Notice of Proposed Rule

DEPARTMENT OF CORRECTIONS
RULE NO: RULE TITLE
33-602.210: Use of Force
PURPOSE AND EFFECT: The purpose and effect of the proposed rule is to require designated officers to carry chemical agent dispensers designed for controlling incidents involving numerous inmates in large areas and to require all certified officers to carry a chemical agent dispenser designed for controlling incidents indoors and involving fewer inmates.
SUMMARY: The proposed amendment to Rule 33-602.210, F.A.C., requires designated officers to carry chemical agent dispensers designed for controlling incidents involving numerous inmates in large areas and requires all certified officers to carry a chemical agent dispenser designed for controlling incidents indoors and involving fewer inmates, and authorizes designated and certified officers to utilize chemical agents in certain circumstances. Form DC4-529, Staff Request/Referral, and Form DC4-711A, Refusal of Health Care Services are amended for clarity and DC4-711A is amended to include the following language “I acknowledge that I have been informed of the diagnosis, if known, nature and purposes of the proposed treatment or procedure, risks and benefits of the proposed treatment or procedure, alternative treatments and their risks and benefits and the consequences danger to my health and possibly to my life that may result from my refusal of this procedure/treatment.” Form references throughout have been amended for clarity.
SUMMARY OF STATEMENT 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: 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: Jamie Jordan-Nunes, 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) though (6) No change.

(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 the Authorization for Use of Force Report, 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.

(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 shall be prepared, dated and signed by the initial employee using force. Form DC6-230, Institutions Report of Force Used, shall be used for this purpose. 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, an Institutions Report of Force Used Staff Supplement, Form DC6-231. 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.

(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 Form DC1-813, Use of Force File Checklist, Form DC1-813. All inmate statements (subject and witnesses) shall be made in writing using Form DC6-112C, 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, 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 the Use of Force File Checklist, 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. 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 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, 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 Form DC2-802, 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 Form 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) Any employee who witnesses, or has reasonable cause to suspect, that an inmate has been unlawfully abused shall immediately prepare, date and sign an Incident Report, 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. Form DC6-210, Incident Report, is incorporated by reference in subsection (22) of this rule.

(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, 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 Form DC6-230, the Institutions Report of Force Used, when actual force is used, or Form DC6-210, 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 Form DC4-711A, a Refusal of Health Care Services, 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, Institutions Report of Force Used, or an Institutions Report of Force Used Staff Supplement, 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 an Incident Report, Form DC6-210, Incident Report, will be completed. The videotape, the completed Incident Report, and the completed Authorization for Use of Force Report, 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.

(13) through (14) No change.

(15) Use of electronic immobilization devices.

(a) through (g) No change.

(h) In any case where electronic immobilization devices are used, an Institutions Report of Force Used, Form DC6-230, Institutions Report of Force Used, shall be prepared written and shall include:

1. through 2. No change.

(i) through (l) No change.

(16) Use of Chemical Agents.

(a) The following chemical agents are authorized for use by the department:

1. No change.

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. No change.

b. When documentation is available, e.g., previous Institutional Report of Force Used, 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. through f. No change.

3. No change.

(b) No change.

(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 designated by the warden to carry chemical agents and 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) through (f) No change.

(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, the Institutions Report of Force Used, Form DC6-230.

(h) 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, 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 the Chemical Agent Accountability Log, Form DC6-216. Form DC6-216 is incorporated by reference in subsection (22) of this rule.

(l) Issuance of chemical agents.

1. Certified officers assigned to major institutions and work camps are Staff 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, with marking dye, 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 twelve to thirteen ounce MK-9, or equivalent, fogger type 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 MK-4 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, 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, Chemical Agent Accountability Log, and attach a new seal.

(m)(l) 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, the Institutions Report of Force Used, Form DC6-230.

(n)(m) No change.

(o)(n) Medical Requirements. 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. 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.

(p)(o) No change.

(q)(p) 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.; or

c. On Form DC6-229A, by the close management lieutenant or shift supervisor, if the inmate is in close management. Form DC6-229A is incorporated by reference in Rule 33-601.800, F.A.C.

2. through 5. No change.

(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.

(a) through (g) No change.

(h) In any case where specialty impact munitions are deployed, an Institutions Report of Force Used, Form DC6-230, Institutions Report of Force Used, shall be filed in accordance with use of force procedures set forth in this rule.

(18) 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, 2601 Blair Stone Road, Tallahassee, Florida 32399-2500.

(a) through (b) No change.

(c) DC4-529, Staff Request/Referral, effective________ August 25, 2003.

(d) through (e) No change.

(f) DC4-711A, Refusal of Health Care Services, effective _________ October 4, 2007.

(g) through (n) No change.

Specific 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,______.


NAME OF PERSON ORIGINATING PROPOSED RULE: George Sapp, Assistant Secretary of Institutions
NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: Walter A McNeil, Secretary
DATE PROPOSED RULE APPROVED BY AGENCY HEAD: August 29, 2008
DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAW: September 12, 2008