CDCR - State of Emergency
CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION
STATEMENT OF EMERGENCY
Subject: Use of Force
NOTICE IS HEREBY GIVEN that the California Department of Corrections and Rehabilitation, Division of Juvenile Justice (DJJ) proposes to readopt, on an emergency basis, sections 4034.0, 4034.1, 4034.2, 4034.3, and 4034.4 and repeal sections 4036.0 and 4040.0 of Title 15, Division 4, Chapter 1, Article 3 of the California Code of Regulations (CCR) pertaining to force used by Correctional Peace Officers to subdue an attacker, overcome resistance, effect custody, or gain compliance with a lawful order.
Welfare and Institutions Code Section 1712 assigns responsibility to the California Department of Corrections and Rehabilitation, Division of Juvenile Justice to make and enforce all rules appropriate to the proper accomplishment of the functions of the DJJ. Authority cited: Sections 1712 and 1752, Welfare and Institutions Code; Section 830.5, Penal Code.
This action is proposed to implement, interpret, and/or make specific Section 1752 of the Welfare and Institutions Code; Sections 147, 149, 830.5, 835, and 843 of the California Penal Code; Article I, Section 17, of the California Constitution; and Bill of Rights, Amendment VIII, United States Constitution.
Finding of Emergency
The DJJ finds that an emergency still exists and the re-adoption of sections 4034.0, 4034.1, 4034.2, 4034.3 and 4034.4; and the repeal of sections 4036.0 and 4040.0 are still necessary for the immediate preservation of the public peace, health and safety or general welfare.
During the 45-day comment period, the DJJ received substantial comments from the Prison Law Office, the Youth Law Center and the California Correctional Peace Officers Association. The DJJ has been working with the aforementioned to modify the regulation text to resolve concerns expressed by each of these entities. The DJJ has also been working with court appointed experts in our efforts to comply with the Courts’ order as explained below. The DJJ requires additional time to reach consensus. However, there is agreement that it is critical that the regulations do not revert back to what existed prior to the approval and adoption of the previous emergency regulation filing.
The DJJ regulations preceding the adoption of the emergency filing pertaining to the use of force do not sufficiently provide employees with clear guidelines and are not consistent with policies the DJJ has implemented in an effort to comply with the court order specified in the Farrell vs. Allen Consent Decree and again in the January 31, 2005 Court Stipulation.
Providing clear guidelines to DJJ staff in the use of force is critical. Failure by the DJJ to make specific “use of force” regulations increases the risk of violence and will continue to result in serious injuries and/or even the death of wards, parolees, and/or staff as explained below.
The DJJ intends that these amendments take effect as soon as possible, on an emergency basis, to allow the DJJ sufficient time to consider amending the regulation text as recommended by the above entities at which time the DJJ will move forward to make the regulations permanent under the appropriate procedures.
Statement of Emergency Facts
In December 2003, expert Barry Krisberg, Ph.D. issued a report on existing conditions within DJJ institutions pertaining to the physical safety of wards and the excessive use of force by DJJ staff. This review was completed at the request of the California Attorney General and the DJJ in response to federal and state court lawsuits filed by the Prison Law Office.
As part of the review process, Mr. Krisberg reviewed current and draft policies, reviewed policy manuals, conducted intensive visits to institutions, and conducted interviews with both DJJ staff and wards. Mr. Krisberg’s findings were as follows:
- During ward interviews, several wards showed injuries they claimed were the result of the use of force by staff.
- There is considerable variability in reporting across the DJJ institutions concerning the use of force by staff. Each of the institutions used different categories for reporting either violent incidents or the use of force.
- In the first four months of 2003, at the Herman G. Stark (HGS) facility alone, chemical restraints were used 535 times, physical restraints were used 109 times and mechanical restraints were used 236 times. Pepper balls were used 10 times. At Fred C. Nelles there were 274 reports of use of force mostly involving chemical restraints. According to Nelles administrators, none of these situations involved “unnecessary or excessive” use of force. However, these terms are only generally defined in DJJ policies. El Paso Robles had 237 reports of use of force averaging 1.1 incidents of macing in a day.
- Ward complaints over safety and excessive force also appeared in grievances filed by wards.
- Suspicions that DJJ staff engaged in the use of excessive force were found to be well grounded in a number of audits and investigations conducted by the Office of Inspector General.
- Documented use of dangerous and potentially fatal high-powered weapons that delivered chemical agents. These chemical restraints were designed to be used by correctional staff to quell riots that broke out in prison yards, but DJJ staff were using these same powerful chemical agents during extraction of wards from their rooms and other secure areas. Since these powerful chemical agents absorbed the oxygen in the small wards rooms, there were real dangers that DJJ wards could be asphyxiated. The OIG also found instances where wards received severe burns to their skin because they were not permitted timely access to shower after being sprayed.
- Documented physical abuse where wards were made to spend long periods of time on their knees with their hands bound behind them in mechanical restraints. In some cases the wards were made to kneel on sharp surfaces that increased their discomfort. This practice was called “Gym TD” by staff. Other wards were made to strip down to their boxer shorts and were forced to sleep on cement slabs in very cold rooms. Some staff also struck the wards during these situations.
- Staff routinely yelled, in close proximity of wards faces, attempting to elicit a physical response that would lead to disciplinary write-ups, the use of temporary detention, or the escalation to the use of chemical restraints. Few correctional experts would defend these practices. DJJ staff did not deny that these verbal exchanges took place.
- Force is used by DJJ primarily in connection with stopping ward-on-ward fights in curtailing group disturbances. However, force is also used with extraction or removal of wards from secure areas, principally their rooms. These events often entail significant risks of injury to both staff and wards.
- A relatively new DJJ policy requires that all of these extractions be videotaped. After reviewing a random number of these videotapes, it was often difficult to understand the necessity to escalate the use of force. A very typical scenario involved a ward that refused to come to the door to be handcuffed. Another apparent reason for a secure area extraction was a ward that had placed a towel or paper over the door window. Often, as the DJJ staff would open the door for the first use of chemicals, these window blockages would be pulled down, however, the extraction would continue until the ward submitted to being placed in mechanical restraints. There is no doubt the DJJ staff must aggressively intervene in situations in which ward safety is a major consideration. However, it is not clear that the secure area extractions are always warranted or if some lower level of force, including attempting a sustained conversation with the ward might not produce a better result with less risk to staff and wards. These secure area extractions are perceived by staff and wards as contests of will.
- Wards created disturbances in their rooms as a method of getting staff to respond to a concern or need such as requesting a new toothbrush from the YCO on duty or experiencing an emotional crisis after receiving bad news from their family.
- The DJJ suffers from serious problems of violence in its institutions. The climate of violence has engendered high levels of fear among wards and staff that affect virtually all aspects of daily operations. These tensions produce an extensive use of force, especially chemical agents. Further, the DJJ staff mostly rely on a reactive response to the violence, involving the use of the Disciplinary Decision Making System (DDMS) and the resort to extensive use of restrictive programs and temporary lockdowns. The DJJ must rely on the aggressive pursuit of its policies by the institutional superintendents to reduce the use of excessive force.
- It is abundantly clear from a wide range of information collected as part of the review, that the DJJ is a very dangerous place, and that neither staff nor wards feel safe in it’s facilities.
In November 2004, the Superior Court of California in Farrell v. Allen (now Tilton), County of Alameda, Case No. RG 03079344, issued orders in a Consent Decree under which the DJJ agreed to develop and implement a comprehensive remedial plan that would reduce violence and the need for the use of force within the DJJ. Use of force deficiencies were identified under the General Corrections Remedial Plan which has since been renamed the Ward Safety and Welfare Remedial Plan. In addition to this provision, the Consent Decree required the DJJ to implement by December 15, 2004: 1) new policies and procedures to eliminate use of room extractions and chemical agents; 2) training of appropriate staff on the new policies and procedures; 3) training of appropriate correction and clinical staff on the use of non-violent offender techniques; and 4) the use of de-escalation techniques to defuse planned uses of force by staff involving potentially violent confrontations with wards.
In January 2005, the parties stipulated to extend the date for filing the Ward Safety and Welfare Remedial Plan until November 30, 2005. The parties agreed the DJJ had implemented interim measures to address some of the deficiencies identified in the December 2003 report prepared by the Consent Decree expert, Barry Krisberg, Ph.D., but still needed to take further specified “interim” actions pending completion of the remedial plan.
In April 2006, Special Master Donna Brorby filed a report with the court regarding DJJ’s compliance with the provisions of the Consent Decree and the January 31, 2005 Stipulation.
The Special Master reported little change in the DJJ’s use of force incidents. The use of force remains pervasive in the DJJ. Though staff had been trained in a revised Use of Force Policy by November 2004, the new policy was still in the process of being finalized and promulgated. The DJJ issued a Temporary Departmental Order (TDO # 05-32) effective June 22, 2005 that generally incorporated the elements the parties had agreed would be included in written policy. The TDO incorporated distinctions between “immediate” and “controlled” use of force and required a deliberate process before controlled force was permitted to be employed. A more complete TDO, # 05-36, replaced TDO 05-32, as of December 1, 2005 and was reissued as TDO # 06-73 on December 1, 2006. Even the most recent policy document is incomplete in that it refers to policies and regulations that are in the process of being developed.
The Ward Safety and Welfare Remedial Plan was filed with the Superior Court of California, County of Alameda on July 10, 2006 and included but was not limited to revising the existing Use of Force policy to:
- Distinguish immediate uses of force to protect persons and prevent harm;
- Add a centralized force review process; and
- Implement a contemporaneous use of force reporting process for all employee participants and witnesses.
Section 147 of the Penal Code specifies that every officer who is guilty of willful inhumanity or oppression toward any prisoner under his care or in his custody is punishable by fine and by removal of office. Without adopting regulations that clearly define the differences between reasonable and excessive force, under what circumstances it is permitted, and how it is to be applied, the DJJ is unable to hold Correctional Peace Officers employed by the DJJ accountable for their actions when deploying force and youth are at risk every day of serious injury or even death.
Informative Digest/Policy Statement Overview
Section 19 of the Welfare and Institutions Code (WIC) states that it is the purpose of the WIC, in establishing programs and services which are designed to provide protection, support or care of children, to provide protective services to the fullest extent deemed necessary by the juvenile court, probation department or other public agencies designated by the board of supervisors to perform the duties prescribed by this code to ensure that the rights or physical, mental or moral welfare of children are not violated or threatened by their present circumstances or environment.
Section 202 (b) of the WIC establishes that minors under the jurisdiction of the juvenile court as a consequence of delinquent conduct shall, in conformity with the interests of public safety and protection, receive care, treatment, and guidance that is consistent with their best interest, that holds them accountable for their behavior, and that is appropriate for their circumstances. This guidance may include punishment that is consistent with the rehabilitative objectives of this chapter.
Section 202 (e) of the WIC defines "punishment" as the imposition permissible of sanctions and includes commitment of the minor to the DJJ.
Section 1004 of the WIC establishes that the DJJ shall have charge of the persons committed to or confined in DDJ institutions and shall provide for their care, supervision, education, training, employment, discipline, and government. The DJJ shall exercise its powers toward the correction of their faults, the development of their characters, and the promotion of their welfare.
Section 1700 of the WIC establishes that the purpose of the DJJ is to protect society from the consequences of criminal activity and to that purpose, community restoration, victim restoration, and offender training and treatment shall be substituted for retributive punishment and shall be directed toward the correction and rehabilitation of young persons who have committed public offenses.
Section 1710 (b) (2) of the WIC further states that the purpose of the DJJ is to provide comprehensive training, treatment, and rehabilitative services to youthful offenders under the jurisdiction of the department, that are designed to promote community restoration, accountability to victims and to produce youth who become law-abiding and productive members of society, consistent with the purposes set forth in Section 202.
Section 1712 (b) of the WIC states that commencing July 1, 2005, the Secretary is authorized to make and enforce all rules appropriate to the proper accomplishment of the functions of the Division of Juvenile Facilities, Division of Juvenile Programs, and Division of Juvenile Parole Operations.
Section 830.5 of the Penal Code identifies any employee of the DJJ having custody of wards as a peace officer and provides that their authority extends to any place in the state while engaged in the performance of the duties of their respective employment and for the purpose of carrying out the primary function of their employment or as required under Sections 8597, 8598, and 8617 of the Government Code.
Section 835 (a) of the Penal Code identifies peace officer responsibilities when using reasonable force and states that any peace officer who has reasonable cause to believe that the person to be arrested has committed a public offense may use reasonable force to effect the arrest, to prevent escape or to overcome resistance. Section 835 (a) further states that a peace officer who makes or attempts to make an arrest need not retreat or desist from his efforts by reason of the resistance or threatened resistance of the person being arrested; nor shall such a peace officer be deemed an aggressor or lose his right to self-defense by the use of “reasonable force” to effect the arrest or to prevent escape or to overcome resistance.
Section 298.1 (c) (1) (A) of the Penal Code defines the term “use of reasonable force” as the force that an objective, trained and competent correctional employee, faced with similar facts and circumstances, would consider necessary and reasonable to gain compliance. Although Section 298.1 pertains to the refusal or failure to give a blood specimen, saliva sample, or thumb or palm print impression which are mandated by law, the DJJ believes this is a standard definition used throughout law enforcement as well as the Commission on Peace Officer Standards and Training and proposes to adopt the definition as a standard definition that shall apply to the use of force under all circumstances.
The United States Constitution’s Bill of Rights, Amendment VIII provides that all people shall not have cruel and unusual punishments inflicted upon them.
Section 147 of the Penal Code, specifies that every officer who is guilty of willful inhumanity or oppression toward any prisoner under his care or in his custody is punishable by fine and by removal of office.
Section 149 of the Penal Code specifies that every public officer who, under color of authority, without lawful necessity, assaults or beats any person, is punishable by a fine and/or imprisonment.
Existing Section 4040.0, Article 3, Title 15 of the California Code of Regulations (CCR) pertains to the use of restraining devices on wards for security purposes in parole and institutional operations. Subsection (b) states that only reasonable and necessary force shall be used but does not define what is meant by “reasonable” or “necessary”. Therefore, the DJJ believes Section 4040.0 should be repealed and proposes to adopt new regulations that are consistent with the orders issued by the Court.
The proposed regulations are intended to specify and identify the circumstances as well as the amount of force that an objective, trained, and competent Correctional Peace Officer, faced with similar facts and circumstances, would consider necessary and reasonable, as prescribed by the Commission on Peace Officer Standards and Training, to subdue an attacker, overcome resistance, effect custody, or gain compliance with a lawful order. The proposed regulations are also intended to establish supervision, monitoring, and evaluation of force deployment.
The specific purpose of adopting Section 4034.0 is to establish a Use of Force Policy under which the DJJ shall operate. The proposed regulations specify force shall be used only when reasonably necessary to subdue an attacker, overcome resistance, effect custody, or to gain compliance with a lawful order. At no time shall any DJJ staff use force against a ward for punishment, retaliation, or discipline.
The specific purpose of adopting Section 4034.1 is to define the terms “reasonable force”, “unnecessary force”, “excessive force”, “non-deadly force”, “great bodily injury” and “deadly force” as they apply to force used by DJJ staff to subdue an attacker, overcome resistance, effect custody, or gain compliance with a lawful order.
The specific purpose of adopting Section 4034.2 is to establish “use of force options”, and the proper use there of, available to DJJ staff. The proposed regulations define use of force options as the choices available to an employee when selecting a reasonable force option. The choices include but are not limited to: dialogue or verbal persuasion, chemical agents, physical strengths and holds, mechanical restraints, less-lethal weapons, and firearms. Employees may use reasonable force as required in the performance of their duties, but unnecessary or excessive force shall not be used. If staff, at any point, determines the situation can be resolved without any further use of force, staff shall terminate the use of force. Section 1700 of the Welfare and Institutions Code establishes that community restoration, victim restoration, and offender training and treatment shall be substituted for retributive punishment and shall be directed toward the correction and rehabilitation of young persons who have committed public offenses. It shall be the policy of the DJJ to accomplish the educational, treatment and supervision functions with minimal reliance on the use of force.
The specific purpose of adopting Section 4034.3 is to establish a reporting and monitoring process pertaining to any force used by Correctional Peace Officers or witnessed by staff employed by the DJJ. The proposed regulations require an employee who uses or observes force greater than verbal persuasion to document the incident by preparing and submitting the appropriate forms to his or her on-duty supervisor. The proposed regulation also establishes an Institutional Force Review Committee and a Regional Parole Force Review Committee that shall be tasked with evaluating and monitoring all use-of-force incidents to determine their appropriateness.
The purpose of adopting Section 4034.4 is to establish the use of mechanical restraints, and under what circumstances and how they shall or shall not be used. The proposed regulations permit the use of Divisionally approved mechanical restraints under certain circumstances when used in a manner consistent with the manufacturer’s instructions and DJJ policies and procedures.
The DJJ is also proposing to repeal existing Section 4036 pertaining to training requirements prior to the use of non-lethal chemical agents. Training of Correctional Peace Officers is accomplished through the Commission on Peace Officer Standards and Training. Use of chemical agents will be addressed through the regular rule making process at a later time.
Establishing specific “use of force” regulations will ensure public safety by decreasing the risk of violence that could result in serious injury and/or death of a ward, parolee, and/or staff.
The DJJ has determined that the proposed action imposes no mandate upon local agencies or school districts.
Fiscal Impact Statement
- No cost to any local agency or school district which must be reimbursed in accordance with Government Code Sections 17500 through 17630;
- No cost or savings to any state agency;
- No other non-discretionary cost or savings imposed on local agencies; and
- No cost or savings in federal funding to the state.