Cal. Code Regs. tit. 15 § 3268

Current through Register 2022 Notice Reg. No. 19, May 13, 2022
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 custody, 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/facility security or the safety of persons. Immediate force may be necessary to subdue an attacker, overcome resistance, or effect custody. 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/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 is not likely to result in death.

(9) Deadly Force:

Any use of force that is likely to result in death. 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) Response Supervisor:

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

(11) Responding Supervisor:

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

(12) Incident Commander:

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

(13) First Level Manager:

A First Level Manager in an institution/facility is a Facility Captain/Correctional Captain.

(14) First Line Manager:

A First Line Manager is a Parole Administrator, District Administrator, Special Agent-In-Charge, or Senior Special Agent.

(15) Second Level Manager:

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

(16) Second Line Manager:

A Second Line Manager is a Deputy Regional Parole Administrator or Chief.

(17) Deadly Force Review Board (DFRB) means the board responsible for conducting a full and complete review of all incidents involving a use of deadly force (except those meeting the criteria set forth in 3268(a)(21)) and every death or great bodily injury 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/Facility Manager (i.e. Associate Director, Division of Juvenile Justice (DJJ) Superintendent, Chief or designee) from outside the chain of command of the involved employee(s). Additional members may be designated by the Secretary or designee.
(18) 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.

(19) Department Executive Review Committee (DERC):

Department Executive Review Committee (DERC) is a committee of staff selected by, and including, the Associate Director who oversees the respective institution/facility Mission-based group. The DERC shall review all incidents involving deadly force, serious injury, great bodily injury or death. The DERC shall also review those incidents referred to the DERC by the IERC Chairperson or otherwise requested by the DERC.

(20) Field Executive Review Committee (FERC):

The FERC is a committee of field staff chaired by the respective Regional Parole Administrator, Assistant Secretary, or Chief tasked with reviewing all uses of force and every allegation of excessive or unnecessary force.

(21) Deadly Force Investigation Teams (DFIT):

DFIT is a team of trained department investigators that shall conduct criminal and administrative investigations into every use of deadly force and every death or great bodily injury that could have been caused by a staff use of force, except the lawful discharge of a firearm during weapons qualifications or firearms training, or other legal recreational uses of a firearm. Although defined as deadly force DFIT need not investigate the discharge of a warning shot inside an institution/facility if an Investigative Services Unit Sergeant or above, or an uninvolved Correctional Lieutenant or above confirms that the discharge of deadly force was a warning shot and that no injuries were caused by the shot. All warning shots shall be reported to the Office of Internal Affairs/DFIT and the Bureau of Independent Review (BIR).

(22) 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.

(23) Holding Cells:

A holding cell is a secure structure located within a building or sheltered area that is without running water, a toilet, or sleeping facilities, and is designed for the interim placement of one or more offenders.

(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. Employees may use reasonable force as required in the performance of their duties, but unnecessary or excessive force shall not be used.
(c) Use of Force Options. Use of Force options do not have to be utilized in any particular sequence, but should be the force option staff reasonably believes is sufficient. 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. The unresisted searching or escorting of a person and the unresisted application of authorized restraint equipment is not a use of force. Use of force options include but are not limited to:
(1) Chemical agents.
(2) Hand-held batons.
(3) Physical strength and holds. A choke hold or any other physical restraint which prevents the person from swallowing or breathing shall not be used unless the use of deadly force would be authorized.
(4) Less-lethal weapons: A less-lethal weapon is any weapon that is not likely to cause death. A 37mm or 40mm launcher and any other weapon used to fire less-lethal projectiles is a less-lethal weapon.
(5) 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 will only be used when it is reasonably necessary to:
(1) Defend the employee or other persons from an imminent threat of death or great bodily injury.
(2) Prevent an escape from custody.
(3) Stop acts such as riots or arson that constitute an immediate jeopardy to institutional security and, because of their magnitude, are likely to result in escapes, great bodily injury, or the death of other persons.
(4) Dispose of seriously injured or dangerous animals when no other disposition is practical.
(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) A firearm shall not be discharged if there is reason to believe that persons other than the intended target will be injured.
(g) Firearms may be discharged as a warning only in an institutional/facility setting 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/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 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, no other action is necessary. 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:
(A) Health care staff advising the inmate how to self decontaminate in the cell.
(B) 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

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; and Madrid v. Cate (U.S.D.C. N.D. Cal. C90-3094 TEH).

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).