Section 3268.1 - Reporting and Investigating the Use of Force for Institution or Facility Staff(a) Use of Force-Reporting Requirements. Every staff use of force is an incident that shall be reported.(1) Any employee who uses force or observes a staff use of force shall report it to a supervisor as soon as practical and submit the appropriate documentation, prior to being relieved from duty. In an institution or facility setting the documentation shall be reported within the IRT system in the Department's electronic database, which contains the same information as the forms incorporated by reference, or on a CDCR Form 837-A (Rev. 10/15), Crime/Incident Report Part A-Cover Sheet, CDCR Form 837-A1 (Rev. 10/15), Crime/Incident Report Part A1-Supplement, CDCR Form 837-B1 (Rev. 10/15), Crime/Incident Report Part B1-Inmate, CDCR Form 837-B2 (Rev. 10/15), Crime/Incident Report Part B2-Staff, CDCR Form 837-B3 (Rev. 10/15), Crime/Incident Report Part B3-Visitor, Other, CDCR Form 837-C (Rev. 10/15), Crime/Incident Report Part C-Staff Report, CDCR Form 837-C1 (Rev. 10/15), Crime/Incident Report Part C1-Supplement, or a CDCR Form 837-C2 (Rev. 10/15), Crime/Incident Report Part C2-Review Notice, which are hereby incorporated by reference.(2) The supervisor shall document his or her review on a CDCR Form 3010 (Rev. 10/15), Incident Commander's Review/Critique Use of Force Incidents, which is hereby incorporated by reference, and forward it with the employee's document through the designated chain of command, to the institution head for approval or follow-up action.(b) Additional Reporting Requirements for Use of Deadly Force. (1) An employee who intentionally or accidentally uses deadly force, whether on or off duty, shall ensure that a supervisory employee is notified of the incident without delay. This reporting is not required for the lawful discharge of a firearm during weapons qualifications, firearms training, or other legal recreational use of a firearm.(2) The response supervisor shall ensure that the chain of command is notified and all necessary health and safety, medical and security measures are initiated. (A) The Public Safety Statement shall be verbally given to a supervisor as soon as it is safe and practical to do so. If the incident is in an institution or facility, the response supervisor shall obtain a public safety statement(s) (oral statement) from the staff that used deadly force, document the details of the oral statement in writing and submit it to the incident commander. Providing a public safety statement does not relieve the staff of the responsibility to submit a written report within 48 hours after the incident.(B) For incidents occurring in a community setting, the on-duty supervisor shall ensure local law enforcement is contacted.(3) The incident commander shall notify the OIA and the Office of the Inspector General (OIG) of any use of deadly force and every death or GBI that could have been caused by a staff use of force, no later than one hour from the time the incident is discovered.(c) Any employee who observes a use of force that is unnecessary or excessive shall attempt to stop the violation. Any employee who becomes aware of an allegation of unnecessary or excessive use of force, whether it occurs during a reportable incident or not, shall verbally report the allegation to a custody supervisor as soon as possible, followed by the submission of the appropriate documentation.(d) Video Recording Requirements.(1) A video recording is required for all Controlled Uses of Force occurrences. A video recording of the inmate is also required following a use of force occurrence resulting in SBI or GBI to the inmate and shall be documented on a CDCR Form 3013-1 (Rev. 10/15), Inmate Interview for GBI and SBI Worksheet and a CDCR Form 3014 (Rev. 10/15), Report of Findings--Inmate Interview, which are hereby incorporated by reference.(2) A video recording of the inmate shall be made when the inmate has made an allegation of an unnecessary or excessive use of force and shall be documented on a CDCR Form 3013-2 (Rev. 10/15), Inmate Interview for Allegation Worksheet and a CDCR Form 3014 (Rev. 10/15), Report of Findings--Inmate Interview, which are hereby incorporated by reference.(3) When required by subsections 3268.1(d)(1)-(2), a video-recorded interview shall be conducted no later than 48 hours from discovery of the injury or allegation.(e) Reviewing Use of Force Requirements. (1) For reported incidents, a good faith effort must be made at all levels of review in order to reach a judgment whether the staff's actions prior to, during, and subsequent to the force used was in compliance with regulations, procedure and applicable law and determine if follow-up action is necessary.(2) Use of Force levels of review include the following:(A) Incident Commander Review, CDCR Form 3010 (Rev. 10/15), Incident Commander's Review/Critique Use of Force Incidents.(B) First Level Manager Review, CDCR Form 3011 (Rev. 10/15), Manager's Review--First Level Use of Force Incidents, which is hereby incorporated by reference.(C) Second Level Manager Review, CDCR Form 3012 (Rev. 10/15), Manager's Review--Second Level Use of Force Incidents, which is hereby incorporated by reference.(D) Use of Force Coordinator Review. The Use of Force Coordinator shall schedule all logged use of force cases for review within 60 calendar days of their logged occurrence. The Use of Force Coordinator shall document their review on a CDCR Form 3034 (Rev. 10/15), IERC Allegation Review, and a CDCR Form 3036 (Rev. 10/15), IERC Critique and Qualitative Evaluation, which are hereby incorporated by reference.(E) Institutional Executive Review Committee (IERC). Normally, the IERC is comprised of the following staff: 1. Institution Head or Chief Deputy Warden, as chairperson and final decision maker.2. At least one other manager assigned on a rotational basis.3. In-Service Training Manager.4. One health care practitioner or clinician.5. A Use of Force Coordinator.6. Other designated supervisors and rank and file staff may also attend, as determined by the Institution Head. A representative of the OIG may also attend and monitor IERC meetings.(F) The IERC shall meet to review its cases on at least a monthly basis, or on a schedule to ensure all cases are reviewed within 60 calendar days. If the IERC determines, during their review, a potential use of force violation occurred, the incident shall be referred to the Allegation Investigation Unit (AIU) for an investigation. Once an incident is referred to AIU, the 60 calendar day timeframe shall be tolled and shall resume after the incident is forwarded to the Hiring Authority for final determination. The IERC shall document their review on a CDCR Form 3035 (Rev. 10/15), IERC Use of Force Review & Further Action Recommendation, which is hereby incorporated by reference.1. During the initial incident review, IERC may pause the review for additional information or clarification. If the incident review is paused, IERC shall re-review the incident package within 30 calendar days of the initial IERC meeting.(G) Department Executive Review Committee (DERC).(f) Investigating Deadly Force and Any Use of Force that could have caused Death or Great Bodily Injury. (1) Every use of deadly force (except those meeting the criteria set forth in 3268.3 (f)(1)) and every death or GBI that could have been caused by a staff use of force shall be investigated by the Deadly Force Investigation Team (DFIT) and reviewed by the Deadly Force Review Board (DFRB).(2) DFIT shall conduct criminal and administrative investigations of every death or GBI that could have been caused by a staff use of force and every use of deadly force, except those meeting the exceptions listed in subsections 3268.3 (f)(1) (D), (E), or (F)., the lawful discharge of a firearm during weapons qualifications or firearms training, or other legal recreational uses of a firearm.(3) DFRB shall conduct a full and complete review of all incidents involving a use of deadly force (except those meeting the exceptions listed in subsections 3268.3 (f)(1)(D), (E), or (F).) and every death or GBI that could have been caused by a staff use of force, regardless of whether the incident occurs in an institutional or community setting.(g) Use of Force Joint Use Committee (JUC). The Use of Force JUC shall review and evaluate recommended revisions to the CDCR's Use of Force Regulations and Procedures. The JUC shall be comprised of the following field staff:(1) At least one Institution Head, as chairperson,(2) At least one staff member from each DAI mission-based region, at the level of Lieutenant or Captain,(3) At least one Use of Force Coordinator,(4) At least three representatives from the California Correctional Peace Officer Association (CCPOA), as designated by the CCPOA,(5) The Chief of OIG, or designee, and(6) Others as needed and assigned by the Deputy Director, DAI. The JUC shall meet quarterly as necessary, but not less than annually, to review recommended revisions.
Cal. Code Regs. Tit. 15, § 3268.1
1. New 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 HISTORY 1 (Register 99, No. 24).
3. Certificate of Compliance as to 4-1-99 order, including amendment of subsections (a)(1) and (b)(2), transmitted to OAL 9-8-99 and filed 10-20-99 (Register 99, No. 43).
4. Amendment of section heading, 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 subsections (a)(1)-(2), (d)(1)-(2), (e)(2)(A)-(e)(2)(E)4. and (e)(2)(E)7. 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 section, 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 heading and section 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. Amendment of subsection (e)(2)(D), renumbering and amendment of subsection (e)(2)(E)7. to (e)(2)(F), new subsection (e)(2)(F)1. and renumbering of subsection (e)(2)(F) to (e)(2)(G) filed 8-21-2023; operative 10-1-2023 (Register 2023, No. 34). Note: Authority cited: Section 5058, Penal Code. Reference: Sections 196, 835a, 2651, 2652 and 5054, Penal Code; Section 50, Civil Code; and Madrid v. Cate (U.S.D.C. N.D. Cal. C90-3094 TEH).
1. New 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 subsections (a)(1) and (b)(2), transmitted to OAL 9-8-99 and filed 10-20-99 (Register 99, No. 43).
4. Amendment of section heading, 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 subsections (a)(1)-(2), (d)(1)-(2), (e)(2)(A)-(e)(2)(E)4. and (e)(2)(E)7. 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 section, 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 heading and section 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. Amendment of subsection (e)(2)(D), renumbering and amendment of subsection (e)(2)(E)7. to (e)(2)(F), new subsection (e)(2)(F)1. and renumbering of subsection (e)(2)(F) to (e)(2)(G) filed 8-21-2023; operative 10/1/2023 (Register 2023, No. 34).