33-602.210: Use of Force
PURPOSE AND EFFECT: The purpose and effect of the proposed rule is to: clarify the scope of the rule; specify the type of information that should be stated on camera after a spontaneous use of force; specify the circumstances under which electronic immobilization devices may or may not be used; clarify the circumstances under which chemical agents may be used; outline the procedures that should be followed after the use of chemical agents; and add storage, issuance, and safety provisions.
SUBJECT AREA TO BE ADDRESSED: Use of Force.
SPECIFIC AUTHORITY: 944.09 FS.
LAW IMPLEMENTED: 776.07, 944.09, 944.35 FS.
IF REQUESTED IN WRITING AND NOT DEEMED UNNECESSARY BY THE AGENCY HEAD, A RULE DEVELOPMENT WORKSHOP WILL BE NOTICED IN THE NEXT AVAILABLE FLORIDA ADMINISTRATIVE WEEKLY.
THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE DEVELOPMENT AND A COPY OF THE PRELIMINARY DRAFT, IF AVAILABLE, IS: Kendra Lee Jowers, 2601 Blair Stone Road, Tallahassee, Florida 32399-2500
THE PRELIMINARY TEXT OF THE PROPOSED RULE DEVELOPMENT IS:
33-602.210 Use of Force.
(1) Except as otherwise provided by law or Department rules, employees are prohibited from using force on anyone other than an inmate, or in any manner not expressly authorized herein.
(2)(1) Non-deadly Force. This subsection applies only to non-deadly levels of force; use of deadly force is addressed in subsections (2) and (3). In accordance with Section 944.35, F.S., employees are authorized to apply physical force only when and to the degree that it reasonably appears necessary in order to:
(a) To Ddefend himself or another against an inmate using unlawful force;
(b) To Pprevent the escape from a state correctional institution or facility of an inmate or aid in the recapture of an escaped inmate;
(c) To Pprevent the escape of an inmate during transporting or while outside a correctional institution or facility;
(d) To Pprevent damage to property;
(e) To Qquell a disturbance;
(f) To Oovercome an inmate’s physical resistance to a lawful command;
(g) To Pprevent an inmate from inflicting further injury to himself (suicide attempt); or
(h) To Rrestrain the inmate when ordered to allow medical treatment in accordance with the provisions of subsection (12) of this rule.
(3)(2) Use of Deadly Force – For the purposes of this rule, deadly force refers to force that is likely to cause death or great bodily harm. A correctional officer is authorized to use deadly force only when the officer believes that such force is necessary to prevent imminent death or great bodily harm to himself or another.
(4)(3) Use of Deadly Force to Prevent Escape or to Recapture Escapee. Generally, correctional officers are authorized to use force, including deadly force, as necessary to prevent the escape of an inmate from a penal institution.
(a) Escape attempts from inside an institutional perimeter where armed perimeter staff are assigned:
1. In institutions that have a double fence, where time permits, a verbal warning to halt shall be given before the inmate touches the inner fence. Time permitting, a warning shot shall then be fired before the inmate begins to pass over, through or under the inner fence. The firearm shall not be fired at the inmate until he has begun to pass over, through or under the inner fence.
2. In institutions that have a single fence, and time permitting, a verbal warning will be given to halt and a warning shot will be fired before the inmate reaches the perimeter fence. The firearm shall not be fired at the inmate until he has begun to pass over, through or under the fence.
3. Warning shots are only authorized as provided in subparagraphs (3)(a)1. and 2. above. In all other instances where deadly force is authorized during inmate escape attempts, a verbal warning shall be issued if time and circumstances permit.
(b) Apprehension of escaped inmates once they are outside an institutional perimeter.
1. Correctional officers are considered to be in active pursuit of an inmate who has escaped from an institution or supervised work squad so long as the escape commander determines that the escape recovery efforts are active. When the inmate has refused a verbal order to stop, the correctional officer is authorized to use deadly force to stop the inmate, once the officer has clearly identified the individual as the escaped inmate and is sure of the target and what lies beyond.
2. Once the escape commander determines that immediate recapture efforts are over, recapture becomes a law enforcement agency function and department staff only provide assistance to local law enforcement. Correctional officers who are utilized to assist outside law enforcement agencies are authorized to use deadly force only in self defense or to defend others against deadly use of force.
3. When an inmate fails to return from a furlough or non-supervised outside assignment or escapes from a department work release center or a contract work release center, recapture is a law enforcement agency function and department staff only provide assistance to local law enforcement. Correctional officers who are utilized to assist outside law enforcement agencies are authorized to use deadly force only in self defense or to defend others against deadly use of force.
(c) Escape attempts by inmates while being transported or escorted outside institutional perimeters, e.g., court appearances, hearings and medical visits, or while being supervised while in a hospital for treatment. Deadly force is only authorized in accordance with paragraph (1)(c), when the officers are in immediate active pursuit of the escapee. The escape commander will determine when the period of active pursuit has ended. At this point, involvement by correctional officers will be limited to assisting law enforcement officers and deadly force is only authorized for self defense or to defend others against deadly use of force.
(5)(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. Utilization of the custodial touch, with the hand firmly grasped around the inmate’s tricep or elbow, during internal transport of restrained inmates shall not be considered a use of force when the transport hold is for the safety of the inmate and resistance is not met.
(a) All authorized use of force incidents will be video recorded.
(b)1. The administration of chemical agents 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 will also be video recorded. The video recording will include: a specific introductory statement, including the date and time, the names and ranks of the supervisor present and the camera operator, and the name and DC number of the inmate; the attempts to resolve the situation without the use of chemical agents; the final order by the supervisor; an advisement to the inmate that chemical agents will be administered if he or she continues the disruptive behavior; an additional advisement to the inmate that this warning will not be repeated prior to the application of chemical agents should he or she become disruptive again after the supervisor, camera and camera operator have left the area; and any response made by the inmate. The video recording will also include the actual application of chemical agents, the offer of a decontaminating shower and medical examination, and the inmate’s return to a secure, decontaminated cell. Should the inmate refuse the shower for decontamination purposes or refuse the medical examination, both the staff providing the opportunity in each case and the inmate’s responses will be recorded.
2. If, during the same shift, the inmate should cease the conduct creating the disturbance while the supervisor, camera and camera operator are present, but resume such conduct after the supervisor, camera and camera operator have left the area, videotaping of the actual application of the chemical agents is not required. The department will defer to the judgment of the supervisor as to whether the reintroduction of the camera and operator at the scene of the disruptive conduct to videotape the actual application of the chemical agents will be counterproductive to his or her efforts to regain control of the situation. If the determination is made to return the camera and operator to the scene, the warning that chemical agents will be administered if he or she continues the disruptive behavior and application of the chemical agents will be recorded. If the determination is made not to videotape the actual application of the chemical agents, the original video recording will resume following the final exposure to chemical agents, include a statement referring to the originating incident, and continue from this point until the decontaminating shower and medical examination are offered and the inmate is returned to secure, decontaminated housing.
3. If a different supervisor takes command of the incident due to shift change or other circumstances in which there is a staff change, a new video recording will be initiated and the requirements in subparagraph 1. and 2. above will be repeated.
(c) 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. At the conclusion of the recording of such incidents, the shift supervisor or designee shall provide an on-camera statement including as much of the following information as is available at the time:
1. Date and time;
2. His or her name and rank;
3. The name and rank of the camera operator;
4. The inmate’s name and DC number;
5. A brief summary of the events leading up to the use of force;
6. The names and ranks of all involved staff members.
(d) 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.
(6)(5) There shall be no corporal punishment of any kind. Handcuffs, leg irons and other such devices shall be used only for restraint, and not for punishment.
(7)(6) The provisions of this rule shall be incorporated into the Department of Corrections’ use of force training curriculum.
(8)(7) The warden or, in his absence, the duty warden will be consulted and give her or his permission prior to use of physical force. In spontaneous use of force incidents when circumstances do not permit prior approval, the warden or, in his absence, the duty warden will be notified immediately following any use of force incident. Whenever force is authorized, the employee who was responsible for making the decision to use force pursuant to subsection (1) shall prepare, date and sign Form DC6-232, Authorization for Use of Force Report, either during, or immediately after, the tour of duty when force was used. If the authorization for force is given after normal working hours, the person authorizing the force shall complete and sign Form DC6-232 within one working day (Monday through Friday) following the incident. Form DC6-232 is incorporated by reference in subsection (22) of this rule.
(9)(8) Whenever force is used the employee initially using force shall complete Form DC6-230, Institutions Report of Force Used, the completed form shall include a detailed written report of force used. If more than one employee was involved in the initial use of force, the highest ranking official involved or the most senior employee shall complete the report. Each additional employee involved in the use of force who agrees with the facts and circumstances as reported on Form DC6-230 Section I shall prepare Form DC6-231, Institutions Report of Force Used Staff Supplement. The report shall describe in detail the type and amount of force used by him or her. Each employee shall individually write his or her own report, then submit the completed report to the clerical personnel designated by the warden to type all the reports onto one form to be signed by each employee. Any additional employee who does not agree with the facts and circumstances as reported in Form DC6-230 Section I shall prepare a separate Form DC6-230, Institutions Report of Force Used. Forms DC6-230 and DC6-231 are incorporated by reference in subsection (22) of this rule.
(10)(9) The Authorization for Use of Force Report and the Institutions Report of Force Used shall be completed by those staff involved either during or immediately after the tour of duty when force was used. If an emergency arises, the warden may authorize the employee to complete the reports immediately upon his return on the next calendar day. Barring such an emergency, all reports must be typed and submitted to the warden or acting warden within 1 working day (Monday through Friday) following the incident.
(11)(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 Form DC1-813, Use of Force File Checklist. Form DC1-813 is incorporated by reference in subsection (22) of this rule. All inmate statements (subject and witnesses) shall be made in writing using Form DC6-112C, Witness Statement. 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, Form DC6-210, Incident Report. 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 Form DC1-813, Use of Force File Checklist, 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. 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 Use of Force Unit within the OIG, following its review, will either approve the use of force action or disapprove it. If the Use of Force Unit finds that the use of force was appropriate, the OIG’s written determination of the appropriateness of the force used and the reasons therefor, shall be forwarded to the circuit administrator or warden upon completion of the review. If the Use of Force Unit finds that the use of force was inappropriate, the OIG shall conduct a complete investigation into the incident and forward the findings of fact to the appropriate regional director. The OIG shall also 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 prepare Form DC6-296, Disapproved Use of Force/Disposition Report, and forward the materials to the service center employee relations supervisor. 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. Form DC2-802, Use of Force Log, 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 designee shall be responsible for submitting accurate information to the personnel office in order to maintain Form DC2-802. Any use of force reports completed prior to April 15, 1998 shall remain in the file. Form DC2-802 is incorporated by reference in subsection (22) of this rule.
(12)(11) Any employee who witnesses, or has reasonable cause to suspect, that an inmate has been unlawfully abused shall immediately prepare, date and sign Form DC6-210, Incident Report, pursuant to Section 944.35(3)(d), F.S., specifically describing the nature of the force used, the location and time of the incident and the persons involved. The report shall be delivered to the inspector general of the department with a copy delivered to the warden of the institution. The inspector general shall conduct an appropriate investigation and, if probable cause exists that a crime has been committed, notify the state attorney in the circuit in which the institution is located.
(13)(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 Form DC6-232, Authorization for Use of Force Report, documenting the reasons that force or restraint was authorized. The physician’s or clinical associate’s report shall be attached to Form DC6-230, Institutions Report of Force Used, when actual force is used, or Form DC6-210, Incident Report, 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 Form DC4-711A, Refusal of Health Care Services, 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 Form DC6-230, Institutions Report of Force Used, or Form DC6-231, Institutions Report of Force Used Staff Supplement, 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 Form DC6-210, Incident Report, will be completed. The videotape, the completed Incident Report, and the completed Form DC6-232, Authorization for Use of Force Report, 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.
(14)(13) The use of electronic immobilization devices (EIDs), batons, chemical agents, or specialty impact munitions within institutions shall be authorized only by the warden, or duty warden if the warden is not available. Batons shall be used only by trained baton squad members to disarm an inmate or during situations in which the squad has been activated to quell a disturbance. The decision to use chemical agents, specialty impact munitions, or authorized EIDs electronic immobilization devices shall be based on which level of force is most likely to resolve the situation with the least amount of injury to all parties involved. Hands-on physical force shall be avoided if injury is less likely to occur by using chemical agents, specialty impact munitions, or EIDs electronic immobilization devices.
(15)(14) Batons, chemical agents, EIDs electronic immobilization devices, and specialty impact munitions shall not be used on inmates who are assigned to inpatient mental health care in an infirmary, transitional care unit, crisis stabilization unit, corrections mental health institution, or other mental health treatment facility, except when it appears reasonably necessary to:
(a) Prevent an inmate or inmates from taking control of the health unit, or to subdue a take-over of the health unit.
(b) Prevent an inmate or inmates from taking a hostage or to help free a hostage.
(c) Prevent an inmate or inmates from escaping.
(d) Stop an assault on staff or other inmates when other means of intervention are likely to be ineffective or pose a risk of injury to the intervening staff.
(16)(15) Use of EIDs electronic immobilization devices. EIDs shall not be used on anyone other than an inmate during an authorized use of force.
(a) EIDs Electronic immobilization devices authorized by the department include:
1. Handheld EIDs Ultron II or Nova Sprit handheld, which shall be the intermediate level of force alternative, issued primarily for the purpose of transportation and supervision of inmates outside the institution;
2. Electronic Ultron electronic shields, which shall be primarily used by force cell extraction teams; and
3. Electronic restraint belts, which are is authorized for use for inmate court appearances and other transports of high profile or high-risk inmates.
(b) EIDs Electronic immobilization devices shall only be used by officers who have successfully completed the Department of Corrections’ authorized training for these devices.
(c) EIDs shall be used only in the following circumstances:
1. After all reasonable efforts and lesser levels of force, especially verbalization, have been exhausted;
2. To prevent any unauthorized individual from taking possession of an officer’s firearm;
3. To prevent an inmate from physically harming himself or others;
4. To prevent an inmate from escaping;
5. To prevent an inmate from taking a hostage or to help free a hostage;
6. In cell extractions, when it is determined that less injury will result than if other force alternatives are utilized; and
7. To gain control of an inmate so that the appropriate restraint devices can be applied.
(d)(c) EIDs Electronic immobilization devices shall be used in accordance with the manufacturer’s specifications and limitations, and will not be:
1.Used to punish any inmate;
2. Employed into any large metal object;
3. Used in the presence of combustible materials;
4. Used if the officer’s hand, the unit, or the inmate is wet;
5. Used on a female inmate who is known to be pregnant;
6. Applied to the head, genitals, female breasts (handheld unit), open wounds or stitches;
7. Used on people with known neuromuscular diseases;
8. Used on an inmate who is less than 80 pounds in weight (electronic shield);
9. Used against an inmate brandishing a handgun, firearm, or knife, except in life-threatening situations;
10. Used to threaten or gain information from an inmate;
11. Used on an inmate unless physical resistance has to be overcome;
12. Used to wake up a suspected intoxicated individual; or
13. Used as a prod.
(e)(d) If possible, the shift supervisor shall counsel with the inmate, issue the final order, and be present when EIDs electronic immobilization devices are used at the institution or facility.
(f)(e) When in a close management or confinement setting, prior to utilizing EIDs electronic immobilization devices, the officer shall review Form DC4-650B, Risk Assessment for the Use of Chemical Restraint Agents and Electronic Immobilization Devices, to determine whether the inmate has a medical condition which may be exacerbated by use of EIDs electronic immobilization devices. If no form is available, and where time and circumstances permit, medical staff shall be consulted to determine if the inmate has any medical condition that would make the use of an EID electronic immobilization device dangerous to that inmate’s health. Form DC4-650B is incorporated by reference in subsection (22) of this rule.
(g)(f) Handheld EIDs electronic immobilization devices shall be issued to the unarmed officers on any inmate transport where firearms are issued, or on any outside hospital assignment where firearms are issued. The chief of security, or in his absence, the shift supervisor, shall determine the number of officers who will be issued firearms and EIDs electronic immobilization devices during such trips.
(h)(g) As soon as possible following each use of an EID, electronic immobilization device the inmate shall be afforded medical examination and treatment. Medical staff shall, upon completing the medical examination, make a mental health referral for each inmate who is classified S-2 or S-3 on the health profile. The referral shall be made by completing Form DC4-529, Staff Request/Referral, and sending it to mental health staff. Form DC4-529 is incorporated by reference in subsection (22) of this rule. Mental health staff shall evaluate the inmate not later than the next working day to determine whether a higher level of mental health care (isolation management, transitional, or crisis stabilization) is indicated. For the purposes of this rule, the following definitions shall apply:
1. S-2 is the mental health classification denoting mild impairment in the ability to meet the ordinary demands of living within general inmate housing (which includes segregation), which impairment is associated with an Axis I disorder (excluding substance use disorders) or symptoms thereof, schizotypal personality disorder, borderline personality disorder, or mental retardation. The impairment in functioning is not so severe as to prevent satisfactory adjustment in general inmate housing, with provision of mental health services.
2. S-3 is the mental health classification denoting moderate impairment in the ability to meet the ordinary demands of living within general inmate housing, due to the presence of an Axis I disorder (excluding substance abuse disorders), borderline personality disorder, or schizotypal personality disorder. The impairment in functioning is not so severe as to prevent satisfactory adjustment in general inmate housing with provision of mental health services. Clinical management of the disorder may require at least periodic administration of psychotropic medication, of which the inmate may exercise his or her right to refuse.
(i)(h) In any case where EIDs electronic immobilization devices are used, Form DC6-230, Institutions Report of Force Used, shall be prepared and shall include:
1. What precipitated the use of the device; and
2. To what extent it was used and what results were derived from its use.
(j)(i) EIDs Electronic immobilization devices shall be stored and maintained in either the main arsenal or the control room mini-arsenal. The warden may authorize, in writing, the storage of one handheld unit and one shield in the confinement unit or close management unit. These devices shall be kept secured in a locked cabinet when not in use. The arsenal sergeant will be responsible for the proper documentation of the maintenance, storage, and issue of EIDs.
(k)(j) All EIDs electronic immobilization devices shall be accounted for in the same manner as firearms.
(l)(k) There shall be no attempt to alter, tamper with, or repair any EID electronic immobilization device. If a unit malfunctions or needs repair, it shall be sent to an authorized repair station. If a unit requires attention, it shall not be issued until repaired. If a unit any electronic immobilization device is dropped or knocked out of the hand, it shall be immediately tested to determine if it is damaged or is operating properly. Repair will be conducted by authorized repair sources only.
(m)(l) EIDs Electronic immobilization devices shall not be utilized after the application of any chemical agents.
(17)(16) Use of Chemical Agents. Chemical agents shall not be used on anyone other than an inmate during an authorized use of force.
(a) The following chemical agents are authorized for use by the department:
1. OC – Oleoresin Capsicum (pepper spray) – An inflammatory agent that causes tearing and involuntary closing of the eyes, nasal discharge, sneezing, disorientation, and the sensation of respiratory distress.
a. OC is the primary chemical agent to be used for cell extractions and other in-cell, individual, use, unless circumstances exist as outlined in subparagraph 2. below.
b. OC shall be used only in the manner prescribed in department rules and procedures, consistent with manufacturer directions.
c. OC shall not be used in conjunction with any EID electronic immobilization device.
2. CS – Orthochlorbenzal Malononitrile or Orthochlorobenzylidene Malononitrile – An irritant agent that causes eyes to burn and tear, nasal discharge, and skin and upper respiratory irritation.
a. CS shall be used for cell extractions and other in-cell, individual, use only when OC is ineffective and efforts to talk the inmate into cooperating have failed.
b. When documentation is available, e.g., Form DC6-230, Institutions Report of Force Used, to substantiate that the use of OC has in the past proven ineffective in controlling a specific inmate, the warden or duty warden has the option to authorize the use of CS as the initial/primary chemical agent.
c. CS is additionally authorized as the initial/primary chemical agent during in-cell applications in which the inmate has covered his person or fabricated a barrier in an effort to prevent direct contact with the chemical agent.
d. When CS is used as the initial/primary chemical agent the justification shall be listed in Section I of Form DC6-230, Institutions Report of Force Used.
e. CS shall be used only in the manner prescribed in department rules and procedures, consistent with manufacturer directions.
f. CS shall not be used in conjunction with any EID electronic immobilization device.
3. CN – Cloroacetophene – An lacrimator agent that causes tearing of the eyes, nasal discharge, and skin and upper respiratory irritation.
a. CN projectiles, grenades and thermal foggers shall only be used for institutional disturbances and crowd control.
b. CN shall be authorized for use as set forth in sub-subparagraph a. above only until the expiration date of current stores, at which time CN is no longer authorized for use.
c. CN shall not be used in conjunction with any EID electronic immobilization device.
(b) Chemical agents, OC, CN or CS, shall be used only after all other reasonable efforts to control a disorderly inmate or group of inmates have been exhausted. All chemical agents shall be used with caution.
(c) In controlled situations when time constraints are not an issue, chemical agents can only be used if authorized by the warden or, in his or her absence, the duty warden. Additionally, in accordance with paragraph (k) below, certified correctional staff will be pre-authorized to administer chemical agents in instances where chemical agents must be used for intervention in self-defense, i.e., when the officer believes that he or she is in imminent threat of bodily harm or that the use of chemical agents will prevent injury to other staff, visitors, volunteers or inmates.
(d) Except in cases of emergency, as determined by the warden or duty warden, chemical agents shall be employed only by persons trained in their use.
(e) Chemical agents shall never be used to punish an inmate.
(f) No inmate shall be removed from his assigned cell and placed into another cell for the purpose of administering chemical agents.
(g) No inmate shall be handcuffed solely for the purpose of administering chemical agents. If chemical agents are administered to a handcuffed inmate, an explanation as to why the removal of the handcuffs was not feasible shall be included in Section I of Form DC6-230, Institutions Report of Force Used.
(h) No inmate shall be stripped of his clothing or comfort items for the explicit purpose of administering chemical agents.
(i) Chemical agents shall only be used when a use of force is necessary and when this level of force is the least likely to cause injuries to staff or inmates.
(j) All chemical agents shall be used with caution and in accordance with the manufacturer’s instructions. The Material Safety Data Sheet (MSDS) for chemical agents shall be kept where chemical agents are located.
(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. Form DC6-216, Chemical Agent Accountability Log, 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 Form DC6-216. Form DC6-216 is incorporated by reference in subsection (22) of this rule.
(1) Issuance of chemical agents.
1. Certified officers assigned to major institutions and work camps are designated by the Secretary of the Department as required to carry chemical agents and shall be issued one three or four ounce dispenser of OC pepper spray after being properly trained in chemical agent utilization. These officers are authorized to administer chemical agents in spontaneous circumstances without additional authorization for intervention in self-defense, i.e., when the officer believes that he is in imminent threat of bodily harm or that the use of chemical agents will prevent injury to other staff, visitors, volunteers, or inmates. Certified security officers assigned to armed perimeter posts may be exempted from this requirement by the warden.
2. Certified officers assigned to major institutions and posted to internal security, recreation field, shift supervisor posts, or designated as “A” team response members are authorized by the Secretary to be issued one MK-9, or equivalent, dispenser of OC in addition to the dispenser issued in accordance with subparagraph (16)(l)1. These officers are authorized to administer the chemical agents listed in this subparagraph in spontaneous disturbance situations involving multiple inmates in locations where large numbers of inmates are present, such as recreation fields, canteen, and meal lines. This option shall only be utilized in disturbance situations rising to the level of inmate involvement where this enhanced option is deemed necessary and shall not be used indoors.
3. The chemical agent dispenser shall be securely encased and attached to the officer’s belt. Each chemical agent dispenser will be secured within a pouch or to a holstering device 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. Form DC6-213 is incorporated by reference into subsection (22) of this rule. 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 Form DC6-210, Incident Report, will be written. The arsenal sergeant shall maintain a master 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 Form DC6-216, Chemical Agent Accountability Log, and attach a new seal. Any discrepancies in the weight of the dispenser will be reported to the chief of security, and Form DC6-210, Incident Report, shall be completed.
(m) In any case where chemical agents are used, an accurate record shall be maintained as to what type of agent was used, how much was used, method of administration, person authorized to draw chemical agent when issued from a secure location, person administering the chemical agent, location administered, and reason for use. This information shall be included in Section I of Form DC6-230, Institutions Report of Force Used.
(n) Procedure for the use of chemical agents on disruptive inmates under controlled conditions:
1. If an inmate becomes disorderly, disruptive, or unruly to the point he is creating a disturbance impacting the housing unit, other inmates, or the officer’s ability to provide unit security, and attempts by officers at counseling and ordering the cessation of disruptive behavior fails, the confinement or close management lieutenant or shift supervisor or person of higher rank shall be contacted for further instructions
2. If the confinement or close management lieutenant or shift supervisor’s efforts to control the disorderly inmate have failed and the use of chemical agents is the least level of force that can be expected to successfully gain control of the disruptive inmate while minimizing the risk of injuries to all involved, the shift supervisor shall:
a. When in a close management or confinement setting, review Form DC4-650B, Risk Assessment for the Use of Chemical Restraint Agents and Electronic Immobilization Devices, to determine if the inmate has a medical condition that would be exacerbated by the use of chemical agents; as with the use of EIDS, if no form is available, where time and circumstances permit, contact medical staff to determine whether the inmate has any medical condition that would make the use of chemical agents dangerous to that inmate’s health; and
b. Contact the warden or, in his or her absence, the duty warden and request authorization to utilize chemical agents.
3. Prior to using chemical agents, the inmate again shall be counseled with by the shift supervisor concerning his behavior.
a. If this attempt to counsel with the inmate is unsuccessful, the inmate will be given a final order by the shift supervisor to cease his actions. The inmate will also be informed at this time that chemical agents will be administered if he continues his disruptive behavior.
b. If the inmate continues his disruptive behavior, approximately three minutes after the order is given, staff are authorized to administer chemical agents in the form of no more than three one-second bursts. Staff are authorized to immediately utilize chemical agents if physical injury to staff or other inmates appears imminent.
c. If after approximately five minutes from the initial exposure the inmate still continues his disruptive behavior, staff are authorized to again administer chemical agents for no more than three one-second bursts.
d. If the second administration of chemical agents fails to control the inmate’s disruptive behavior, the duty warden shall again be consulted to determine the next course of action. Additional actions include:
I. Additional administration of the same type or other type of chemical agent; and
II. Other uses of force as authorized by this rule.
e. Any uninvolved inmates in the cell or immediate area shall be given an opportunity to leave the potentially affected area, if it will not jeopardize the safety of staff or other inmates.
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 confinement or close management lieutenant or the shift supervisor is unavailable, he shall provide a written explanation as to why he was not available to supervise the administration of chemical agents.
(o) Medical Requirements.
1. Following the administration of chemical agents, the inmate will be monitored for any signs of respiratory distress; i.e., labored breathing, excessive or persistent coughing, or other signs of distress. The inmate will be questioned about any past history of respiratory problems such as asthma, bronchitis, emphysema, or shortness of breath. If the inmate displays or reports any of these symptoms or conditions, the inmate requires immediate attention by medical staff who have reviewed the inmate’s medical record for any history of such respiratory problems.
2. In the event chemical agents are utilized on an inmate who is out of control to the degree where four (4)-point restraints are required for safety purposes, he will be constantly monitored by health services staff for signs of distress and, if distress occurs, treated to alleviate the distress. Approval from the warden or the duty warden is to be obtained prior to placing an inmate in four (4)-point restraints. Approval must also be subsequently obtained from the designated health authority.
3. Following the use of chemical agents, except as noted above, staff will avoid placing the inmate in a lying-down position, either face down or face up.
a. The inmate will be maintained in a sitting or standing position for at least forty-five (45) to sixty (60) minutes after the use of chemical agents.
b. Constant observation for the possibility of respiratory distress is required and any indication of distress will prompt immediate assessment by medical staff.
c. If symptoms of the spray persist after sixty (60) minutes, the inmate will be brought for immediate medical attention.
4. The inmate will not be held or mechanically restrained in any way that would obstruct movement of the inmate’s chest or abdomen. If the inmate has been subjected to chemical agents and then personally restrained to allow security to place mechanical restraining devices on the inmate (such as handcuffs), the inmate will be moved to a sitting or standing position immediately after s/he is secured.
5. Once the inmate is compliant, he shall be showered as soon as possible but not later than 20 minutes after final application of chemical agents. The inmate shall be examined by medical staff immediately after showering. In each instance a Form DC4-701C, Emergency Room Record, shall be completed in its entirety with applicable data, or the letters N/A used to indicate not applicable. If an injury is claimed or found to exist, 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 those cases where an injury is claimed but not substantiated by medical examination, the statement shall indicate that, and the documentation shall be sufficient to support that no injury was found upon examination. Medical staff shall, upon completing the medical examination, make a mental health referral for each inmate who is classified S-2 or S-3 on the health profile. The referral shall be made by completing Form DC4-529, Staff Request/Referral, and sending it to mental health staff. Mental health staff shall evaluate the inmate not later than the next working day, to determine whether a higher level of mental health care (isolation management, transitional or crisis stabilization) is indicated.
(p) Any part of the body exposed to chemical agents, especially eyes, shall be flushed with water as soon as possible after exposure for at least five to ten minutes or until the affected inmate experiences relief. The affected area shall not be rubbed with a cloth or towel, and no oils, creams, or topical medications shall be applied unless medical staff so directs.
(q) Inmates exposed to chemical agents shall be ordered by the shift supervisor to shower and change both inner and outer wear within 20 minutes after exposure for decontamination purposes.
1. If an inmate refuses to shower or change, the refusal shall result in a disciplinary report and be documented:
a. On Form DC6-210, Incident Report, by the shift supervisor; or
b. On Form DC6-229, Daily Record of Segregation, by the confinement lieutenant or shift supervisor, if the inmate is in confinement or close management. Form DC6-229 is incorporated by reference in Rule 33-602.220, F.A.C.
2. In the event the inmate refuses to shower or change, staff shall advise the medical staff member who is responsible for examining the inmate following the use of force of this refusal and medical staff shall immediately report to the area to conduct a cell-front examination and to explain the importance of showering after exposure to chemical agents, except in case of emergency which shall be documented.
3. The shift supervisor shall again order the inmate to shower. If the inmate refuses again, this refusal shall also be documented in writing and witnessed by the shift supervisor and medical staff.
4. If medical staff determine that there is no immediate medical need for the inmate to shower, then for the next 2 hours the inmate shall be checked every 30 minutes and given the opportunity to shower. These checks shall be documented on Form DC6-229, Daily Record of Segregation.
5. If health services staff determine that a medical need requires the inmate to be showered, the provisions of subsection 33-602.210(12), F.A.C., shall be followed to shower the inmate and move him to a decontaminated cell.
(r) Upon request, appropriate health services staff shall provide the following completed forms to Department inspectors or legal staff: Form DC4-701C, Use of Force Exam; Form DC4-708, Diagram of Injury; and Form DC4-701, Chronological Record of Health Care.
(18)(17) Specialty Impact Munitions. Specialty impact munitions shall be used primarily by the department’s rapid response teams and correctional emergency response teams during riots and disturbances. They are intended as a less lethal alternative to the use of deadly force. Specialty impact munitions shall only be employed by officers trained in their use and effects and shall not be used on anyone other than an inmate during an authorized use of force.
(a) Definitions:
1. Specialty Impact Munitions – Munitions designed to incapacitate, distract, and control a subject with less likelihood of life-threatening injury.
2. Rubber Ball Rounds – Multiple pellets fired from cartridges at the lower extremities of rioters, designed to inflict pain compliance.
3. Wooden Baton Rounds – Multiple wooden baton rounds fired from a 37-mm weapon, designed to be skip fired into the lower extremities of rioters to inflict pain compliance.
4. Skip Firing – The practice of firing specialty impact munitions 5-7 feet in front of rioters, thereby deflecting the munitions into the legs of the rioters.
5. Direct Firing – The practice of firing specialty munitions directly into a group of rioters, from a distance of greater than 20 feet with a target area of the waist or below.
(b) The following specialty impact munitions have been approved for use by the department:
1. 37-mm rubber ball pellet rounds,
2. 12 gauge rubber ball pellet rounds,
3. 37-mm wooden baton rounds.
4. 40-mm direct impact – OC marking rounds.
(c) Selection and deployment of specialty impact munitions during a riot or disturbance shall be authorized by the ultimate commander and supervised by the rapid response or correctional emergency response team leader. For the purposes of this rule, the ultimate commander is the secretary or his designee at the central office level, the regional director or his designee at the regional level, or the warden or his designee at the institution level.
(d) Specialty impact munitions shall only be used after all other reasonable alternatives to regain control have been exhausted. They are generally intended to be used as an interim force response between the use of chemical agents and lethal force.
(e) Specialty impact munitions shall not be deployed in the direction of any individual at a distance of less than 10 feet, unless the threat justifies the escalation to deadly force.
(f) Storage of Specialty Impact Munitions.
1. Specialty impact munitions shall be stored and maintained in the main arsenal.
2. Specialty impact munitions shall not be mixed with lethal munitions. Weapons designated to deploy specialty impact munitions shall be marked in a manner to alert staff of their intended use.
3. All specialty impact munitions will be accounted for in the same manner as firearms and ammunition.
(g) After each use of specialty impact munitions, exposed inmates shall be examined by medical personnel.
(h) In any case where specialty impact munitions are deployed Form DC6-230, Institutions Report of Force Used, shall be filed in accordance with use of force procedures set forth in this rule.
(19)(18) Use of Firearms. In order for all concerned to be aware of their responsibilities, the statewide procedures set forth in this rule shall be included in the appropriate Department of Corrections procedures, post orders and escape emergency plans at each institution.
(a) No employee shall, in conjunction with his job responsibilities, carry a firearm or weapon on or about his person, either concealed or unconcealed, unless it is state equipment which has been properly issued and the employee is acting within the scope of official duties with the Department of Corrections.
(b) Firearms or weapons shall be issued to an employee only upon instructions of the warden, duty warden, chief of security or shift supervisor by the arsenal officer or the officer designated to issue weapons. Employees shall not intentionally discharge a firearm at or in the direction of another person except under the following circumstances and after all reasonable non-lethal alternatives have been exhausted, and there is no danger to innocent bystanders:
1. Escape or apprehension of an identified escapee;
2. Use of vehicle to gain unauthorized entry into or exit from a correctional institution in order to facilitate an escape;
3. To prevent injury to a person including self-defense; or
4. To quell a riot.
(c) The use of twelve gauge #6 steel turkeyshot is approved for use by the rapid response teams during riots and disturbances. It is intended to be fired from a distance in the direction of the rioters’ lower extremities to inflict pain compliance to directions and orders. It is acknowledged that the #6 steel shot has the potential of inflicting a lethal injury; however, its use is considered a less lethal interim munition to be used prior to more lethal loads authorized by the department.
(d) Weapons to be used shall be designated by the person in charge.
(e) Firearms shall not be discharged:
1. In any case where there is reason to believe that the life of an innocent bystander will be endangered by discharge of the firearm;
2. From any moving vehicle unless such action is reasonably believed necessary to protect oneself or another from imminent death or great bodily harm;
3. As a warning except during escapes, unless exceptional circumstances exist which would justify the firing of a warning shot;
4. Until the employee is sure that an escape is occurring or has occurred and he is reasonably certain that the person to be fired upon is an escapee;
5. Until the employee is sure of the target and what lies beyond;
6. If an inmate is escaping and the officer is recapturing the inmate in a congested area;
7. Except after all reasonable non-lethal alternatives have been exhausted; or
8. On the mere suspicion that a crime, no matter how serious, has been committed.
(f) Any correctional employee who willfully or wantonly fires or otherwise discharges his weapon carelessly or at random may be prosecuted in accordance with Florida law.
(g) Because helicopters or other aircraft may be used during an escape or assault, the following policy shall apply:
1. When it can be done safely, actions other than firing of weapons, such as waving of arms in such a manner as to indicate disapproval to enter an area, shall be made in an attempt to cause the aircraft to leave.
2. If these attempts fail, the aircraft shall be allowed to land.
3. All inmates shall be kept away from the aircraft.
4. Secure the aircraft using armed security staff, or prevent it from being flown away by securing the flight equipment with locks and chains without causing damage to the aircraft.
5. If the landing was brought about due to an emergency, i.e., engine failure or other reason, maintain security of the aircraft and all occupants until their removal from the site.
6. Once the aircraft lands, efforts shall be directed to stop any inmate from boarding the aircraft in an attempt to escape. Staff are authorized to shoot any inmate attempting to escape in accordance with existing policy. When circumstances permit, a verbal warning to halt and a warning shot shall be fired prior to the inmate reaching the aircraft.
7. If weapons are fired from an aircraft, department personnel are authorized to return fire and use deadly force to protect the life and well being of inmates, staff and other individuals who may be on the compound.
8. If attempts to prevent inmates from boarding the aircraft fail and the aircraft leaves, the aircraft is not to be fired upon, unless the officer is returning fire as described in subparagraph 7. above. Immediate notification should be made to law enforcement personnel and the Federal Aviation Administration giving departing flight directions and any other information necessary to identify the aircraft. Additional information on the escaped inmates, possible damage to the aircraft, and weapons used by persons in the aircraft should also be reported.
9. All inmates shall receive orientation in regard to this policy. This orientation shall contain instructions indicating that should any helicopter or aircraft either attempt to land on or near the property of any Department of Corrections facility, inmates are required to move away from the aircraft. Movement toward the aircraft by an inmate shall be viewed as an escape attempt and shall subject the inmate to the use of deadly force to prevent him from escaping.
10. This policy shall be made a part of the department’s orientation program at all reception centers.
(h) Use of vehicle to gain unauthorized entry into or exit from a correctional institution:
1. The institution or facility shall take steps to prevent vehicles from being used to gain unauthorized forced entry into or forced exit from its perimeter area.
2. If it becomes necessary, the following procedure should be followed:
a. Time permitting, a verbal order to halt shall be issued followed by a warning shot if the vehicle fails to stop.
b. If the vehicle continues and it is evident that it is going to ram the perimeter area and will thereby endanger lives of staff or inmates, and if there is a clear line of fire, firearms shall be used to disable the vehicle. If weapons are fired from a vehicle, staff are authorized to return fire and use deadly force to protect the lives of staff, inmates, or other individuals.
c. When possible and time permitting, any shot fired at a vehicle, shall be aimed at a tire or engine with the intent of disabling the vehicle.
(i) The employee discharging a weapon shall file a complete written report of the incident. If any correctional employee has fired a weapon during the performance of his duty, every effort shall be made to collect the empty cartridges which shall be tagged, dated, and signed for, so that accurate information and evidence are maintained for future investigation of the incident.
(20)(19) Pepperball Launching System (PLS). The PLS shall be used primarily by restricted labor squad supervisors and exercise officers for designated confinement, close management, maximum management, and death row populations. The PLS is intended for the dispersal of chemical agents in situations where the use of aerosol type agents would not be effective due to weather conditions or when their use could subject the officer or uninvolved inmates to injury. The PLS shall only be employed by officers trained in their use and effects
(a) The secretary shall designate those institutions authorized to utilize the PLS.
(b) In controlled situations when time constraints are not an issue, the PLS can only be used if authorized by the warden or duty warden. Additionally, certified correctional staff will be designated by the warden to utilize the PLS and will be pre-authorized to administer chemical agents in instances where chemical agents must be used immediately to quell assaults and fights among inmates assigned as outlined in paragraphs (c) and (d) below.
(c) PLS is authorized for use to quell assaults and fights among inmates assigned to restricted labor squads. Authorized activiation of the PLS by staff assigned to restricted labor squads does not constitute deadly force.
(d) PLS is authorized for use in designated confinement, close management and death row recreation areas to quell assaults and fights among inmates.
(e) PLS is classified as less-than-lethal at all distances, but, unless the incident necessitates otherwise, it shall be primarily utilized at a distance of five (5) feet or greater to prevent the inmate from attempting to take control of the launcher.
(f) Written authorization from the warden or acting warden shall be received prior to utilization of the PLS for situations other than those described in paragraphs (c) and (d) above. This written authorization shall detail the reasons it was necessary to utilize the PLS in addition to or in place of aerosol type chemical agents.
(g) All subsequent reports, medical requirements and reviews required for the use of chemical agents as outlined in subsection (16) above shall be completed after the use of the PLS.
(h) Each assigned PLS system shall be numbered, maintained, and inventoried by the shift supervisor or designee on Form DC6-216, Chemical Agent Accountability Log.
(21)(20) Medical Attention Following Use of Force. Appropriate medical treatment shall be provided immediately or, in the case of a riot or other man-made or natural disaster, as soon as possible following resolution of the riot or disaster. Any treatment or follow-up action shall be documented in Section III of Form DC6-230, Institutions Report of Force Used. A qualified health care provider shall examine any person physically involved in a use of force to determine the extent of injury, if any, and shall prepare a report which shall include a statement of whether further examination by a physician is necessary. Any noticeable physical injury shall be examined by a physician and the physician shall prepare a report documenting the extent of the injury and the treatment prescribed. Such report shall be completed within 1 working day of the incident and shall be submitted to the warden for initial review. The qualified health provider and physician shall use Form DC4-701C, Emergency Room Record, to document an examination following use of force. Form DC4-708, Diagram of Injury, shall be used along with Form DC4-701C to document obvious physical injuries. A copy of the report, along with the referenced forms, shall be attached to the Institutions Report of Force Used. The original reports shall be filed in the medical record.
(22) No weapon shall be issued for any purpose other than the authorized use of force, or to a certified training officer for the purpose of approved training, without prior written authorization from the warden.
(23) Any officer who accidentally discharges a weapon shall complete Form DC6-210, Incident Report, by the end of his or her assigned shift.
(24)(21) Any violations of the provisions of this section shall be subject to the penalties prescribed in Section 944.35, F.S.
(25)(22) The following forms are hereby incorporated by reference. Copies of these forms are available from the Forms Control Administrator, 2601 Blair Stone Road, Tallahassee, Florida 32399-2500.
(a) DC1-813, Use of Force File Checklist, effective September 18, 2006.
(b) DC2-802, Use of Force Log, effective February 7, 2000.
(c) DC4-529, Staff Request/Referral, effective January 6, 2009.
(d) DC4-701C, Emergency Room Record, effective October 4, 2007.
(e) DC4-708, Diagram of Injury, effective October 4, 2007.
(f) DC4-711A, Refusal of Health Care Services, effective January 6, 2009.
(g) DC6-210, Incident Report, effective March 3, 2008.
(h) DC6-213, Individual Chemical Agent Dispenser Accountability Log, effective September 18, 2006.
(i) DC6-216, Chemical Agent Accountability Log, effective July 25, 2002.
(j) DC6-230, Institutions Report of Force Used, effective August 25, 2003.
(k) DC6-231, Institutions Report of Force Used Staff Supplement, effective August 25, 2003.
(l) DC6-232, Authorization for Use of Force Report, effective July 25, 2002.
(m) DC6-296, Disapproved Use of Force/Disposition Report, effective July 25, 2002.
(n) DC4-650B, Risk Assessment for the Use of Chemical Restraint Agents and Electronic Immobilization Devices, effective August 4, 2008.
Rulemaking Authority 944.09 FS. Law Implemented 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, 9-18-06, 10-4-07, 3-3-08, 8-4-08, 1-6-09, 5-26-09,________.