were instructed to target a person' s torso or extremities." " 9.

27. Capt. Giles said in an affidavit: "With the implementation of the SOG and the use
of the FN 303 less lethal launcher, there has been a dramatic decrease in injuries
during forced cell extractions. While my fellow correction officers and I
understand the potential for serious injury if a (sic) FN 303 is discharged into a
high risk area of the body like the face, eyes, groin, I do not believe that there has
been a single serious injury to an inmate as a result of a discharge or deployment
of an FN 303. 1 Similarly, I cannot bring to mind a single disabling injury to a
corrections officer since we began using the FN 303. Through our training on the
FN 303, we are aware of and take steps to assure proper targeting. The FN 303
has been very beneficial to Worcester County Sheriff's Office in its efforts to
move non-compliant inmates in ways to minimize injuries." ~ 17.

28. I strongly disagree with Capt. Gile's assertion that the FN 303 minimizes injuries
or that its use at the WCHC complies with acceptable standards of correctional
care. For starters Capt. Giles affidavit lacks any documented studies or reports
of injuries or statistical analysis or a sampling of that data that would explain the
benefits of conventional cell extractions vs. the benefits of the FN 303 as a
weapon of choice for cell extractions and a comparative analysis of the reduction
of injuries.

29. I have not seen any evidence advanced in any of these affidavits to convince me
that the FN 303 contributes to a dramatic decrease in injuries during cell
extractions. The converse is true, it is my opinion that this weapon particularly
for cell extraction greatly enhances the possibility of injuries to inmates during
cell extractions. This is particularly important given the responsibility of a jailor
correctional facility to use force only in a manner that complies with the
Constitution. (i.e. the use of force must be appropriate and not excessive).

30. The basis for my opinion is as follows: Conventional Forced Cell Move (FCM)
tactics consist of a Team Leader, Shield Man, Arm Control-Right, Arm Control-
Left, Leg Control-Right, Leg Control-Left and Camera Operator. Each team
member has a specific role and responsibility in the application of force during
the FCM.

I As I shall point out in my discussion below, this is simply not the case.

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31. After all efforts to defuse or de-escalate have been attempted by housing unit
officers, area supervisors, Emergency Response Team Supervisor, and possibly
other command staff, the inmate is given a fmal set of warnings in which they are
- asked to comply with directions to be handcuffed, advised ofthe consequences
for failure to comply (loss ofrec-time, lock-down, library, visits, etc.), and then a
final order to comply.

32. If after the above stated attempts have failed and the inmates behavior(s) is still
deemed to be such requiring a forced cell removal at that time; then pepper spray
(if not medically contraindicated) would be deployed as a means to seek
compliance. If the pepper spray achieves the desired effect, the inmate is ordered
to walk backwards to the door for handcuffing through the food trap or directed to
lie face down on the cell floor. Then the door is opened and officers enter the cell
to control and restrain the inmate. If the pepper spray does not achieve the
desired effect, the inmate continues to resist, further attempts to verbally achieve
compliance do not work and the inmate refuses to cooperate, then the team will
enter the cell with the shield man attempting to pin the inmate allowing for the
control officers to gain limb control. Once stabilized and no longer resisting,
handcuffs and leg irons are applied. The inmate is removed from the cell, placed
in the restraint chair and afforded immediate medical evaluation and
decontamination.

33. In situations which the pepper spray is contraindicated, inappropriate or does not
work, and after multiple attempts to seek cooperation through verbal conflict
management methods the team will rapidly enter the cell and pin the inmate with
the shield, then move the inmate into a position for the application of handcuffs
and leg irons.

34. Additionally reports (incident reports, use of force reports, disciplinary repOlis,
medical reports, supervisor reports, and review of same) should reflect: who if
anyone (unit officer, area supervisor, shift commander, MOVE team leader)
spoke to the inmate and asked, advised and ordered him to cuff up, use of force
reports from the MOVE team members that explain what they were told, what
they did upon getting called to the unit, what briefings they received prior to
going to the unit, what preparations, supervisory oversight, medical information
of inmate was provided, what was the purpose of the move, what was the inmates
behavior prior to the move, whom if anyone made contact with the inmate,
explained to the inmate the consequences of failure to follow a particular rule or
regulation from the inmate handbook such as a direct order/destruction of
property, etc.

35. Infomlation should include and is not limited to: the unit officer repOlis,
disciplinary charges ("tickets"), supervisor reports, logbook entries and
documentation that chronicle what led up to the forced cell move such as the
behavior of the inmate that was detennined to be "violence" etc.

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36. In the review of documents provided, I was unable to locate information, in
accordance with the WCSO policies that chronicle the events from the initial
inmate behavior(s) which created the need for a supervisor to approve and
authorize the forceful removal of an uncooperative or violent, or destructive
inmate up to the point of which the forced cell move team video identifies the
inmate, location, reason for move and team members.

37. There was no information provided to me that explains what attempts were made
to de-escalate the confrontation, defuse the situation or to render a reasonable
alternative to the use of force.

38. Additionally, I was unable to locate any documentation that describes, articulates,
explains or otherwise gives insight into the behavior(s) of the inmate(s) after the
unit officer request for a supervisor and prior to the conduct of the forced cell
move.

39. In fact what I did observe was inmates that were uncooperative by virtue of
passive resistance (standing in middle of cell) or hiding behind mattresses for
protection.

40. It is unquestioned that there are foreseeable situations in the corrections field
which will require the use of force. Those situations are identified in the WCSO
Use of Force Policy (924.09).

41. In my opinion how the WCSO trains its officers to interpret and understand when
to use force, how to use force and how much force to use is at issue. Force used
must be reasonable. Just because an inmate refuses a proper order or damages
property does not always necessitate a forceful cell extraction. Secondary to
training and perhaps more importantly is the level, degree and extent of training
the supervisors receive in terms of not only the use of force but overseeing and
enforcing the WCSO policies and procedures.

42. I have also reviewed a 5:09 minute video from National Geographic that appears
in the internet (YouTube) entitled "The FN303 Less Lethal Round is Greatly
Improved by Lamperd Less Lethal (LLL.PK)."
http://www.youtube.com/watch?v=xli4D8rlneo.

43. It shows the type of force the FN 303 launcher generates and the likelihood of
injury that follows from its use as well as the reduced likelihood of injury when
the Lamperd ammunition is used.

44. The comparison between these two types of munitions convincingly demonstrates
to me as a person who trains officers (including correctional officers) in the use of
force the potential depth of penetration between these two kinds of munitions.

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 -~

45. I also viewed another promotional video published on YouTube entitled "Slapshot
vs. FN 303. http://www.youtube.comlwatch?v=KaX20WOarh4. The video
prepared by Slapshot purports to do a comparative analysis between the FN 303
and Slapshot. As the video shows the energy generated by the FN 303 system is
30.8 Joules (8.53g at 85m/seconds plastic target). The 3D analysis shows how
upon impact the FN 303 round shatters and creates a 6.33 mm deep cavity.

46. The video demonstrates that the Slapshot ammunition produced the same kinetic
energy but less than a half of the FN 303 penetration with the same energy.

47. I have read and I am familiar with the report prepared by the Commission
Investigating the Death of Victoria Snelgrove, by appointment of the Boston
Police Commissioner back in May 25, 2005.
http://www.cityofboston.gov/Images Documents/sternreport tcm3-8954.pdf

48. A few things should be mentioned about that report. Ms. Snelgrove was killed by
a fatal shot from an FN 303. Report at p. 2. The Commission found that before
Ms. Snelgrove was fatally struck, two other individuals were hit in the face by FN
303 projectiles and began bleeding. Id. at 3.

49. Yet despite this, the WCRC chose to use this weapon apparently without any
serious reservations.

50. I think it is important to underline some of the findings that were made by the
Commission.

51. It found that the BPD did minimal investigation concerning the FN 303
performance and safety before purchasing these weapons and that such efforts
were hampered by the general lack of data on less-lethal weapons and the lack of
national standards. Id. at 4. The training of officers in the use of this weapon was
incomplete. Id. at 4.

52. The BPD viewed these weapons as "non-lethal." Moreover, as I believe it to be

true in this case, the Commission noted: "The fact that the rounds are advertised
by the manufacturer as never causing a 'perforation ofthe skin," which proved
inaccurate may have contributed to this misunderstanding." Id. at 4.

53. The Commission found (as I partially find in this case) "The manufacturer has left
to each individual police department purchasing the FN303 the training on when
to use it." Finally, the Commission noted, " . .. [w]e are unaware of any definitive
independent study addressing this question of safety, particularly the risk of
penetration. The outcomes here - three shots to the head, one resulting in death
and two resulting in penetration - seem inconsistent with the manufacturer's
representations that the projectiles will not penetrate the skin." Id. at 4.

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 54. The " . .. FN 303 will remain under cloud until specific independent tests (ofthe
sort we suggest) are conducted. Quite apart from the other steps we recommend
(such as the adoption of clear policies and adequate training), the Boston Police
Department should not use this weapon until the tests are completed." Id. at 5.

55. I am only aware of one Technical Note published on this product. Mesloh CT, et
al Evaluation of the FN 303 Less Lethal Projectile, Journal of Testing and
Evaluation, Vol. 34, No.6, March 13,2006 available online at www.astm.org.
The study discusses the accuracy of this weapon and how it is possible with this
weapon to strike at distances greater than 55 yards. This study does not discuss or
recommend the use of this product in cell-extractions or its use in short distances
because of drawback associated with these weapons. The article generally warns
about the obvious, "Kinetic weapons, on the other hand, respond quite well at
distances over 21 ft but suffer the limitation of transferring excessive energy at
close range. [2]2 A number of death and serious injuries have been documents
from these weapons at various close ranges. As a result, the greatest weakness in
the existing less lethal arsenal is the distance that each tool can be safely
deployed." p. 1.

56. I use the term "partially" because there is evidence in documents that I have
reviewed that suggest to me, contrary to the assertions made by Mr. Buie in his
affidavit that FN Herstal did playa role, and had a responsibility for the tactical or
strategic training related to the implementation of those rules by Correctional
Officers at the Worcester County Sheriffs office during cell extractions.

57. I also say this because I strongly disagree with the statement that Mr. Buie made
on behalf ofFN Herstal, that the company had no responsibility in connection
with the tactics and strategy for the use of their product.

58. I also disagree with Herstal's or Mr. Buie's assertion that the "Tactics and
strategy were entirely defined and implemented by the Worcester County
Sheriff s Office following advice and instruction obtained from, US Corrections
Special Operations Group. I say this for a variety of reasons. It was, FN Herstal,
the manufacturer of this product after all that promoted this product as being used
for "short distance safety." It was Herstal also who promoted this product to the
WCHC and to others as enjoying the following benefit: "Low risk of permanent
injuries even at very short range." (See discussion below).

59. It was also FN Herstal's literature, in part, that influenced the WCHC and others
to think that this weapon was safe for purposes of "Prison cell extractions" as they
claim in their promotional literature.

60. It is my opinion in this case, after reviewing a Memorandum that was circulated
by William Buie from Herstal on March 10, 2010 (I understand approximately

2 See, e.g., Hubbs, K., and Klinger D, "Impact Munitions Use: Types, Targets, Effects," National Institute
of Justice, NC 204433, 2004.

9
 less than twenty days after you filed the Campbell case in Court) that FNH was
involved in training staff from the WCHC. The Memorandum confirms that
around February 16,2007 Mr. Buie, Director of Training for FNH USA
"[I]nstructed a[] FN 303 less 1etha11auncher agency instruction certification
course at the East Hartford Police Department."

61. As part ofthat training Mr. Buie said "It is FNH USA policy that law enforcement
and correctional officials notify FNH USA to arrange the one day of training in
order to be in compliance prior to any police officer, sheriffs deputy or
correctional officer utilizing the FN303 less lethal launcher. This type of training
requires a one-day class with review of the system, corresponding documentation
written test, practical test and live shooting session." 3

62. Moreover, the list of participants included three correctional officers that appear
in many ofthe cell extractions that I have reviewed at the WCHC. They were:
CO Terrence DeCoteau, Shawn M. Eldridge and Daniel J. Mara. All ofthem were
WCHC correctional officers. As part of the curriculum the WCHC staff was
responsible for "[Describ[ing] the proper target areas and minimum safety
distances and maximum distances when deploying the FN 303 less lethal
launcher." Likewise, it would have been during that training that staff from the
WCHC would have learned that as per the FNH USA training: "When deploying
the FN303 less lethal launcher in close quarter situations (3 to 12 feet) between
the operator and the subject, the recommended target area are the thighs of the
subject (not the center of mass). Three to twelve feet is considered the minimum
safety distance for the FN 303 less lethal launcher."

63. I am unaware how FNH developed the idea that the FN 303 is suited to be used
for cell extractions -- in the range of distances that they argue their weapon should
be used.

64. I believe that the deposition transcript of Joe Garcia supports this contention. Mr.
Garcia's whose company developed a training contract with the WCHC testified
he was first trained on this product in 2002 during the unveiling of this weapon.
Deposition p. 17. He spent few hours reviewing the FN 303 and he believed there
were individuals from FNH present. Id. at 18. Mr. Garcia testified that he was
asked his opinion on the viability of this device within the corrections community.
Id. at 18. Mr. Garcia participated in a five-day training seminar on this weapon
which he believed was conducted by FNH staff. Id. at 20.

65. Mr. Garcia testified that whatever experience he had in recommending the use of
this weapon was from practical experience because he had no formal training in
engineering. Id. at 18, 129.

3 Mr. Buie does not deny that it is FNH USA's policy "to provide technical training to federal agencies,
police agencies, sheriffs departments and correctional institutions." Mfidavit dated 8/13/2010 at ~ 7.

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 66. In my opinion, whatever training course Mr. Garcia designed for the use of the
FN 303 in correctional settings (including the course he used to train WCHC
staff) and to use it in cell extractions that training incorporated training methods
and materials that he obtained from FNH USA. Mr. Garcia, I think admitted to
this much when he said that his own FN 303 Combat Operator's Certification
Test came from: "Part of it we did the draft and part of it from what FN had at the
time as their test and so we used that as the preliminary foundation for this little
potion. Making sure that we covered all of the bases." (Mr. Garcia, page 110). Mr.
Garcia said that FNH gave him permission as an instructor to use a test and
handout from FNH. He said every instructor uses "their Power Point, their lesson
plan that they [FNH] give you." 1d. p. 110-111.

67. One of the things I find incredible regarding the use of this product in close
quarters is the lack of data to support its safety, particularly when used to shoot
people at a distance as close to 3 feet away. This was question that even Mr.
Garcia who is a self-proclaimed expert in the application of this product for cell
extractions could not answer. When he was asked at his deposition ifhe knew of
any data from any technical source (including from FNH) that suggested there
was a contraindication associated with the use of this weapon at distances of 3' he
replied "I am not aware of that, sir." 1d. at 138.

68. I reviewed the WCHC use of force diagram and policy which demonstrates that
"Less Lethal" weapons constitute a greater use of force than police canines, but
they appear only one step below "deadly force".

69. I also reviewed a policy approved by Sheriff Glodis on 10/1 0/2006 entitled
"Policy Revision -924.07 Less Lethal Launcher." The policy suggests in the
"Procedures" section that it replace the word "F.N. Herstal" and replace it with
"U.S. Corrections Special Operations Group." Before this change the policy read:
"Authorized Special Operations Group officers will be trained in the application
and proper maintenance of the FN303 prior to use and in accordance with
standards established by F.N.HERSTAL." It also states: "Officers will be
required to FN303 qualify quarterly as recommended by F.N. HERSTAL."

70. The WCHC policies discuss the use of the FN303 for "crowd control and
custodial facilities situations" but their policies never specifically discuss its use
for actual inmate cell-extractions. The WCHC policy simply does not articulate
under what circumstances it should be used.

71. This in my opinion is a flaw within the WCHC that deviates from acceptable
standard of correctional care and show deficiencies in training for this institution.

72. But the WCHC policy, without a doubt, borrows language from Herstal's
FN303's training manual. Herstal's Training Manual lays out the effective range
of firing at a subject "is from 3 to 50 feet. The FN 303 shall not be fired from
distances ofless than three (3) feet." P.2.

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73. But unlike Herstal's Tactical Manual, the WCHC policy does not require as
Herstal's suggests "Operators should fire 2 rounds and then re-evaluate the threat.
Then if needed fire more rounds." (Herstal training manual FNH 00031).

74. The policy recommends in order to prevent serious injury, the user target the
person's torso or extremities, established a preference for hitting (clothed portions
of the subjects body) to reduce bruising, cuts and abrasions to exposed skin and
that when deploying it in close combat situations (3-12 feet) it is recommended
the operator target area be the thighs of the subject (not the center of mass).

75. Because of the known risk of serious injury or death that comes with this product
the policy of the WCHC reflects the warnings from the FN303 's training manual
and warns: "The face, eyes, neck, throat, groin and spine shall not be targeted
unless lethal force is authorized per the Worcester County Sheriffs Office Use of
Force policy." Id. at 2.

76. But the WCHC policy departs substantially from the FN 303 Training Manual in
other respects. Whereas the FN 303 Training Manual states in Section 4 (First
Aid), "Manufacturer recommends that persons struck by an FN303 projectile be
transported to a medical facility for evaluation" the WCHC policy instead
provides at Section D to have the inmate have a "medical evaluation is provided
to the inmate," not at a medical facility, but rather at the jail facility.

77. I also read promotional literature from FN Herstal published on the internet in
which Herstal announced the following benefits associated with the use of this
weapon:

• Short Safety Distance: "Low risk of permanent injuries even at very short
ranges."

• Missions: "Crowd, riot controls, hostage rescue, barricaded suspects, suicide

by police, domestic violence, and "prison cell extractions."

• Projectiles: "the projectiles have been designed especially to break up on

impact, eliminating risk of penetrating injuries."

78. As I mentioned earlier, I reviewed a compilation of grievances filed by inmates

who alleged they were shot at with the FN 303 during cell extractions. The ones I
reviewed were the following inmate grievances:

79. They included the grievances of: the following inmates:

• Ryan Dean;
• William Paicopolous;
• Michael Harju;

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 • Dustin Nevin;
• Myron Vacca;
• Dennis Horton;
• Timothy Vargo;
• Theodore Klash;
• Francis Baillargeon;
• Hiram Irrizary;
• Hector Rodriguez;
• Keith Johnson;
• Wilfredo Virela;
• Ryan Dean;
• Michael A. Baez;
• Scott Gow;
• FJeffrey Leroy Figueroa;
• Raheem Childers;
• Peter Santos;
• Phillip C. Shannonhouse;

80. I also reviewed many ofthe use of force reports that corresponded to these cell-
extractions at the WCHC.

81 . I include some of my thoughts on the cell extractions. Please note that there are
more cell extractions which I have not been able to review or see and I reserve the
opportunity to supplement this affidavit once I get a chance to review them.

82. Scott Gow: I reviewed two videotapes of Mr. Gow's cell extractions. One that
occurred on 11/28/2006 -- the other one on 9/10/2007. In the first extraction Mr.
Gow was being removed from his cell for a Disciplinary board (D Board) and
because of a failure to follow orders and handcuff. Gow was locked in a single
cell. In my professional opinion locked up in his cell, Mr. Gow did not pose any
risk to himself, other inmates or to correctional staff. There is an important
question that needs to be answered here. What was the correctional objective in
using the FN 303 against Mr. Gow given that he was locked in a cell without an
ability to escape? In my opinion, I saw no correctional objective in moving Mr.
Gow from a cell that he was already confined in.

83. Mr. Gow was first pepper sprayed by the Move team but this occurred as a result
of improper training and improper correctional procedures. The Move team and
its supervisory staff did not allow it to take effect before immediately escalating
the level of force with the FN. In my opinion this breach of procedures violates
appropriate correctional standards of care as they relate to the use of force.

84. Correctional staff appears to have waited only between 35 to 45 seconds before
they began shooting at Mr. Gow. I also found it shocking that the Move team
shot at Mr. Gow even though he was simply standing with his hands up in a

13
 comer of his cell. Ifthey have wanted to move him from his cell they could have
easily moved into his cell, restrain and handcuff him by using traditional cell
extraction techniques with very little risk of injury to themselves or to Mr. Gow.

85. Another alternative within the use of force continuum would have been for the
Move team to simply allow the pepper spray an opportunity to work.
But instead of waiting for the pepper spray to take effect, the Move team
immediately began shooting at Mr. Gow approximately 20 times throughout
multiple body parts including his arms, his calf, and his forearm. Shocking to me
was the close range at which they shot at him with this powerful launcher. The
video showed blood and bruising and 5 or 6 bruises in the left arm. The use of
this powerful launcher at such close proximity violates, in my opinion, acceptable
standards of care and even the weRe policy on the use ofthis launcher. At one
point in time during the extraction and while Mr. Gow was on the ground in a
prone position with his arms under his chest, I was able to hear correctional staff
say "come on", "come on", and I also heard "more force" as one of the
correctional officers shot Gow again. When he Gow is removed his face is nearly
covered in pepper spray (Oe).

86. In my opinion, the appropriate standard of care would have required staff at the
WeRe to have waited for the pepper spray (once they made a commitment to that
use of force) to affect him and move in with a conventional cell extraction to
remove Mr. Gow with minimal risk of injury to Mr. Gow andlor to correctional
personnel.

87. Failure to do this deviated from acceptable standards of correctional care. In my

opinion the force used to extract Mr. Gow from his cell was excessive, punitive,
sadistic and served no proper correctional objective or penological purpose.

88. Mr. Gow was again extracted on September 10, 2007 by eight officers because he
refused to follow orders and to "pack up." During this extraction distraction
devices were detonated. No pepper spray was used, (a much lesser level of force
than the FN 303). In my opinion the force used to extract him from this cell was
excessive and unlawful. This time around Mr. Gow received penetrating wound
in his elbow and on his leg that ultimately required surgery at a local hospital. Re
also had bad looking bruises in his left arm, right arm and on his back. I counted
7 different impacts that showed unnecessary bruising. I also saw color pictures
that showed a penetrating wound above his left ankle in connection with his
September 2007 cell extraction.

89. Marlon Guardado was also extracted on May 20,2007 (or 5124/2007) because
he had allegedly "barricaded" himself with a mattress to protect himself from the
impacts of these shots. Guardado was ordered to come out to the floor. Staff
opened the trap and sprayed a small amount of pepper spray through the trap.
When correctional staff opened the cell they ordered Guardado to put his hands
up. Guardado complied and was dragged out of his cell coughing from the effects

14
 ofthe pepper spray. The FN 303 was not used during this extraction. He was
inspected by nursing staff and he had no injuries as a result of the incident.

90. Guardado was also per records extracted from his cell as well on February 22,
2007. The incident report prepared by Keith Hamilton states that Guardado was a
cellmate ofMr. Rodriguez. Guardado and Mr. Rodriguez had barricaded the
door with a mattress and had paper covering the window.

91. Initially correctional staff sprayed pepper spray. From there and according to a
use of force report the cell door was opened 6 inches and Hamilton fired 4 shots at
the mattress. Guardado and Rodriguez were using the mattress as a shield to
protect themselves from the shots. Because they refused, Hamilton stated that he
deployed 2 rounds and struck Guardado in the left lower leg. Hamilton then
"immediately deployed two (2) more rounds into the mattress as well as 2 rounds
to the wall in order to distract them. Hamilton deployed 2 more shots striking
Guardado on the right leg. CO Andre then fired shots over the inmates head "in
order to confuse them." Hamilton shot at Guardado 2 rounds striking him twice in
the upper right hip area. Two more rounds were deployed by Hamilton striking
Guardado in the upper left leg. Guardado apparently pulled the mattress from
Rodriguez and 4 more rounds were fired by Hamilton striking Guardado in the
right leg and one in the right elbow. Guardado was hit one more time in the left
arm.

92. At that time he was placed on six point restraints for close to four hours as per a
use of force report prepared by the WCHC. The ordered was given by Sgt.
Jeffrey Ruggieri to place him in restraints. Just as the description of injuries below
for Mr. Rodriguez nursing staff described that Guardado had "light skin bruising."

93. Guardado was extracted again on February 28,2007. As per a use of force report
Guardado was restrained in four or six point restraints for a total period of 17:30
hours. The order to restrain him was given by Daniel Keohan. Guardado was
ordered to wear a helmet. During this extraction the FN 303 was deployed and
Guardado complied with order and got prone on the ground.

94. In my opinion the absence of a video or documentation which would justifY,

explain, corroborate or refute the claims of Mr. Guardado's being kept in
restraints for that length of time violates acceptable standard of correctional care.
It is incumbent upon correctional professionals to provide care to those entrusted
to them. A failure to take reasonable steps to ensure the fair and humane
treatment of even the most violent inmates is required by the Constitution and
laws. In my opinion, the conduct involved was punitive and amounts to
deliberate indifference.

95. Franz Harris and Rodriguez' extraction. I saw a partial video tape of this
extraction from February 28, 2007. The use of force was justified by correctional
staff claiming Mr. Harris had "barricaded himself' on the floor of his cell with a

15
 mattress. A distraction device was deployed but did not go off. Here the actual
extraction was not provided to your office. Mr. Harris and another inmate were,
according to the records placed on 4 point restraint and the other on 6 point
restraint. The absence of a video of the actual extraction and transfer of these
inmates to a place where they were restrained represents a violation of the WCHC
policy regarding the documentation of every aspect of cell extractions.

96. In his grievance Mr. Rodriguez asserted that he was shot numerous times and the
he bled from his injuries and continued to have visible scars after being shot.

97. The use of force report prepared by Sgt. Ruggieri shows that Mr. Rodriguez was
placed in restraints for close to 4 hours in violation of our state laws or from
(12:20 to 16: 10). The injured prisoner report also shows as per nurse Kathleen
Moynagh's report: "Light skin bruising" (I was unable to find a nursing report).

98. Hiram Irrizary and Kenneth Carter. They were both extracted on August 1,
2007 because correctional staff could not see inside his cell because they had
covered the glass on the door with paper. Correctional staff brought a canine that
was heard barking throughout the tape. Mr. Irrizary was protecting himself from
being shot by using a mattress as a shield. Again, during this extraction,
correctional staff pepper sprayed the room through the trap but allowed very little
time before they decided to shoot through the door trap against specific advice
from USC SOG (only 30 seconds elapsed from the time they peppered sprayed to
the time they began shooting).

99. I counted a total of roughly 19 shots that were fired during this extraction. After
shooting, correctional staff came in and removed Mr. Irrizary and Mr. Carter.
Shortly after Mr. Irrizary was shot he complained "Oh my leg" repeatedly.
Irrizary was shot in the left deltoid while Mr. Carter was shot below the left ribs
and the back of the right shoulder. The impact from the FN 303 broke the skin of
Mr. 1rrizary's left shin. He also was shot in the mid thoracic area. Mr. Carter had
bad looking bruising in the left axillary area. In my opinion the force used against
Mr. Irrizary and Mr. Carter was excessive for the following reasons: the resistance
displayed was passive resistance compared to the amount of force used to achieve
compliance.

100. John Campbell. I viewed an incomplete copy of a cell extraction involving Mr.
Campbell that took place on 2120/2007 or on 2/2212007. 4 This video was
incomplete which violates the WCHC own recording policy and acceptable
standards of care for cell extractions. The only thing that can be seen is as
correctional staff breaks the cell door window with a Halligan tool. According to

4 The initial justification for the force had to do with inmates who were refusing to return their feed-in
trays, flooding the tier, blocking their window and refusing to respond to staff at A-2 as well as threatening
to slice his roommates throat if anyone came in. I also read Mr. Campbell's deposition dated March 16,
2012 in which he denied having made that threat. Page 49.

16
 the use of force report 10 shots were delivered through the trap door and Mr.
Campbell was also alleged to have been pepper sprayed. An incident report
prepared by Sgt. Giles states that the cell door was opened 6" and that he
deployed 12 rounds (the first 4 ricocheted against the cell floor and walls and he
deployed and an additional 6 rounds were deployed resulting in Campbell being
hit in the thighs and tricep area). Two additional rounds were deployed. 5 Mr.
Campbell testified in his deposition that he was holding a mattress after the
pepper sprayed his cell, that he dropped the mattress "and they were shooting me
with the gun. And I got down on the floor and they shot me a few more times.
They were trying to get my door open, I remember because the door was
jammed." Deposition at p. 37. Campbell was shot two times. Id. at 57.

101. As a result of being shot his skin was broken. Id. at 57. He was shot in the left
arm. He described the injury or scar near his elbow in the tricep area. Id. at 57.
He described being shot in two different incidents. Id. at 59.

102. I do have an opinion that the WCHC supervisory staff acted punitively towards
Mr. Campbell and were deliberately indifferent to his rights when by order of
Capt. James M. Trainor he ordered that Campbell be kept in restraints for 21 :45
hours (between 2/22/2007 (at 20:00 hours) through 2/23/2007 until 12:55 when
his restraints were finally removed). Capt. Anderson ordered that he be kept for
extended period of time on 6 point restraint "due to the inmates admitted
unwillingness to conform to orderly running of the facility his ACTIONS in
freeing himself and posing a threat to staff safety, and his AGITATED and
ARROGANT attitude it was this officers decision to have soft RESTRAINTS
replaced by mechanical restraints on his WRISTS." 6 Mr. Campbell was never
told why he was kept in restraints for that length of time. Deposition at 59.

103. Conveniently, there are no video recordings that chronicle this sadistic and
unlawful restraint against both Mr. Campbell and Mr. Harris.

104. Campbell's use of force report prepared by Lt. Darcy claims that Campbell was
only examined by medical at 20:05 (5 minutes after he was placed in restraints).
Use of force reports from the 6/21/2007 incident shows that the WCHC violated
state law by requiring Mr. Shannonhouse by order of Kevin Van Arsdel to remain
in restraints for more than 2 hours. Records show he was restrained from 19:40 to
21:45.

105. Raheem Childers. This videotape (February 27,2007), was also incomplete. A
distraction device is alleged to have been used. The lack of a video violates the
WCHC policy and acceptable standards of correctional care. You may recall that
Childers' alleged in his grievance that he was shot sometime between 2-26-2007

5 Another use of force prepared by Keith Hamilton states he fIred 7 rounds into Mr. Campbell's wall above
the cell in order to confuse him.
6 The Four point restraint orders continued to be extended by ADS Peter Whitney not only for Mr.
Campbell but for inmate Harris.

17
 and 2-28-2007. Mr. Childer's claimed "I was shot 7 times with plastic bullets
during a cell extraction. I was hit in the head 3 times in the torso including once in
my colostomy incision clreverse once on the right ankle, once one the right
forearm, Once on the right buttock after I submitted and 1ayed (sic) down. This
was excessive force that caused me injury' s & scar on my body. They did not
give me a chance to cuff up before they started shooting."

106. I was able to observe from an incomplete video, that Mr. Childer's was
cooperatively removed from his cell and taken into a room where he was asked by
staff to kneel down. Mr. Chi1der's, who appeared to have been compliant up until
that point was taken to the ground. The kneeing aspect of the use of force appears
in the video and is discussed in an incident report. This report pertains to the cell
extraction on February 21 , 2007.

107. I also reviewed another use of force report involving Mr. Childer's relative to
another cell extraction on 2128/2007 that was not accompanied by a video. The
use of force report states that Mr. Childer' s was behind a mattress, that they
ordered the cell door opened 6 inches an "FN projectiles were deployed." The
report states 8 rounds in total were fired after inmate Childer's "attempted to exit
his cell by rushing at the team." The use of force report indicates Chi1der's was hit
with four rounds on the right thigh area and four rounds in the left upper thigh
area. There are pictures to review from special services to confirm or deny if Mr.
Childer's was also hit in the head by the projectiles.

108. Mr. Childer's claimed that after a cell extraction he was strapped to a metal bed
frame and was not allowed off the bed to relieve his needs. He was forced to soil
himself. I was unable to see any video of him being restrained or logs that
document the length of his restraint. Suffice it to say that the use of force report
for the incident that Mr. Childer's was restrained from 212812007 (at 16:15) to
3/1 /2007 (at 09:00) for an incredible total of 18: 15 hours, a gross violation of
Massachusetts restraint protocols and acceptable standards of care. I have seen no
evidence from the WCHC that Mr. Childer' s was taken off restraints every 2
hours as required by state law. In my opinion, this conduct is punitive and
amounts to deliberate indifference.

109. Tim Vargo and Shannonhouse- I saw the video ofthis cell extraction dated June
21 , 2007. The reasoning given is that the inmate had "barricaded" with
mattresses and refused a staff order. I observed staff give instructions for them to
lay down on the ground. Correctional staff opened the trap and both inmates
complied. This extraction was uneventful. No one was shot during this extraction
even though 2 rounds were deployed. In my opinion the force used against Vargo
and Mr. Shannonhouse was reasonable.

18
110. Shannonhouse use of force report from 6121/2007 shows that the WCHC violated
state law by requiring Mr. Shannonhouse by order of Kevin Van Arsdel to remain
in restraints for more than 2 hours. Records show he was restrained from 19:40 to
21:45.

111. In my opinion, requiring inmates to remain in restraints without frequent

monitoring is punitive in nature and not justifiable.

112. Myron Vacca and Miguel Rivera. This videotape from June 21,2007 is also
incomplete and violates the policy that all cell extractions be recorded. The
reasoning behind the extraction was that the inmates were "barricaded" with their
mattress. 7 Before the extraction pepper spray was used through a back window.
There was about a 2 minute delay before correctional staff shot 10 rounds from
the FN 303. Orders were given to the inmate to stand up. The inmate was shot at
while prone on the ground. One of the inmates complained that he could not get
up.

113. A report prepared by CO Decoteau states that he deployed 2 rounds into the
mattress's that Rivera and Vacca were using as barricades. He claimed that he
deployed 2 more rounds which he repeated again targeting the inmates lower
extremities "with no effect." Four more rounds were deployed and apparently the
inmate began to comply.

114. Your office also showed me pictures of Mr. Vacca following this particular
shooting. I saw photographs that showed a penetrating wound around 5" below
Mr. Vacca's left knee. I read Mr. Vacca's grievance in which he stated that he
bled from his knee and the projectile penetrated his skin.

115. The use of force report also shows that this shooting authorized by (Kevin Van
Arsdel) resulted in a "One surface wound present Mid Shin area 5" diameter with
small amount of bleeding and some swelling." According to nurse Colleen
Cummings, Vacca also complained of "moderate right shoulder pain."

116. Even though Vacca had a penetrating wound, he was not taken to a hospital for
treatment based on the records that I have reviewed. According to the records he
was held for 1.5 hours in restraints. 8

117. In my professional opinion that WCHC, its agents servants and employees
deviated from acceptable standards of care in connection with the Vacca cell

7 Another reason was given Rivera's (his roommate) and Vacca's bunk had been pulled from the wall and
the cells needed to be repaired.
8 According to time records prepared by CO Andre the extractions began at 1930 hours and the following
inmates that were part of those cell extractions were kept for the following period of time in restraints:
Horton (between 1930 and 2125 hours); Vargo (between 1930 and 2130 hours); Muskatangas (between
1930 and 2145) Rivera (1930 and 2145) the same for Mr. Shannonhouse.

19
 extraction because the WCSO failed to provide medical treatment for the obvious
wound caused by the FN303 projectile.

118. Dustin Nevin and Sean Falletti. They were extracted by the Move team on
March 15, 2007 purportedly because they were kicking their cell and refusing to
handcuff. When the Move team arrived, the cell glass was covered with paper.
The Move team first sent a blast of pepper spray and then I counted that they shot
approximately 10 times into the cell. 9 This videotape, however is also incomplete
and it is "cut-off' before the move team enters the cell which once again
constitutes a violation of the jail's policy. In the grievance that I reviewed, Mr.
Nevin claimed he was shot in his leg, back and hand - and that this left painful
marks. He also claimed he was kept with a spit mask in restraints for 7 V2 to 8
hours and that no one decontaminated him from pepper spray after he was
exposed. He alleged that he requested permission to use the bathroom and was
forced to urinate on himself while on restraints.

119. But in Mr. Nevin's case as in the case of every other inmate there is no videotape
or documentation that chronicles him during the entire period of restraint.

120. Mr. Nevin was wrong about the length ofthe duration of his restraint. He was
kept in restraints for an incredible amount of 19:30 hours per the use of force
reports prepared by Lt. Giles. According to records he was in 6 point restraints.
Nevin was placed in restraints at 17:05 and was apparently examined by medical
personnel based on the records that I have reviewed at 17:35 by nurse Kathy
Butkiewicz. 10

121. Moreover, I do have an opinion that the WCHC supervisory staff acted punitively
towards Mr. Nevin and Mr.Falletti --and were deliberately indifferent to their
rights when they were ordered in six point restraints by order of Deputy Bove for
around 17 hours. 11 In my opinion, this conduct is punitive and amounts to
deliberate indifference.

122. Tyrone Dudley. Although I have not been able to review any video or DVDS's
of his cell extraction I have seen a number of photographs that purport to show
two scars on his right temple following an episode in which he was allegedly shot
with the FN 303 as part of a cell extraction. I also reviewed a picture of his right
forearm which depicts 4 large bruises in close proximity to his right elbow as well
as multiple bruises above the left elbow (4 ofthem). I reserve my right to opine
on the cell extraction of this inmate once all documents of his cell extraction are
provided.

9 The use of force report prepared by CO Mara shows he deployed 22 rounds into this cell. Falletti was
shot in his exposed buttocks. An additional officer was also fIring through a 6" opening in the door, CO.
Bristol
10 Records show that they were again seen by a nurse Joudrey at 23 :10. The restraints were re-extended by
Deputy Bove for an extension because "the inmates continued disruptive noncompliant behavior" none of
which is captured in video camera or DVD.
II The restraints were authorized by Lt. Giles a member of the move team.

20
123. Mike Harju and Kalinowski. I reviewed a video involving a January 24,2007
extraction that was ordered because inmates had barricaded themselves with their
mattress and because they were banging on their doors. A distraction device was
released. Both Hruju and Kalinowski were injured. Harju was placed on 6 point
restraint with a helmet and so did Mr. Kalinowski. One of the inmates had a welt
in his left buttock and on his right thigh. Harju had an injury in the inner aspect
of the left leg. The injured prisoner report stated that Harju suffered "bruising on
lower right leg and upper left inner thigh from FN Projectiles, whereas
Kalinowski suffered bruising on "buttocks and upper right thigh from FN
projectiles."

Conclusions:

124. On the basis of the documents reviewed, my education and training it is my

opinion that the WCHC failed to comply with acceptable standards of correctional
care by not providing an accounting of the events leading up to the use of force, a
precise description of the incident and reasons(s) for employing force, a
description of injuries and treatment given, using a disproportionate amount of
force compared to the level of resistance, not providing medical evaluation and
treatment, amounting to deliberate indifference to the civil rights of the inmates.

125. In my opinion, based on my review ofthe information provided, I did not observe
inmate behavior(s) that would constitute the amount of force deployed through
the use of the FN303.

126. In my opinion, the inmates make clear accusations that they were abused and that
their rights were violated. I have not had an opportunity to review any video that
depicts the violent nature and behaviors of the inmates which led to the use of
force. Additionally, I have not seen any logbook entries, nursing notes,
observation charts etc. which indicate that inmates were managed and cared for
after the use of force in accordance with established policy, procedures, rules and
regulations.

127. In my professional opinion, the FN303 has legitimate purpose in the correctional
setting. It would be difficult to identifY every foreseeable situation. Purposes
may include crowd control or a riot situation requiring area denial by means of
OC projectiles deployed from a distance. Situations in which other reasonable
means have been attempted or would not be appropriate such as hostage
situations, inmates armed with a shank (homemade knife) threatening serious
bodily harm to self or others.

128. In my professional opinion the use of force that I observed to extract inmates with
the FN 303 from their cells was dangerous, extraordinary, unwarranted, cruel and
exceSSIve.

21
129. The force that I saw being used in these videos failed to comply with best
practices on the use of force in correctional settings.

130. In my opinion it is alarming that they would use pepper spray and then without
allowing it to take effect, immediately deploy this dangerous weapon in close
quarters.

131. In my opinion it is unconscionable and illegal that the FN 303 appeared to have
been used as a pain compliance technique even after correctional staff had control
over some of the inmates such as Mr. Gow.

132. In my professional opinion the supervisory staff at the WCHC grossly deviated
from acceptable standards of care when they use such a dangerous weapon for
cell extractions in such close proximities.

133. The supervisors associated with these extractions are deliberately indifferent to
the rights of prisoners.

134. In my professional opinion, US C-SOG's training provided to the WCHC was

grossly negligent and deviates from acceptable standards of care in connection
with the training on the use of force. The basis for my opinion is as follows: It
appeared from the materials I was provided to review that the emphasis was on
the rapid deployment of a move team and the implementation of overpowering
force. There was no escalation of force based on resistance, no communication,
no attempts to de-escalate, no attempts at conflict resolution; in fact the emphasis
was on the intentional and specific use of pepper spray followed by the immediate
deployment of multiple rounds fired from the FN 303 .

135. In my professional opinion, FNH USA training provided to the WCHC and their
promotional literature that states the FN303 is a viable weapon to extract
prisoners from cells under regular circumstances is not only grossly negligent but
it also deviates from acceptable standards of care in connection with the training
on the use of force in correctional settings. The basis for my opinion is as follows:
The FN 303 may in fact be a reasonable alternative for the use oflethal force
when that option is inappropriate in the correctional setting; however to be used
as a means to gain volitional compliance through sheer implementation of pain is
excessive. In fact, as illustrated on the videos I observed, the FN 303 projectiles
in many cases were ineffective against inmates who were non-threatening, and
non-aggressive towards staff, yet staff continued to fire directly on the inmates as
a means to force their compliance. A more reasonable alternative and perhaps
less injurious to the inmate would be to attempt the hands-on application of
control and restraint vice firing until they comply.

136. I said it previously, and I will say it again, it is my professional opinion as a

trainer and a use of force expert that the FN 303 is a riot control weapon to be

22
 used in area denial or specifically applied to a targeted individual from distances
greater than used in this instance or those remotely suggested by the
manufacturer.

137. I reserve my right to supplement this opinion and to render a supplemental report
relative to the other cell extractions of the individuals that I have listed.

Sworn and subscribed to under the pains and penalties of peIjury this 16th day of April
2012.
~ ~'
~~/& . .
Martin K. Michelman, Sr., M.Ed., c'l-ffis, CHS-llI

23
 Martin K. Michelman, M.Ed., CHES, CHS-llI
109 Pleasant Street
Wakefield, MA 01880
617-828-9868
psdimkml@msn.com

PROFESSIONAL EXPERIENCE:

Training Coordinator/ Instructor July 2005 - Present

Homeland Security Solutions, Inc. Hampton, Virginia
Duties and responsibilities: Instruct law enforcement, security and military subject matters to government
designated personnel. Coordinate and conduct new instructor academy for staff.

Deputy Sheriff/Training SupervisorlDeputy SuperintendentlDirector of Training & Special Operations

October 1991 - June 2004
Suffolk County Sheriff's Department-Training Division Boston, Massachusetts
Duties and responsibilities: Design, develop, implement, and evaluate training programs. Report directly
to Sheriff or designee. Executive Management Team member. Document deficiencies and areas in need of
improvement. Established state-of-the-art training facility in Chelsea, MA. Saved the department
thousands of dollars annually through in-house and statewide instructor development.

ConsultantlInstructor/Statewide Coordinator October 1982- July 2005

Massachusetts Municipal Police Training Committee Weymouth, Massachusetts
Duties and responsibilities: Design, develop, implement, and evaluate training programs. Conduct
instructor development. Oversee injury and illness reporting system. Present lectures and training to
Recruit Academies as needed. Primary areas Defensive Tactics, Firearms, Officer Survival.

Visiting LecturerlInstructor October 1994 - September 2005

Salem State College Salem, Massachusetts
Duties and responsibilities: Instruct "AIl College Requirement" Course SFL194 to students. Maintain
attendance, grades, and records. Perform other duties as required.

SKILLS:

• Certified Instructor-Trainer of Firearms, Defensive Tactics, Survival Tactics, Non-Lethal Weapons, Subject
Management, CPR, First Responder, Weapons of Mass Destruction and Related Areas
• Subject Matter Expert: Firearms, Defensive Tactics, Physical Training
• Court Qualified Expert: Use of Force and Handcuffmg Techniques
• Certified Homeland Security - CHS III
• Certified Health Education Specialist
• Certified Physical Fitness Specialist and Group Exercise Leader
• Certified Aerobic Exercise Instructor and Fitness InstructorlPersonal Trainer

EDUCATION:

Springfield College, Springfield, Massachusetts

Master of Education, Health PromotionlWellness Management

Salem State College, Salem, Massachusetts

Bachelor of Science, Sports Fitness and Leisure Studies

Michelman Resume Rev. 2008

 Martin K. Michelman, M.Ed., CHES, CHS-III
109 Pleasant Street
Wakefield, MA 01880
617-828-9868
psdimkml@msn.com

Martin "Marty" Michelman

Michelman seeks to share his knowledge, training and experience with a progressive organization
interested in expanding its vision and capabilities.

Martin K. Michelman is a nationally recognized mstructor-Trainer. For more than 26 years he has
taught law enforcement topics at all levels, including recruit, in-service, specialized, advanced,
instructor and instructor-trainer.

Michelman has been involved in law enforcement and security for over twenty-eight years. During that
time he has had an opportunity to work in uniform and plainclothes, armed and unarmed as well as
undercover.

He is a charter member of the International Law Enforcement Trainer and Educators Association
(ILEETA) and is a member of over a dozen professional training and educational organizations. Martin
has personally trained evaluated and supervised hundreds of instructors statewide in the areas of
defensive tactics, physical fitness, firearms, and officer survival.

Martin has a Masters Degree in Health Promotion and Wellness Management, is a Certified Health
Education Specialist and a Certified Strength and Conditioning Specialist. He has served as a
consultant to many local, state, and federal agencies. Michelman has studied Martial Arts for more than
36 years and has earned multiple black belt rankings in Judo, Karate, and Jiu Jitsu.

Martin was a state certified EMT and taught Health & Wellness at Salem State College. Michelman is
certified through the American Red Cross, National Safety Council, American Safety & Health Institute
and American Heart Association - as a CPR, AED and First-Aid mstructor-Trainer. Michelman
regularly teaches CPR to Community Groups, Child Care Providers and Fitness Professionals.

Michelman was a Deputy Superintendent for the Suffolk County Sheriffs Department in Boston,
Massachusetts. He served as the Director of Training and Special Operations. Additionally,
Michelman served the Massachusetts Municipal Police Training Committee as Statewide Fitness and
Wellness Coordinator.

Michelman Resume Rev. 2008

 Martin K. Michelman, M.Ed., CBES, CBS-III
109 Pleasant Street
Wakefield, MA 01880
617-828-9868
psdimkm1@msn.com

EXPERIENCE
Deputy Sheriff/Training Supervisor, Deputy Superintendent/Training and Special Operations Suffolk County
Sheriff s Department, Boston, Massachusetts (1991-2004)

Training Coordinator, Massachusetts Criminal Justice Training Council, Boston, Massachusetts (1983-1991)

Chairperson, Use of Force Sub-Committee, Massachusetts Sheriffs' Association - Education and Training
Committee, Ludlow, Massachusetts (1994 -2004)

Statewide Coordinator, Fitness and Wellness, Massachusetts Municipal Police Training Committee, Reading,
Massachusetts (2000- 2005)

Security Officer, worked plainclothes, uniform, armed and unarmed positions for private security companies as
employee and/or subcontractor throughout New England (1978 - present)

Lead Firearms Instructor (alternate), Federal Flight Deck Officers Program, Lockheed Martin Training
Team/Homeland Security Corporation, Nashville, TN (2004 - Present)

Instructor, Homeland Security Course, GSAlFPS, Boston, MA (2004 - 2007)

Visiting LecturerlInstructor, Sports Fitness & Leisure Studies Department, Salem State College, Salem,
Massachusetts (1994- 2005)

Consultant, Officer Survival Awareness, Massachusetts Alcohol Beverage Control Commission, Boston,
Massachusetts (2003 - 2005)

Consultant, Officer Survival Awareness, Massachusetts Parole Board, Boston, Massachusetts (1990-2000)

Consulting Instructor, Firearms and Survival Tactics, Providence Police Academy, Providence, Rhode Island
(1983-1998)

Consultant, National Faculty Member, "Fit Force", Human Kinetics, Champaign, Illinois (1994-1998)

Instructor, Department of Athletics, Physical Education and Recreation, Massachusetts Institute of Technology,
Cambridge, Massachusetts (1992-1995)

Instructor, Division of Continuing Education, Salem State College, Salem, Massachusetts (1986-1990)

Consulting Instructor, Personal Protection, Massachusetts Civil Defense Agency, Commonwealth of

Massachusetts, Civil Defense Academy, Topsfield, Massachusetts (1984-1989)

Consultant, Firearms and Survival Tactics, Rockwood Corporation, Police Training Division, Englewood, New
Jersey (1986-1988)

Consultant, Aerobic Exercise Leadership, Aerobics and Fitness Association of America, Sherman Oaks,
California (1987-1997)

Michelman Resume Rev. 2008

 Martin K. Michelman, M.Ed., CHES, CHS-III
109 Pleasant Street
Wakefield, MA 01880
617-828-9868
psdimkm1 @msn.com

HONORS AND AWARDS

Appointed, State Director, Massachusetts, American Society of Law Enforcement Trainers, Milwaukee,
Wisconsin (1993- 2006)

Awarded, Commonwealth of Massachusetts, "Pride in Performance" Award for outstanding contribution to state
service, Boston, Massachusetts (1991)

Member, Editorial Advisory Board, Police Magazine, Carlsbad, California (1991-2000)

Appointed, Member, Massachusetts Governor's Committee on Physical Fitness and Sports, Boston,
Massachusetts (1991-1994)

Appointed, Student Affiliate, Massachusetts Governor's Committee on Physical Fitness and Sports, Boston,
Massachusetts (1989-1991)

Appointed, Search and Selection Committee, Physical Education Department, Springfield College, Springfield,
Massachusetts (1990)

Appointed, New England Regional Representative, American Society of Law Enforcement Trainers, Milwaukee,
Wisconsin (1987-1989)

Appointed, New England Regional Director, Justice System Training Association, Appleton, Wisconsin
(1985-1987)

Appointed, State Director, Rhode Island, Justice System Training Association, Appleton, Wisconsin (1984-1987)

Elected Member, Executive Board, Justice System Training Association, Appleton, Wisconsin (1985-1987)

Elected Member, Board of Directors, International Association of Law Enforcement Firearms Instructors,
Washington, D.C. (1985-1988)

Elected, Member, Board of Directors, Correctional Association of Massachusetts, Dudley, Massachusetts

(1985-1987)

Appointed, Training Director, Correctional Association of Massachusetts, Dudley, Massachusetts (1987-1988)

Appointed to a committee of the Justice System Training Association, Appleton, Wisconsin, which was
establishing national competency, based standards for Defensive Tactics Instructors. (1984-1986)

Appointed to a committee of the International Association of Law Enforcement Firearms Instructors, Washington,
D.C., which was establishing standards for training in Firearms for Law Enforcement Personnel. (1985-1988)

National Certification, Psychomotor Skill Design Instructor, Justice System Training Association, Appleton,
Wisconsin (1983)

Appointed Member, FATS Law Enforcement Advisory Board, Atlanta, Georgia (1997-2001)

Elected, Treasurer, Massachusetts Law Enforcement Firearms Instructors & Armorers Association (2000-Present)

Micbelman Resume Rev. 2008

 Martin K. Michelman, M.Ed., CHES, CHS-III
109 Pleasant Street
Wakefield, MA 01880
617-828-9868
psdimkm1@msn.com

PROFESSIONAL AFFILIATIONS

• American Safety and Health Institute

• Academy of Security Educators and Trainers
• National Safety Council
• Massachusetts Safety Council
• American College of Forensic Examiners Institute
• National Association of Safety Professionals
• National Association of EMS Educators
• International Association of Law Enforcement Firearms Instructors
• National Tactical Officers Association
• Massachusetts Law Enforcement Firearms' Instructor and Armorers' Association
• International Association of Counterterrorism and Security Professionals
• International Law Enforcement Educator and Trainers Association

Michelman Resume Rev. 2008

 Martin K. Michelman, M.Ed., CBES, CBS-III
109 Pleasant Street
Wakefield, MA 01880
617-828-9868
psdimkm1@msn.com

RELATED TRAINING
(Sample)

Supervised and/or Instructed training courses for the Suffolk County Sheriffs
Department (1991 - 2004) including but not limited to:

New Officer Orientation - Use of Force, Policies S505 and S532,

Control & Restraint, Self-Defense, Use of Baton, CPR/First Responder,
Scenario Based Role-Playing Exercises;
Basic Training Program - Drill and Ceremony, Physical Training,
Health & Wellness, Report Writing, Use of Force, Defensive Tactics,
CPR/First Responder;
In-Service - Use of Force Review, Policy Review, Report Writing,
Emergency Plans, CPR, First Responder, Firearms Qualification and
Training;
Medical Orientation - Use of Force, Reporting Procedures, SERT
Overview;
Sheriff's Emergency Response Team (SERT) - Control and
Restraint, Tactical Handcuffing, Self-Defense, Oleoresin Capsicum,
Alternative Restraints, Forced Cell Moves (FCM), Riot and Crowd
Control;
Specialized - New Shooter Training Program, Pistol Transition
Training, Transportation Procedures, Chemical Agents Training, Riot and
Crowd Control, Special Weapons Training, Voluntary Fitness Testing,
Personal Safety and Awareness, Weapons of Mass Destruction, Laws of
Arrest, Motor Vehicle Stop Tactics, Applied Patrol Procedures, Building
Entry and Room Search Techniques.

Conducted Quality Assurance/Quality Control Assessments of officers, staff and inmates

at prison during weekly/monthly inspections (2003 -2004)

Designed and developed the "Use ofForce Report Form" (1993) and "Strip Search
Documentation Form" (2001) in use today by Suffolk County Sheriff s Department and
many other agencies statewide

Conducted statewide "Training Needs Assessment" for Massachusetts Sheriffs'

Association (MSA), 1994

Conducted all Use of Force related Instructor Development and Training for the
Massachusetts Sheriffs' Association, Ludlow, MA (1994-2004)

Certified in "Critical Incident Stress Debriefing" (CISD), Massachusetts Sheriffs'

Association (MSA), Needham, MA (1996)

Michelman Resume Rev. 2008

 Martin K. Michelman, M.Ed., CHES, CHS-III
109 Pleasant Street
Wakefield, MA 01880
617-828-9868
psdimkm1@msn.com

Coordinated and conducted "Defensive Tactics Instructor Development" Workshops for

Texas Law Enforcement Personnel, Texas Department of Public Safety, Austin, TX
(1994-1996)

Trained and certified 10 Instructors and 40 Man Security Force in "Use ofOC, Use of
PR-24 Baton and Riot Control Tactics", Port-au-Prince, Haiti (1996)

Served as Judge for Northeast Massachusetts Law Enforcement Council (NEMLEC)

New England SWAT Challenge, Reading, MA (1997-1998)

Served as Consultant to the Maryland Police Corps in the area of Physical Training,
Testing, Evaluation, Development and Revision, Baltimore, MD (2001)

Coordinated and Instructed "New England Use of Force Seminar", New Hampshire
Police Standards and Training Council, Concord, NH (1997-1999)

Trained Military Police School Cadre to be Instructor-Trainers in "Management of

Aggressive Behavior" and "(OC) Oleoresin Capsicum", United States Marine Corps
(USMC) Military Police Detachment, Ft. McClellan, Anniston, AL (1998)

Trained Special Agents/Inspectors to be Instructor-Trainers in "Oleoresin Capsicum",

United States Customs Service, Washington, DC, (2000)

Trained Firearms Instructors throughout New England including courses held at New
Jersey State Police Academy and New York State Police Academy (1983 - Present)

Trained Defensive Tactics Instructors throughout New England (1983 - Present)

Trained United States Air Force (USAF) Special Police (SP) to be Instructor-Trainers in
"Defensive Tactics and Use of Baton", Hanscom Airfield and Westover Air Force Base,
MA (2002)

Attended and completed Smith & Wesson Academy "Licensed Instructor Program"
(LIP) LIP #6, Springfield, MA (2000)

Attended and completed certified "Armorer' s Course", Glock Pistol and SigArms Pistol,
MAlNH (1998/2001)

Attended and completed Instructor Certification Course, "Weapons of Mass

Destruction", Department of Justice (DOJ) and Louisiana State University, Needham,
MA (2000)

Attended "Statewide Anti-Terrorist Unified Response Network" (SATURN) Training

Course, Tewksbury, MA (2002)
Michelman Resume Rev. 2008
 Martin K. Michelman, M.Ed., CHES, CHS-III
109 Pleasant Street
Wakefield, MA 01880
617-828-9868
psdimkml @msn.com

Attended "Mental Preparation for Deadly Force Encounters", Massachusetts State Police
Academy, New Braintree, MA (2002)

Attended "Civil Disorder Resolution: Command Strategies", International Association of

Chiefs of Police (IACP), Boston, MA (2002)

Attended "Executive and Dignitary Protection Course", International Association of

Chiefs of Police (IACP), Boston, MA (2003)

Attended "Investigating Law Enforcement Use of Deadly Force", International

Association of Chiefs of Police (IACP), Boston, MA (2004)

Attended "State and Local Law Enforcement Anti-Terrorist Training" (SLATT), Lowell,
MA (2003)
Attended Executive Office of Public Safety and Massachusetts Fire Academy "Homeland
Security Conference", Westford, MA (2003)
Attended "Chemical and Biological Terrorism Seminar", MA Department of Corrections,
National Institute of Justice (ND) and Sandia Laboratories, Sturbridge, MA (2003)

Attended Massachusetts "Anti-Terrorist Task Force" (ATTF) meetings, seminars and

workshops (2001-2004)

Attended Homeland Security Guard Training (GSAlFPS), MVM, Inc., Andover? MA

(2004)

Attended continuing education courses to maintain Emergency Medical Technician

(EMT) (2002-Present)

Attended workshops, seminars and conferences throughout country regarding Physical

Fitness, Conditioning and Training (1982 - Present)

Attended Law Enforcement Instructor Development Courses held at the Eastern Missouri
Police Academy, St. Charles, MO (2005 - Present)

Attended Joint Services - Individual Non-Lethal Weapons Instructor Course (INIWIC),

Fort Leonard Wood, MO (2006)

International-Instructor in PR-24, Monadnock Expandable Baton, Monadnock Defensive

Tactics System, London, OH (1986 - Present)

Taser Master Instructor, Scottsdale, AZ (2008 - Present)

Michelman Resume Rev. 2008

 Martin K. Michelman, M.Ed., CHES, CHS-III
109 Pleasant Street
Wakefield, MA 01880
617-828-9868
psdimkml@msn.com

Lead Trainer in "Defensive Tactics I&II" and "Forced Cell Moves". LOCKUP-USA
Correctional Training Videotape Series. St. Louis, MO (1990)

Lead Trainer in "Law Enforcement Defensive Tactics and Edged Weapons Defense".
LETN (Law Enforcement Television Network). Dallas, TX (1994)

Lead Trainer in "Law Enforcement Physical Fitness, Health & Wellness", Videotape,
Performance Dimensions, Inc., Milwaukee, WI (1987)

Court Qualified Subject Matter Expert - Use of Force, Use of Handcuffing (1986)

Court Testimony Given:

Federal Court - Boston, MA (1986)
District Court - Springfield, MA (1989)
District Court - Nashua, NH (2001)

Depositions Given:
Suffolk County Sheriff s Department - 2007
New Hampshire District Court - 2001

Michelman Resume Rev. 2008