33-602.210: Use of Force
PURPOSE AND EFFECT: The purpose and effect of the proposed rule is to: clarify the requirements and procedures for administration of chemical agents; clarify the requirements for investigation of use of force incidents; and correct form titles and ensure consistency between forms and rule.
SUMMARY: When chemical agents are administered to resolve situations in which the inmate is creating a disturbance in his cell, the proposed rule requires that videotaping initiated after final exposure to chemical agents shall continue until the inmate is showered, examined by medical, and returned to a secure cell. Inmate refusals to shower must also be videotaped. The proposed rule requires that in cases in which the Inspector General finds that a use of force was inappropriate, the Inspector General must conduct a complete investigation of the incident before issuing final approval or disapproval. The title of Form DC6-213 is amended to reflect that it is an ‘accountability’ log, and the form is amended to reflect the use of numbered security seals. The proposed rule and Form DC1-813 are amended to clarify the requirement that designated staff provide a written explanation in cases where the staff member is unavailable to supervise the administration of chemical agents. Form DC4-711A is amended to delete ‘affidavit’ from the title as the form is not an affidavit, and the form is amended to clarify the physician’s confirmation of his awareness that the inmate has refused treatment.
SUMMARY OF ESTIMATED REGULATORY COSTS: No Statement of Estimated Regulatory Cost was prepared.
Any person who wishes to provide information regarding a statement of estimated regulatory costs, or provide a proposal for a lower cost regulatory alternative must do so in writing within 21 days of this notice.
SPECIFIC AUTHORITY: 944.09 FS.
LAW IMPLEMENTED: 20.315, 776.07, 944.09, 944.35 FS.
IF REQUESTED WITHIN 21 DAYS OF THE DATE OF THIS NOTICE, A HEARING WILL BE SCHEDULED AND ANNOUNCED IN FAW.
THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Perri King Dale, Office of the General Counsel, Department of Corrections, 2601 Blair Stone Road, Tallahassee, Florida 32399-2500.
THE FULL TEXT OF THE PROPOSED RULE IS:
33-602.210 Use of Force.
(1) through (3) No change.
(4) Physical force shall be employed only as a last resort when it reasonably appears that other alternatives are not feasible to control the situation and will not be used solely in response to verbal abuse that does not rise to a level of a disturbance. When the use of force is justified, only that amount and type of force that reasonably appears necessary to accomplish the authorized objective shall be used. All authorized use of force incidents will be videorecorded in their entirety, except that videotaping the administration of chemical agents is not required for use on an inmate creating a disturbance in his or her cell when the officer is attempting to resolve the situation without extracting the inmate from the cell. Videotaping will be initiated after the final exposure to chemical agents and will continue from this point until the decontaminating shower is provided and the medical examination is completed and the inmate is returned to a secure cell. Should the inmate refuse the shower for decontamination purposes or the medical examination, both the staff providing the opportunity in each case and the inmate’s responses will be recorded if cell extraction or other uses of force are necessary. All spontaneous use of force incidents will be videotaped from the point the video camera operator arrives at the scene. Videotaping shall continue uninterrupted until the incident is under control, the involved inmate is escorted to medical, and the inmate is subsequently returned to secure housing. Videotaping of post use of force medical exams shall be done in such a manner as to provide the privacy needed for the exam. If it is necessary to transport the inmate to an outside facility for treatment or to another department facility for secure housing purposes, videotaping shall continue until the inmate is loaded and secured in the transport vehicle.
(5) through (9) No change.
(10) The warden or acting warden shall immediately conduct a preliminary review of the video tape(s) and all associated reports for signs of excessive force or procedural deviation. If signs of excessive force or procedural deviation are noted by the warden or assigned inspector, she or he will notify the Office of the Inspector General directly, so that there is no undue delay in initiating an investigation. The warden shall then appoint a staff member of equal or higher rank than those involved in the use of force to collect all pertinent information and required documentation. This information will include the reports of all involved staff and the statements of staff witnesses, inmate witnesses, the inmate subject, and the completed Use of Force File Checklist, Form DC1-813. All inmate statements (subject and witnesses) shall be made in writing using the Witness Statement, Form DC6-112C. Form DC6-112C is incorporated by reference in Rule 33-601.313, F.A.C. All employees who witness but do not participate in the use of force shall complete an Incident Report, Form DC6-210. Form DC6-210 is incorporated by reference in subsection (22) of this rule. This process will be completed within 5 working days (Monday through Friday). The warden shall review the information and note any inappropriate actions. The warden shall review the Use of Force File Checklist, Form DC1-813, and shall forward the videotape(s) and associated reports on the use of force and the warden’s review to the institutional inspector within five working days. Form DC1-813 is incorporated by reference in subsection (22) of this rule. The institutional inspector will ensure that all documentation is complete and will forward all materials to the Use of Force Unit within the Office of the Inspector General (OIG) within 5 working days. The OIG, following its review, will either approve the use of force action or disapprove it. If the OIG finds that the use of force was inappropriate, the OIG shall conduct a complete investigation into the incident necessary, it will be referred for investigation before final approval or disapproval. If disapproved, the OIG shall advise the warden in writing of the reason for the disapproval so that the warden can take any needed corrective action. If employee disciplinary action appears warranted, the warden shall forward the materials to the service center employee relations supervisor. Form DC6-296, Disapproved Use of Force/Disposition Report, shall be used for this purpose. Form DC6-296 is incorporated by reference in subsection (22) of this rule. The warden shall document all corrective action taken. Copies of the employee’s report, the warden’s summary and the inspector general’s review and determination shall be kept in the inmate’s file. A Use of Force Log, Form DC2-802, shall be placed in every employee’s personnel file. This form will be maintained by the servicing personnel office and shall contain a record of every report of use of force and staff supplement completed by the employee. The warden or his or her designee shall be responsible for submitting accurate information to the personnel office in order to maintain the DC2-802. Any use of force reports completed prior to April 15, 1998 shall also remain in the file. Form DC2-802, Use of Force Log, is incorporated by reference in subsection (22) of this rule.
(11) No change.
(12) Force or restraint may be used to administer medical treatment when ordered by a physician or clinical associate, and only when treatment is necessary to protect the health of other persons, as in the case of contagious and venereal diseases, or when treatment is offered in satisfaction of a duty to protect the inmate against self-inflicted injury or death. The physician or clinical associate shall prepare a report documenting the reasons that force or restraint was authorized. Form DC6-232, Authorization for Use of Force Report, shall be used for this purpose. The physician’s or clinical associate’s report shall be attached to the Institutions Report of Force Used when actual force is used, or the Incident Report, Form DC6-210, in cases when restraints are applied without the use of force as described above. In each instance a DC4-701C, Emergency Room Record, shall be completed in its entirety with applicable data, or the letters N/A used to indicate not applicable. Form DC4-708, Diagram of Injury, shall also be completed in its entirety with applicable data, or the letters N/A used to indicate not applicable. In each case, the examination shall be complete and result in a clear statement by the medical provider that there is or is not an injury, and the record shall provide sufficient documentation to support that conclusion. In all cases where physical force is used to manage an inmate, the inmate and any employee who is involved will be required to receive a medical examination or will sign a Refusal of Health Care Services Affidavit, Form DC4-711A, declining the examination. In those cases where an injury is claimed but not substantiated by medical examination, the statement by the medical provider shall indicate this, and the documentation shall be sufficient to support that no injury was found upon examination. Forms DC4-711A, DC4-701C and DC4-708 are incorporated by reference in subsection (22) of this rule. When the use of four-point or five-point psychiatric restraints is authorized and the inmate does not offer resistance to the application of the restraints, the completion of an Institutions Report of Force Used, Form DC6-230, or an Institutions Report of Force Used Staff Supplement, Form DC6-231, will not be required. In these situations, where there is no resistance to the application of psychiatric restraints, the application of the restraints will be videotaped and an Incident Report, Form DC6-210, will be completed. The videotape, the completed Incident Report, and the completed Authorization for Use of Force Report, Form DC6-232, will be forwarded to the warden or acting warden for review within one working day. The warden will forward the videotape and associated reports to the institutional inspector within five working days. The institutional inspector will ensure that all documentation is complete and will forward all materials to the Office of the Inspector General, as outlined in subsection (10) above, for review. If at any time prior to or during the application of the psychiatric restraints the inmate offers resistance to the application, the steps outlined in subsection (8) above will be followed.
(13) through (15) No change.
(16) Use of Chemical Agents.
(a) through (j) No change.
(k) Chemical agents shall be stored in the main arsenal. A small amount of chemical agents may be stored in secure locations such as the control room mini-arsenal or the officer’s station in confinement and close management units until its use is authorized. Each stored chemical agent dispenser will be numbered. The Chemical Agent Accountability Log, Form DC6-216, will be kept in all areas in which chemical agents are stored and will be utilized to record the weight of each numbered chemical agent dispenser prior to issue and again when it is returned to the secure inventory storage area. The weighing process will be conducted and a verifying entry will be made in the log, including the signature of the shift supervisor authorizing the use of the chemical agent. The chief of security shall monitor the canister weights following each use of chemical agents to ensure the amounts used are consistent with that expected by reviewing and initialing the Chemical Agent Accountability Log, Form DC6-216. Form DC6-216 is incorporated by reference in subsection (22) of this rule. Staff designated by the Secretary of the Department shall be issued one three or four ounce dispenser of OC pepper spray, with marking dye, after being properly trained in chemical agent utilization. The chemical agent dispenser shall be securely encased and attached to the officer’s belt. Each MK-4 chemical agent dispenser will be secured within a pouch by a numbered, breakable seal. Form DC6-213, Individual Chemical Agent Dispenser Accountability Log, will be utilized to document the name of the officer to whom each dispenser is assigned as well as the seal number on the dispenser she or he received. Upon receiving the dispenser and pouch, the officer will examine the safety seal to ensure that it is intact. If the seal is broken, the Shift Supervisor will be notified immediately and an Incident Report, Form DC6-210, will be written. Forms DC6-210 and DC6-213 are incorporated by reference in subsection (22) of this rule. The arsenal sergeant shall maintain a mastery inventory of all individual chemical agent dispensers complete with the weight of the dispenser at the time the original seal is attached. Whenever a dispenser is returned with a broken seal, the arsenal sergeant shall document the weight of the dispenser on the Form DC6-216 and attach a new seal.
(l) No change.
(m) Procedure for the use of chemical agents on disruptive inmates under controlled conditions:
1. through 2. No change.
3. Prior to using chemical agents, the inmate again shall be counseled with by the shift supervisor concerning his behavior.
a. through e. No change.
f. Except in cases of extreme emergency as determined by the warden or duty warden, the confinement or close management lieutenant or the shift supervisor shall counsel with, issue the final order, and be present during the administering of chemical agents. If the shift supervisor, confinement or close management lieutenant is unavailable, he the shift supervisor shall provide a written explanation as to why he was not available to supervise the administration of chemical agents.
(n) through (p) No change.
(17) through (21) No change.
(22) The following forms are hereby incorporated by reference. Copies of these forms are available from the Forms Control Administrator, Office of Research, Planning and Support Services,
(a) DC1-813, Use of Force File Checklist, effective _______ April 17, 2005.
(b) through (e) No change.
(f) DC4-711A, Refusal of Health Care Services Affidavit, effective ____________ November 7, 2004.
(g) No change.
(h) DC6-213, Individual Chemical Agent Dispenser Accountability Log, effective ____________ February 7, 2000.
(i) through (n) No change.
Specific Authority 944.09 FS. Law Implemented 20.315, 776.07, 944.09, 944.35 FS. History–New 4-8-81, Amended 10-10-83, 9-28-85, Formerly 33-3.066, Amended 3-26-86, 11-21-86, 4-21-93, 7-26-93, 11-2-94, 2-12-97, 11-8-98, Formerly 33-3.0066, Amended 10-6-99, 2-7-00, 7-25-02, 8-25-03, 2-25-04, 11-7-04, 4-17-05, 8-1-05, 3-2-06,________.