Cal. Code Regs. tit. 15 § 3268

Current through Register 2024 Notice Reg. No. 17, April 26, 2024

Section 3268 - Use of Force

The purpose of this section is to set forth Department of Corrections and Rehabilitation (CDCR) policy governing the use of force. The policy has its foundation in California Penal Code statutes and relevant case decisions.

(a) Definitions.

(1) Reasonable Force:

The force that an objective, trained and competent correctional employee, faced with similar facts and circumstances, would consider necessary and reasonable to subdue an attacker, overcome resistance, effect arrest and custody, prevent escape, or gain compliance with a lawful order.

(2) Unnecessary Force:

The use of force when none is required or appropriate.

(3) Excessive Force:

The use of more force than is objectively reasonable to accomplish a lawful purpose.

(4) Immediate Use of Force:

The force used to respond without delay to a situation or circumstance that constitutes an imminent threat to institution or facility security or the safety of persons. Immediate force may be necessary to subdue an attacker, overcome resistance, effect arrest and custody, or prevent escape. If it is necessary to use force solely to gain compliance with a lawful order, controlled force shall be used.

(5) Imminent Threat:

An imminent threat is any situation or circumstance that jeopardizes the safety of persons or compromises the security of the institution and requires immediate action to stop the threat. Some examples include, but are not limited to, an attempt to escape, on-going physical harm, or active physical resistance.

(6) Controlled Use of Force:

The force used in an institution or facility setting, when an inmate's presence or conduct poses a threat to safety or security and the inmate is located in an area that can be controlled or isolated.

(7) Non-Conventional Force:

Force that utilizes techniques or instruments that are not specifically authorized in policy, procedures, or training. Depending on the circumstances, non-conventional force can be necessary and reasonable; it can also be unnecessary or excessive.

(8) Non-Deadly Force:

Any use of force that does not create a substantial risk of causing death or serious bodily injury (SBI).

(9) Deadly Force:

Any use of force that creates a substantial risk of causing death or SBI, including, but not limited to, the discharge of a firearm. Any discharge of a firearm other than the lawful discharge during weapons qualifications, firearms training, or other legal recreational use of a firearm, is deadly force.

(10) "Totality of the circumstances" means all facts known to the peace officer at the time, including the conduct of the officer and the subject leading up to the use of force.

(11) Response Supervisor:

The Response Supervisor is the first line supervisor in an institution or facility responsible for the area where an incident occurs.

(12) Responding Supervisor or Field Supervisor:

The Responding Supervisor or Field Supervisor is the first line supervisor responsible for the employee involved in an incident.

(13) Incident Commander:

The Incident Commander is the second line supervisor in an institution or facility responsible for the area where an incident occurs or an allegation of excessive or unnecessary force is received.

(14) First Level Manager:

A First Level Manager in an institution or facility is a Captain.

(15) A First Line Manager is a:

(A) Parole Administrator, District Administrator, or Administrative Officer of the Day (AOD), Division of Adult Parole Operations (DAPO).

(B) Special Agent-In-Charge, Office of Correctional Safety (OCS).

(C) Special Agent-In-Charge, Office of Internal Affairs (OIA).

(D) AOD, Division of Adult Institutions (DAI).

(16) Second Level Manager:

A Second Level Manager in an institution or facility is an Associate Warden.

(17) Second Line Manager is a:

(A) Chief Deputy Regional Administrator, DAPO

(B) Deputy Chief, OCS

(C) Chief, OIA

(18) Deadly Force Review Board (DFRB) is the board responsible for conducting a complete review of incidents involving a use of deadly force (except those meeting the exceptions listed in subsections 3268.3 (f)(1)(D), (E), or (F). The DFRB also reviews every death or great bodily injury (GBI) that could have been caused by a staff use of force, regardless of whether the incident occurs in an institutional or community setting. The DFRB shall be composed of at least four members. Three shall be non-departmental law enforcement professionals. One shall be a Division, Parole Region, or Institution or Facility Manager (i.e. Associate Director, Chief or designee) outside the chain of command of the involved employee(s). Additional members may be designated by the Secretary or designee.

(19) Institutional Executive Review Committee (IERC):

The IERC is a committee of institution staff chaired by the respective Institution Head tasked with reviewing all uses of force and every allegation of excessive or unnecessary force.

(20) Department Executive Review Committee (DERC):

DERC is a committee of staff selected by, and including, the Associate Director who oversees the respective institution or facility Mission-based unit.

(A) The DERC shall review all incidents involving serious bodily injury (SBI), or GBI that could have been caused by staff use of force. Cases involving the use of deadly force (e.g. warning shots per Penal Code section 835a(e)(1)) or SBI caused by a staff use of force can be referred by the Hiring Authority for investigation to the OIA. In conjunction with these investigations, a Vertical Advocate and a representative from the Office of the Inspector General (OIG) are designated to monitor the case. Once a final decision has been made by the Associate Director, the case will be closed and the decision will be reviewed by both the IERC and DERC. The DERC shall also review those incidents referred to the DERC by the IERC Chairperson. The DERC may also request to review any use of force incident involving SBI or GBI.

(B) Cases where the DFRB has rendered a decision relative to staff's use of deadly force shall not require review by the DERC, as the finding has been reviewed and approved by the Undersecretary. Additionally, the DERC shall not review cases involving staff's use of force where OIA has conducted an investigation and a finding has been rendered by the Hiring Authority.

(21) Field Executive Review Committee (FERC):

The FERC is a committee of field staff chaired by a Regional Parole Administrator, OCS Chief or designee, or OIA Deputy Director or designee, in the respective area for which they are responsible, who is tasked with reviewing all uses of force including every allegation of excessive or unnecessary force.

(22) Deadly Force Investigation Teams (DFIT):

DFIT is a team of OIA Special Agents who conduct administrative and criminal investigations into incidents involving the use of deadly force or a use of force that results in death or GBI. All discharges of a firearm by a peace officer, both on and off duty, shall be reported, pursuant to Sections 3268.1 and 3268.3, to OIA and the Office of the Inspector General (OIG). OIA shall review or conduct a full investigation of the circumstances surrounding the discharge of a firearm, except the lawful discharge of a firearm during weapons qualifications, firearms training, or other legal recreational uses of a firearm.

(23) Joint Use Committee (JUC):

The JUC is a committee of field staff from the department tasked with reviewing and evaluating recommended revisions to the department's Use of Force Regulations and Procedures.

(b) It is the policy of the Department of Corrections and Rehabilitation (CDCR) to accomplish the departmental functions with minimal reliance on the use of force.

(1) Employees shall attempt to use verbal commands and verbal de-escalation, followed by a reasonable amount of time for compliance before resorting to use of force.

(2) When verbal commands and de-escalation techniques do not work, or are not feasible in light of the situation, employees may use reasonable force as required in the performance of their duties, but unnecessary or excessive force shall not be used.

(3) An employee's determination regarding the need to use force, and the amount of force needed shall be used in a manner that is fair and unbiased.

(4) The unresisted searching or escorting of a person and the unresisted application of authorized restraint equipment is not a use of force.

(5) Employees shall render medical aid, consistent with their training, as soon as safe to do so after any use of force.

(c) Use of Force Options. Use of Force options do not have to be used in any particular sequence, but should be the force option staff reasonably believes is appropriate. Whenever possible, verbal persuasion or orders shall be issued prior to resorting to force and are required to be provided before controlled force is used. Use of force options include but are not limited to:

(1) Chemical agents.

(2) Physical force. Any deliberate physical contact, using any part of the body to overcome active physical resistance, is considered physical force. CDCR does not authorize chokeholds or any other physical restraints, which prevents the person from swallowing or breathing or restricts blood flow to the brain.

(3) Less-lethal weapons: A less-lethal weapon is any weapon that is not likely to cause death. Examples include but are not limited to a hand-held baton, an electronic control device (ECD), a 37mm or 40mm launcher, and any other weapon used to fire less-lethal projectiles is a less-lethal weapon.

(4) Lethal weapons: A lethal weapon is any weapon that is likely to result in death. A firearm is a lethal weapon because it is used to fire lethal projectiles.

(d) The CDCR recognizes the sanctity of human life. Therefore, deadly force shall only be used when the officer reasonably believes, based on the totality of the circumstances, that such force is necessary for any of the following reasons:

(1) Defend the employee or other persons from an imminent threat of death or GBI.

(2) Apprehend a fleeing person for any felony that threatened or resulted in death or GBI, if the officer reasonably believes that the person will cause death or GBI to another unless immediately apprehended. Where feasible, a peace officer shall, prior to the use of force, make reasonable efforts to identify themselves as a peace officer and to warn that deadly force may be used, unless the officer has objectively reasonable grounds to believe the person is aware of those facts.

(3) Dispose of seriously injured or dangerous animals when no other disposition is practical.

(4) Deadly force shall not be used against a person based on the danger that a person poses to themselves if an objectively reasonable officer would believe the person does not pose an imminent threat of death or GBI to the peace officer or to another person.

(5) A firearm may only be discharged from or at a moving vehicle if the criteria for deadly force is met and it is reasonable to believe that such actions are intended to end an imminent threat to human life. Department staff should, whenever possible, avoid putting themselves in the path of a moving vehicle and shall, when reasonable, consider moving out of the vehicle's path to mitigate the threat.

(e) In facilities contracted to house CDCR inmates outside of California, the use of deadly force shall only be applied in accordance with applicable law in the state where the facility is located.

(f) Employees must consider their surroundings and potential risks to bystanders before discharging a firearm. Accordingly, a firearm shall not be discharged if it is reasonable to believe, based on the totality of the circumstances, that the level of potential injury to a person other than the intended target is greater than the threat presented by the intended target.

(g) Firearms may be discharged as a warning only in a secure facility and only when deadly force is permitted under Section 3268(d).

(h) Immediate Use of Force. A verbal warning shall be given before force is used unless the circumstances requiring the immediate force preclude such a verbal warning.

(i) Controlled Use of Force. In an institution or secure facility setting, controlled use of force may be used when time and circumstances permit advance planning, staffing and organization. A controlled use of force requires authorization and the presence of a First or Second Level Manager, or during non-business hours, an AOD, and must be reported within the Incident Report Tracking (IRT) system in the Department's electronic database, which contains the same information as the forms incorporated by reference, or be documented on a CDCR Form 837-C (Rev. 10/15), Crime/Incident Report Part C--Staff Report, which is hereby incorporated by reference.

(j) Tactical Use of Force. In a field or community setting, the tactical use of force is part of an operation plan at a predetermined location with intended targets. All use of force options available shall be considered. The Tactical Use of Force shall require prior supervisory approval during the operation planning.

(k) Chemical Agents. Departmentally approved chemical agents include, but are not limited to, the following: oleoresin capsicum (OC), chloroacetophenone (CN), and orthochlorobenzalmalononitrile (CS).

(l) Decontamination from Chemical Agents. Any person exposed to a chemical agent shall be afforded an opportunity to decontaminate as soon as practical. If the person refuses to decontaminate, the refusal shall be documented. If an inmate was exposed in a cell and not removed from the cell where the exposure occurred, in-cell decontamination shall be afforded to the inmate, to include but not be limited to:

(1) Health care staff advising the inmate how to self-decontaminate in the cell.

(2) Health care staff monitoring the in-cell inmate at least every 15 minutes for a period not less than 45 minutes.

Cal. Code Regs. Tit. 15, § 3268

1. New article 1.5 (sections 3268-3268.2) and section filed 3-12-99 as an emergency; operative 4-1-99 (Register 99, No. 11). A Certificate of Compliance must be transmitted to OAL by 9-8-99 or emergency language will be repealed by operation of law on the following day pursuant to Penal Code section 5058(e)(1).
2. Editorial correction of History1 (Register 99, No. 24).
3. Certificate of Compliance as to 4-1-99 order, including amendment of first paragraph, transmitted to OAL 9-8-99 and filed 10-20-99 (Register 99, No. 43).
4. Amendment of section and Note filed 8-19-2010; operative 8-19-2010 pursuant to Government Code section 11343.4(Register 2010, No. 34).
5. Amendment of subsection (a)(4), new subsection (a)(5), subsection renumbering, amendment of newly designated subsection (a)(17) and subsections (d)(1) and (i) filed 6-17-2015 as an emergency; operative 6/17/2015 (Register 2015, No. 25). Pursuant to Penal Code section 5058.3, a Certificate of Compliance must be transmitted to OAL by 11-24-2015 or emergency language will be repealed by operation of law on the following day.
6. Certificate of Compliance as to 6-17-2015 order, including further amendment of subsection (i), transmitted to OAL 11-17-2015 and filed 12-30-2015; amendments operative 12/30/2015 pursuant to Government Code section 11343.4(b)(3) (Register 2016, No. 1).
7. Amendment of section and Note filed 11-16-2022; operative 11/16/2022 (Register 2022, No. 46). Filing deadline specified in Government Code section 11349.3(a)extended 60 calendar days pursuant to Executive Order N-40-20 and an additional 60 calendar days pursuant to Executive Order N-71-20.
8. Change without regulatory effect amending subsection (a)(18) filed 9-8-2023 pursuant to section 100, title 1, California Code of Regulations (Register 2023, No. 36).

Note: Authority cited: Section 5058, Penal Code. Reference: Sections 196, 835a, 2651, 2652 and 5054, Penal Code; Section 50, Civil Code; Whitley v. Albers (1985) 475 U.S. 312, 106 S.Ct. 1078; Madrid v. Cate (U.S.D.C. N.D. Cal. C90-3094 TEH); and Tennessee v. Garner (1985) 471 U.S. 1.

1. New article 1.5 (sections 3268-3268.2) and section filed 3-12-99 as an emergency; operative 4-1-99 (Register 99, No. 11). A Certificate of Compliance must be transmitted to OAL by 9-8-99 or emergency language will be repealed by operation of law on the following day pursuant to Penal Code section 5058(e)(1).
2. Editorial correction of History1 (Register 99, No. 24).
3. Certificate of Compliance as to 4-1-99 order, including amendment of first paragraph, transmitted to OAL 9-8-99 and filed 10-20-99 (Register 99, No. 43).
4. Amendment of section and Note filed 8-19-2010; operative 8-19-2010 pursuant to Government Code section 11343.4(Register 2010, No. 34).
5. Amendment of subsection (a)(4), new subsection (a)(5), subsection renumbering, amendment of newly designated subsection (a)(17) and subsections (d)(1) and (i) filed 6-17-2015 as an emergency; operative 6/17/2015 (Register 2015, No. 25). Pursuant to Penal Code section 5058.3, a Certificate of Compliance must be transmitted to OAL by 11-24-2015 or emergency language will be repealed by operation of law on the following day.
6. Certificate of Compliance as to 6-17-2015 order, including further amendment of subsection (i), transmitted to OAL 11-17-2015 and filed 12-30-2015; amendments operative 12/30/2015 pursuant to Government Code section 11343.4(b)(3) (Register 2016, No. 1).
7. Amendment of section and Note filed 11-16-2022; operative 11/16/2022 (Register 2022, No. 46). Filing deadline specified in Government Code section 11349.3(a) extended 60 calendar days pursuant to Executive Order N-40-20 and an additional 60 calendar days pursuant to Executive Order N-71-20.
8. Change without regulatory effect amending subsection (a)(18) filed 9-8-2023 pursuant to section 100, title 1, California Code of Regulations (Register 2023, No. 36).