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Family of mentally ill Atascadero man accuses psychiatric unit of using excessive force

Tribune - 1/5/2019

Jan. 05--The family of an Atascadero man facing criminal charges for hitting a staffer at the county's psychiatric unit while in the midst of a mental health crisis is suing the county for damages and wants to change how the facility handles use-of-force incidents.

Joseph Perez, 33, is facing two misdemeanor counts of assault and simple battery causing great bodily injury for a November 2017 incident in which two psychiatric technicians at the county's psychiatric health facility (PHF) were allegedly injured, with one suffering a gash on his left ear lobe.

The alleged assault was the second time in three years Perez had been charged for a physical altercation at the 16-bed facility. The District Attorney's Office filed a misdemeanor battery charge against him in January 2014. It was later dismissed.

Prosecutors originally charged Perez with two felonies -- one charge alone carried a possibility of four years in state prison and a strike under California's Three Strikes law -- for the 2017 incident, but a San Luis Obispo Superior Court judge reduced those charges to misdemeanors after hearing testimony from one of the psych techs.

Despite the ongoing criminal case, Perez's attorney Trace Milan filed a lawsuit Dec. 27 seeking civil damages from the San Luis Obispo County Public Health Department after the county previously rejected an administrative claim for relief, Milan said.

The complaint seeks more than $25,000 in compensatory and punitive damages to recoup hospital and medical expenses after Perez allegedly suffered minor injuries of his own and extreme mental suffering, as well as a diagnosis of post-traumatic disorder, the complaint states.

Perez, who is diagnosed with schizophrenia, has averaged at least one major delusional crisis every few months for several years, his family told The Tribune. They say the county needs better protocols at the PHF and that people suffering a mental health crisis should not be taken to jail and charged with crimes.

"He can't be the first person to have an incident like this," Milan said by phone Friday. "As people with mental health issues continue to now come out of the shadows, this kind of stuff needs to be dealt with."

Lawsuits only represent one side of the story, and the county has yet to file a response in court.

What happened

On Nov. 16, 2017, Perez was suffering delusions and was placed at the PHF on a 72-hour involuntary hold when he began to rant about Adolf Hitler returning to kill the PHF staff.

Surveillance video provided to The Tribune by Perez's family shows him making aggressive movements around the two psych techs, who at one point pin him against a wall before releasing him.

An agitated Perez then paces up and down a hallway, shouting and getting in the face of the men before striking one on the side of his head. They immediately take Perez to the ground, where a struggle ensues for several minutes before police arrive and Perez is taken to jail.

Milan argues that the county Behavioral Health staffers escalated the situation by first pinning his client to the wall, and said that Perez slapped the technician with an open hand, though that's unclear from the video.

"He's known to struggle when people put their hands on him," Milan said Friday.

The civil complaint states that the staffers used excessive force on Perez and actually injured him when they both fell on top of him during the restraint.

"There are no rules for use of force over there at the PHF; they're kind of making it up as they go along," Milan said. "This is a medical facility, and they've signed up to deal with these people every day. They're not law enforcement."

As a result of Perez's arrest and alleged injuries, his parents have also experienced mental suffering, the complaint reads.

His mother, Lisa Kania, and her husband have criticized San Luis Obispo County's lack of psychiatric facilities in news articles since 2015, describing how they must drive Perez to hospitals or private mental health centers in other counties for treatment -- even if Joseph is in crisis the entire ride -- to keep him out of the local facility.

Kania said that if her son is convicted, he'll lose his disability and health insurance. That would leave the county psychiatric facility, the only local facility to take Medi-Cal insurance, as his only option during an emergency.

In response to questions about Perez's case, Assistant District Attorney Eric Dobroth previously said it's a delicate balance between public safety and the rights of people with mental illness, where sometimes criminal charges may be the only avenue to ensure a person gets treatment.

Dobroth said that his office has seen successful outcomes with mentally ill defendants when they and family members work with prosecutors.

Going to trial

Despite an offer for a plea agreement from the District Attorney's Office, Milan said Perez is taking his case to trial and is due back in San Luis Obispo Superior Court for a trial-setting conference Thursday.

Milan said the deal would have allowed Perez to apply to have the convictions removed from his record if he avoids contact with law enforcement for a year.

"That is a great offer, a truly great offer," Milan said. "But we don't know when his next bad day is, what the extent of that bad day will be. ... So this guarantees us nothing."

The county's treatment of mentally ill patients and inmates has been the subject of numerous administrative claims and lawsuits, and resulted in a $5 million settlement to the family of deceased inmate Andrew Holland in July 2017.

In May, the county civil Grand Jury called the PHF facility "antiquated and unsafe" and urged the county to fund upgrades to improve safety.

Milan says that, unlike at the PHF, the county's Department of Animal Services staffers are trained and able to handle aggressive animals safely without injury to either party.

"I don't see why our loved ones can't see as good of treatment as at least our stray dogs," he said.

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(c)2019 The Tribune (San Luis Obispo, Calif.)

Visit The Tribune (San Luis Obispo, Calif.) at www.sanluisobispo.com

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