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In two cases this month, the Citizens’ Law Enforcement Review Board found sheriff’s deputies weren’t at fault for not placing a man on suicide watch, despite obvious, documented signs that both men were at risk.
In his jail booking photo, there’s a bright-red ligature mark around Robert Lubsen’s neck. The 26-year-old, who was arrested in 2013 after being caught stealing laptops from a Cal State San Marcos dormitory, had tried to hang himself in a campus holding cell before being transferred to the Vista jail.
Despite the visible ligature marks and a documented suicide attempt during a previous incarceration, jail staff didn’t flag Lubsen as a suicide risk. Instead, he was placed in a second-floor cell and, the following morning, shortly after cell doors were opened to give inmates access to a day room, he climbed onto a walkway railing, leaned over and fell headfirst to the floor 9 feet below. He died five days later after his family decided to remove him from life support.
His parents said he had struggled with drug addiction for several years.
Lubsen’s case was one of two suicides on the agenda for the March meeting of the Citizens’ Law Enforcement Review Board, an independent oversight body charged with investigating deaths at county detention facilities and allegations of abuse by sheriff’s deputies and probation officers.
In both cases, despite obvious, documented warning signs that the men were at risk, the board found sheriff’s deputies weren’t at fault for not placing either man on suicide watch. In both cases, deputies appeared to base their decision not to place the men on suicide watch simply because neither man answered “yes” to the question, “Are you suicidal?”’
In Lubsen’s case, investigators found a “lack of observable indicators … to support a Safety Cell placement” — despite the ligature marks.
Lubsen’s mom, Lorrie Lubsen, questions why the ligature marks weren’t considered an observable indicator.
“How can you overlook Rob’s booking photo and not ask about his obvious injury?” she said.
The Sheriff’s Department investigates all suspicious in-custody deaths — though it doesn’t make findings public — and even the detective assigned to Lubsen’s case noticed the ligature marks in the booking photo and provided it the medical examiner. Lubsen’s autopsy report notes “a photograph from the time of booking … demonstrated a pink-red, apparently abraded mark, consistent with a ligature mark.”
Lubsen’s suicide nearly four years ago was the second-oldest case on CLERB’s roster of open death investigations. It’s a list that grew significantly under the tenure of CLERB Executive Officer Patrick Hunter, who resigned in November. The board started 2017 with 46 open death investigations, the most in CLERB’s 25-year history.
CLERB’s interim executive officer and board chair did not respond to emailed questions.
Lubsen’s parents filed a wrongful-death lawsuit against the county in January 2014, arguing their son should have been more closely monitored. In October 2014, they agreed to settle the case for $80,000 and were promised a meeting with Sheriff Bill Gore. In the meeting, Lorrie Lubsen said, Gore described new suicide-prevention protocols that had been put in place since Lubsen’s death. Lorrie Lubsen said the sheriff admitted that “things were missed” when Robert was booked into jail.
“They explained what they were doing to change treatment in the jails and how they evaluate an inmate more thoroughly,” she said.
If that were the case, Lubsen’s death should have prevented one like Jason Nishimoto’s. Nishimoto hung himself in the Vista jail in September 2015. His case was also closed this month by CLERB. The board’s investigators found no evidence of wrongdoing by sheriff’s deputies, despite obvious signs that Nishimoto, who’d been diagnosed with schizophrenia and had a history of suicide attempts, intended to harm himself.
On Sept. 24, 2015, while staying at his mother’s house, Nishimoto swallowed a bottle of the tranquilizer Klonopin, and tried to leave in his car. When his brother, Adrian Nishimoto, tried to stop him, Jason threatened him with a shovel. Adrian called 911.
Adrian said he told the dispatcher about the Klonopin and his brother’s history. When deputies arrived, Adrian Nishimoto said, he and and his mother, Rochelle Nishimoto, told them about Jason’s history of suicide attempts. Jason Nishimoto was arrested for threatening his brother.
Nishimoto’s autopsy report notes that at the time of his arrest, he “made suicidal statements and stated he had consumed a large amount of pills.” He was taken to the Tri-City Medical Center emergency room — where he’d been taken for a previous suicide attempt. His family doesn’t know how long he was held there before being cleared to be booked into jail. At the jail, he was placed in solitary confinement.
A summary of CLERB’s investigation of Nishimoto’s suicide notes that during the booking process, he responded “no” when asked if he was suicidal.
CLERB Chairwoman Sandra Arkin said via email that she would not discuss the specifics of either investigation.
“But CLERB is very comfortable that our staff follows appropriate investigative protocols,” she said. “They are trained to conduct thorough and accurate investigations prior to making recommendations to CLERB.”
Lindsay Hayes, project director at the National Center on Institutions & Alternatives and an expert on suicide in jails and prisons, said via email that Lubsen and Nishimoto are typical examples of why jail staff shouldn’t rely solely on inmate self-reporting and should consider other risk factors, such as a history of suicide attempts, to determine whether closer observation is necessary.
“If an inmate’s simple denial that they were suicidal was the only criteria utilized to assess suicide risk, then it would be unnecessary to ask any other questions during the intake screening process, nor would we need a mental health clinician to make an assessment because any staff member could listen to an inmate deny they were suicidal and assume they were not,” he said.
Last August, Nishimoto’s family filed a wrongful death lawsuit against the Sheriff’s Department. The county sought to have the case dismissed, but in October, a federal judge ruled there was enough evidence for the case to proceed.
Danielle Pena, one of the attorneys representing the Nishimotos, spoke during the public comment portion of CLERB’s March 12 meeting. She asked the board why the case summary suggests CLERB investigators interviewed Rochelle and Adrian Nishimoto and why it downplays Jason Nishimoto ingesting a large amount of Klonopin. “Per family members and the decedent,” the summary says, “he took the medication as a sleep aid and not in a suicidal attempt.”
If Rochelle and Adrian Nishimoto had been contacted by CLERB investigators — they weren’t — they “would never have made that representation,” Pena said. She said Rochelle had called the jail and spoken to a nurse about her son’s history of suicide attempts.
CLERB’s policy is to not respond to public comment, though comments can be a basis for re-opening a case. Pena’s comments, however, didn’t make a difference, and CLERB voted to uphold its finding that jail staff “classified, housed, monitored and supervised [Jason Nishimoto’s] activities according to Department policies and procedures, and the evidence showed that the actions of the deputies were lawful, justified and proper.”