Federal court sanctions Sonoma County Sheriff for allowing destruction of footage of 2019 jail suicide

A federal judge has sanctioned Sonoma County and the Sheriff’s Office after determining that jail officials deliberately failed to preserve critical footage of the 2019 in-custody suicide of Nino Bosco.

The sanctions mean the county’s actions will be detailed to a jury during trial as a lawsuit against the county proceeds.

The 21-page court order was issued by Judge Charles R. Breyer of the U.S. District Court for the California Northern District on Nov. 14.

It states that sheriff’s officers allowed footage to be lost and that jury members will be instructed to presume county officials did this with intent and that the footage was unfavorable to the county.

Sheriff’s spokeswoman Misti Wood said the failure to preserve the critical 14 minutes of footage was not intentional.

“The loss of the video footage was unfortunate, but not deliberate,” she told The Press Democrat. “We took extraordinary measures to try to recover it, but were unable to do so. We’ve since updated our procedures to add additional safeguards for the preservation and review of video going forward.”

Court Order.pdf

Bosco, a 30-year-old Petaluma man, was found unresponsive in his booking cell on July 17, 2019, after forcing a bologna sandwich down his windpipe just hours after he made a similar attempt to asphyxiate himself.

In October 2021, Bosco’s mother Frauka Kozar, represented by Sebastopol lawyer Izaak Schwaiger, filed a motion to sanction the county and Sheriff’s Office for failing to provide the complete surveillance video after Schwaiger noticed a 14-minute gap in the surveillance footage of Bosco’s in-custody death.

The gap would have shown when guards and medical staff found Bosco unresponsive in a “safety cell,” and his subsequent removal from his cell.

He had been booked for violating a restraining order and had told jail authorities that he was bipolar, schizophrenic and suicidal.

After Bosco died, the Sheriff’s Office conducted a criminal investigation into the death, which is a common procedure for in-custody suicides.

Sheriff’s Sgt. Ryan Mitchell, the lead detective assigned to the investigation, reportedly requested all available footage from the time Bosco arrived at the jail until he left in an ambulance, according to court documents.

Jail officials contended they had problems exporting the files onto thumb drives because of their size. They said they were finally able to export them onto a new drive without any error messages, according to documents. They then handed that drive over without reviewing the files on it in their entirety.

Mitchell received all the flash drives and memory cards and said he watched them and believed they were complete.

His investigation found “no violations” and was subsequently approved by three captains, Assistant Sheriff Al Vernon, and Sheriff Mark Essick, according to the court findings.

Assistant Sheriff Eddie Engram, who has overseen the jail since Vernon left in mid-2020 and is due to replace the retiring Essick in January, was not named in the court filing.

When Schwaiger inquired about the missing footage in September 2021, he was told by the county’s attorney that he’d received “all available video related to the Bosco incident.”

Deputy County Counsel Mathew Lilligren did not immediately respond to a Press Democrat request for comment Monday afternoon.

Sheriff’s Lt. Bryan Cleek, who oversaw maintenance of video surveillance at the jail, said that when he became aware of the missing 14 minutes of video surveillance, he looked into whether there was any possibility of recovering the missing footage.

Because two years had passed since Bosco’s death and because the system automatically deletes files after one year and one day, the footage had been overwritten and deleted.

The county said the missing footage was deleted due to a “technical error” and that reasonable steps were taken to recover it, according to the court documents.

But Breyer ruled that jail officials were negligent because they failed to report the error messages when exporting the flash drive and that it was “unreasonable” for Mitchell not to notice the missing footage of the staff removing Bosco from his cell, which would have been critical to the investigation.

Breyer ruled that the county’s failure to preserve the footage deprives Bosco’s family of critical evidence they could have used in a trial to prove the jail and medical staff acted with “deliberate indifference.”

The sanction orders that a jury be instructed that the missing video was “spoiled” by the county and they are to presume the footage was unfavorable to the county. The legal definition of spoliation is “the destruction or significant alteration of evidence, or the failure to preserve property for another’s use as evidence in pending or reasonably foreseeable litigation.”

Additionally, Bosco’s mother will be repaid for attorney’s fees incurred while working on the motion.

“It’s almost incomprehensible that you had so many levels of failure,” Schwaiger said. “They didn’t care about him when he was alive and they didn’t care about him when he was dead.”

He added that when there’s no way for the public to see what goes on in jail, “without leadership and oversight, that can deteriorate into a real horrible cesspool of bad behavior.

“Nino's death didn't have to happen ― it was totally preventable,” he said. “But when you have very few measures in place to make sure that we have visibility, accountability, transparency, all that stuff, and then the evidence gets taken up and thrown in the garbage, what's left to presume? You have to do what the judge did here and presume it was done intentionally, so that we wouldn't ever know.”

Schwaiger said the case has been difficult for Bosco’s mother.

“Of everything here, she just wanted to know, she wanted answers,” he said. “I mean, you get a phone call and your son is dead, and then to have to leave it in the hands of people like this to do an investigation of themselves, destroy the evidence and conclude they did nothing wrong ― that doesn't give you answers.”

You can reach Staff Writer Alana Minkler at 707-526-8511 or alana.minkler@pressdemocrat.com. On Twitter @alana_minkler.