Nevada Department of Corrections Use Of Force Method & Overview Administrative Regulation 405 1

Preamble to Use of Force It is the intent of the Nevada Department of Corrections that all staff recognize the value of human life, respect basic human rights & have an intolerant attitude towards abusive or excessive force used on inmates. An officers use of force shall be value driven, utilizing only the minimal amount of force that is necessary & reasonable under the circumstances to minimize the chance of harm to themselves or others, to prevent escapes, to protect state property from destruction, to prevent or quell a disturbance or compel compliance to lawfully issued orders. 2

Purpose To become thoroughly proficient in the knowledge of Use of Force and the application of the legal and appropriate levels of force. 3

Instructional Goal The instructional goal of this power point is to make officers proficient in the knowledge & application of the legal, ethical & moral considerations of authorized force, when it is used, up to and including deadly force in regards to their duties as officers employed by the Nevada Department of Corrections. 4

Performance Objectives Upon completion of this instruction, the student will be able to pass a written exam at or above 80% on the following: Identify the elements necessary for an officer to use non- deadly force. Identify the elements necessary for an officer to use deadly force. Identify the process of de-escalation 5

Performance Objectives Define “force” as it applies to Nevada peace officers Define “reasonable force” as it applies to Nevada peace officers Define “deadly force” as it applies to Nevada peace officers Define “constructive force” as it applies to Nevada peace officers Define “intervening force” as it applies to Nevada peace officers Define “excessive force” as it applies to Nevada peace officers Define “sudden in custody death” as it pertains to Use of Force 6

Performance Objectives Identify an officers authority during a legal arrest including a peace officers authority to use restraints during a detention or arrest Identify the circumstances set forth in the Nevada Revised Statutes under which a peace officer has authority to resort to the use of force Define how the case “Tennessee v. Garner” applies to the use of deadly force Define how the case “Graham v. Conner” applies to the objective to the objective reasonableness Define “negligence” as it applies to Nevada peace officers 7

Performance Objectives Define “imminent danger” as it applies to Nevada peace officers Define “reasonable belief” as it applies to Nevada peace officers Define “serious physical harm” as it applies to Nevada peace officers Define “vicarious liability” as it applies to Nevada peace officers Identify the point at which the use of force must be discontinued 8

Performance Objectives Identify the action that is to be taken in relation to the offenders health and welfare after the force has been used Identify the consequences of the illegal use of force pursuant to the United States Code. (civil rights act) Identify the consequences of the illegal use of force pursuant to the Nevada Revised Statutes Identify the consequences of the illegal use of force pursuant to Title 18 of the United States Code Define “spontaneous force” as it applies to NDOC officers Define “planned/calculated force” as it applies to NDOC officers 9

Performance Objectives Define “threat’ as it applies to Nevada peace officers Define & understand AR 405 as it applies to officers of the NDOC Identify the chemical agents that are authorized and how they are utilized in a use of force situation per AR 405 and AR

What is Force? Force - Force - Any violence, compulsion, or constraint physically exerted by any means upon or against a person. Deadly Force – Deadly Force – Any force that carries a substantial risk that will possibly result in death of a person. Excessive Force – Excessive Force – Any act of force in excess of what it takes to subdue a resisting inmate and/or to move a resisting inmate to a secure location. 11

What is Force? Reasonable Force - Reasonable Force - Lawful force that is reasonably necessary to accomplish a particular end. Constructive Force – Constructive Force – The use of threats or intimidation for the purpose of gaining control over or preventing resistance from another. Intervening Force – Intervening Force – A force that acts after another's negligent act or omission has occurred and that causes injury to another. 12

What is Force Passive Resistive (Force) Passive Resistive (Force) – resistance or refusal to lawful orders or policies made without violence. Examples: as by fasting, sit downs protests, dead weighting the body, tightening the muscles of the body, etc. 13

Types of Force Encountered in the NDOC Spontaneous Force Spontaneous Force - arising from impulse: arising from natural impulse or inclination, rather than from planning or in response to suggestions from others. All uses of force will be recorded in accordance with AR 405 (section ). Example: Inmate assaults a staff member & the staff uses approved NDOC Use of Force techniques to repel the assault, regain control & restrain the inmate. 14

Types of Force Encountered in the NDOC Planned (calculated) Force - a scheme or method of acting, doing, proceeding, making, etc., developed in advance. All planned uses of force will be documented in accordance with AR 405 (section , & ). Example: Inmate barricades him/herself in a cell. A cell extraction team plans how to effectively & safely extract the inmate from the cell using the NDOC approved extractions techniques. 15

Use of Force Against a “Threat” In Tennessee v. Garner and Graham v. Conner the Supreme Court stated an officer must consider the “Immediate Threat” to the officer or others when using force. In training, we want to instill in the officer that he/she is only justified in using force if the suspect/inmate is a “Threat” or “Immediate Threat” to the officer or others. In a trial, we want to inform the jury that officers are trained to refer to the suspect/inmate as the “Threat” to condition the officer only to use force on a suspect/inmate when the suspect or inmate is a threat to the officer or others. 16

Threat Defined by NRS NRS Threats. A person who, with the intent to extort or gain any money or other property or to compel or induce another to make, subscribe, execute, alter or destroy any valuable security or instrument or writing affecting or intended to affect any cause of action or defense, or any property, or to influence the action of any public officer, or to do or abet or procure any illegal or wrongful act, whether or not the purpose is accomplished, threatens directly or indirectly: 1. To accuse any person of a crime; 2. To injure a person or property; 3. To publish or connive at publishing any libel; 4. To expose or impute to any person any deformity or disgrace; or 5. To expose any secret, is guilty of a category B felony and shall be punished by imprisonment in the state prison for a minimum term of not less than 1 year and a maximum term of not more than 10 years, or by a fine of not more than $10,000, or by both fine and imprisonment. In addition to any other penalty, the court shall order the person to pay restitution. [1911 C&P § 474; RL § 6739; NCL § 10423]—(NRS A 1967, 502; 1979, 1445; 1995, 1223)1995,

When Force May Be Used in Accordance with AR 405 To protect the safety of oneself or others from harm To prevent escape To prevent destruction of state property To compel compliance with lawful orders To prevent or quell a disturbance 18

Definitions Reasonable Belief Reasonable Belief – Has “reasonable cause to believe” if, in light of all the surrounding facts and circumstances which are known or which reasonably should be known to the person at the time, a reasonable person would believe, under those facts and circumstances, that an act, transaction, event, situation or condition exists, is occurring or has occurred. 19

As Defined by NRS NRS Arrest defined; by whom made. An arrest is the taking of a person into custody, in a case and in the manner authorized by law. An arrest may be made by a peace officer or by a private person. (Added to NRS by 1967, 1400) 20

Officers authority during arrest including use of restraints NRS Arrest by peace officer or officer of Drug Enforcement Administration. 1. Except as otherwise provided in subsection 3 and NRS , and , a peace officer or an officer of the Drug Enforcement Administration designated by the Attorney General of the United States for that purpose may make an arrest in obedience to a warrant delivered to him or her, or may, without a warrant, arrest a person:NRS (a) For a public offense committed or attempted in the officer’s presence. (b) When a person arrested has committed a felony or gross misdemeanor, although not in the officer’s presence. (c) When a felony or gross misdemeanor has in fact been committed, and the officer has reasonable cause for believing the person arrested to have committed it. (d) On a charge made, upon a reasonable cause, of the commission of a felony or gross misdemeanor by the person arrested. (e) When a warrant has in fact been issued in this State for the arrest of a named or described person for a public offense, and the officer has reasonable cause to believe that the person arrested is the person so named or described. 2. A peace officer or an officer of the Drug Enforcement Administration designated by the Attorney General of the United States for that purpose may also, at night, without a warrant, arrest any person whom the officer has reasonable cause for believing to have committed a felony or gross misdemeanor, and is justified in making the arrest, though it afterward appears that a felony or gross misdemeanor has not been committed. 3. An officer of the Drug Enforcement Administration may only make an arrest pursuant to subsections 1 and 2 for a violation of chapter 453 of NRS.chapter 453 (Added to NRS by 1967, 1401; A 1975, 755; 1979, 834; 1983, 1651; 1985, 1171, 2022, 2170; 2001, 2850; 2003, 888; 2013, 2946)1985, , , ,

Officers authority during arrest including use of restraints NRS When arrest may be made. 1. If the offense charged is a felony or gross misdemeanor, the arrest may be made on any day, and at any time of day or night. 2. If it is a misdemeanor, the arrest cannot be made between the hours of 7 p.m. and 7 a.m., except: (a) Upon the direction of a magistrate, endorsed upon the warrant; (b) When the offense is committed in the presence of the arresting officer; (c) When the person is found and the arrest is made in a public place or a place that is open to the public and: (1) There is a warrant of arrest against the person; and (2) The misdemeanor is discovered because there was probable cause for the arresting officer to stop, detain or arrest the person for another alleged violation or offense; (d) When the offense is committed in the presence of a private person and the person makes an arrest immediately after the offense is committed; (e) When the offense charged is battery that constitutes domestic violence pursuant to NRS and the arrest is made in the manner provided in NRS ;NRS NRS (f) When the offense charged is a violation of a temporary or extended order for protection against domestic violence issued pursuant to NRS to , inclusive;NRS (g) When the person is already in custody as a result of another lawful arrest; or (h) When the person voluntarily surrenders himself or herself in response to an outstanding warrant of arrest. (Added to NRS by 1967, 1402; A 1977, 874; 1985, 6, 2023; 1991, 331; 1993, 119; 2001, 1431)1985, , , ,

Officers authority during arrest including use of restraints NRS Temporary detention by peace officer of person suspected of criminal behavior or of violating conditions of parole or probation: Limitations. 1. Any peace officer may detain any person whom the officer encounters under circumstances which reasonably indicate that the person has committed, is committing or is about to commit a crime. 2. Any peace officer may detain any person the officer encounters under circumstances which reasonably indicate that the person has violated or is violating the conditions of the person’s parole or probation. 3. The officer may detain the person pursuant to this section only to ascertain the person’s identity and the suspicious circumstances surrounding the person’s presence abroad. Any person so detained shall identify himself or herself, but may not be compelled to answer any other inquiry of any peace officer. 4. A person must not be detained longer than is reasonably necessary to effect the purposes of this section, and in no event longer than 60 minutes. The detention must not extend beyond the place or the immediate vicinity of the place where the detention was first effected, unless the person is arrested. (Added to NRS by 1969, 535; A 1973, 597; 1975, 1200; 1987, 1172; 1995, 2068)1987, ,

Officers authority during arrest including use of restraints NRS Arrest if probable cause appears. At any time after the onset of the detention pursuant to NRS , the person so detained shall be arrested if probable cause for an arrest appears. If, after inquiry into the circumstances which prompted the detention, no probable cause for arrest appears, such person shall be released.NRS (Added to NRS by 1969, 535) 24

Officers authority during arrest including use of restraints NRS Weapon may be taken from person arrested. Any person making an arrest may take from the person arrested all dangerous and offensive weapons which the person arrested may have about his or her person. (Added to NRS by 1967, 1402) 25

Officers authority during arrest including use of restraints NRS Search to ascertain presence of dangerous weapon; seizure of weapon or evidence. 1. If any peace officer reasonably believes that any person whom the peace officer has detained or is about to detain pursuant to NRS is armed with a dangerous weapon and is a threat to the safety of the peace officer or another, the peace officer may search such person to the extent reasonably necessary to ascertain the presence of such weapon. If the search discloses a weapon or any evidence of a crime, such weapon or evidence may be seized.NRS Nothing seized by a peace officer in any such search is admissible in any proceeding unless the search which disclosed the existence of such evidence is authorized by and conducted in compliance with this section. (Added to NRS by 1969, 535) 26

Circumstances Defined for Peace Officers to Use Force per NRS NRS Use of deadly force to effect arrest: Limitations. If necessary to prevent escape, an officer may, after giving a warning, if feasible, use deadly force to effect the arrest of a person only if there is probable cause to believe that the person: 1. Has committed a felony which involves the infliction or threat of serious bodily harm or the use of deadly force; or 2. Poses a threat of serious bodily harm to the officer or to others. (Added to NRS by 1993, 931)1993,

As Defined by NRS Serious Physical Harm/Substantial Bodily Harm “Serious Physical Harm/Substantial Bodily Harm” – NRS defined as: Bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement or protracted loss or impairment of the function of any bodily member or organ; or prolonged pain. 28

Definitions “Vicarious Liability” – Vicarious liability refers to liability for the negligent or criminal acts of another person that is assigned to someone by law. Vicarious liability exists when liability is attributed to a person who has control over or responsibility for another who negligently causes an injury or otherwise would be liable. Whenever an agency relationship exists, the principal is responsible for the agent's actions. – For example, an employer of an employee who injures someone through negligence while in the scope of employment is vicariously liable for damages to the injured person. 29

Definitions “Neglect”, “negligence,” “negligent” and “negligently” “Neglect”, “negligence,” “negligent” and “negligently” - import a want of such attention to the nature or probable consequences of an act or omission as an ordinarily prudent person usually exercises in his or her own business. 30

Liability The Eighth Amendment (Amendment VIII) to the United States Constitution is the part of the United States Bill of Rights prohibiting the federal government from imposing excessive bail, excessive fines or cruel and unusual punishments, including torture. The U.S. Supreme Court has ruled that this amendment's Cruel and Unusual Punishment Clause applies to the states. 31

Nevada Law In keeping with the policy of the Department of Corrections prohibiting the use of excessive force, NRS – “Inhumanity to Prisoners,” is noted as follows: In keeping with the policy of the Department of Corrections prohibiting the use of excessive force, NRS – “Inhumanity to Prisoners,” is noted as follows: 32

a.Every jailer or person who shall be guilty of willful inhumanity or oppression to any prisoner under his care or custody shall be punished: 1) Where the prisoner suffers substantial bodily harm for such inhumanity or oppression, by imprisonment in the state Prison for not less than one year nor more than six years or by a fine of not more than $5, or both fine and imprisonment 2) Where no substantial bodily harm results, a gross misdemeanor. b. Whether or not the prisoner suffers substantial bodily harm, any public officer guilty of such willful inhumanity is guilty of a maleficence of office. b. Whether or not the prisoner suffers substantial bodily harm, any public officer guilty of such willful inhumanity is guilty of a maleficence of office. 33

Title 18 United States Code Deprivation of Rights Under the Color of Law This statute makes it a crime for any person acting under color of law, statute, ordinance, regulation, or custom to willfully deprive or cause to be deprived from any person those rights, privileges, or immunities secured or protected by the Constitution and laws of the U.S. This law further prohibits a person acting under color of law, statute, ordinance, regulation or custom to willfully subject or cause to be subjected any person to different punishments, pains, or penalties, than those prescribed for punishment of citizens on account of such person being an alien or by reason of his/her color or race. Acts under "color of any law" include acts not only done by federal, state, or local officials within the bounds or limits of their lawful authority, but also acts done without and beyond the bounds of their lawful authority; provided that, in order for unlawful acts of any official to be done under "color of any law," the unlawful acts must be done while such official is purporting or pretending to act in the performance of his/her official duties. This definition includes, in addition to law enforcement officials, individuals such as Mayors, Council persons, Judges, Nursing Home Proprietors, Security Guards, etc., persons who are bound by laws, statutes ordinances, or customs. Punishment varies from a fine or imprisonment or both, and if bodily injury results or if such acts include the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire shall be fined or imprisoned up to ten years or both, and if death results, or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill, shall be fined. 34

Tennessee vs Garner (Use of Deadly Force on a Fleeing Felon) Where the officer has probable cause to believe the suspect poses a threat of serious physical harm, either to the officers or to others, it is not constitutionally unreasonable to prevent escape by using deadly force. This if the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape, and if, where feasible, some warning has been given. 35

Graham vs Conner (Objective Reasonableness Standard) The level of force that is necessary in a particular situation. The reasonableness of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight. The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split second judgments-in circumstances that are tense, uncertain, and rapidly evolving-about the amount of force that is necessary in a particular situation. The reasonableness inquiry in an excessive force case is an objective one: the question is whether the officers’ actions are objectively reasonable in light of the facts & circumstances confronting them, without regard to their underlying intent or motivation. 36

Elements of Non Deadly or Deadly Force Ability or apparent ability Ability or apparent ability Opportunity Opportunity Jeopardy Imminent Jeopardy Jeopardy (non-deadly) or Imminent Jeopardy (deadly) Preclusion Preclusion 37

Ability or Apparent Ability Does the violator/inmate possess the ability or the apparent ability to kill you or a third party, or to cause you or a third party great bodily harm? Does the violator/inmate possess the ability or the apparent ability to kill you or a third party, or to cause you or a third party great bodily harm? 38

Opportunity Does the violator/inmate have the opportunity to kill you or a third party, or cause you or a third party great bodily harm? Does the violator/inmate have the opportunity to kill you or a third party, or cause you or a third party great bodily harm? 39

Jeopardy/Danger Based on all facts & circumstances confronting the officer and without regard to the officers underlying intent or motivation, the officer reasonably believes that the subject poses a threat to the life of the officer(s) or other third parties and the must act to prevent death or serious bodily injury. 40

Imminent Jeopardy/Danger Based on all facts & circumstances confronting the officer and without regard to the officers underlying intent or motivation, the officer reasonably believes that the subject poses an immediate threat to the life of the officer(s) or other third parties and the must act immediately to prevent death or serious bodily injury. 41

Preclusion Have you reasonably exhausted all of your avenues of retreat at that time and at that place? Was there the feasibility or availability of alternative actions? Have you reasonably exhausted all of your avenues of retreat at that time and at that place? Was there the feasibility or availability of alternative actions? 42

Non-Deadly Force Equipment Less than lethal weapon NAC “Less than lethal weapon” defined. (NRS ) “Less than lethal weapon” means a weapon that is designed and manufactured with the intent that it not create a substantial risk of causing death or serious bodily injury when a person with appropriate training uses the weapon in accordance with the instructions of the manufacturer.NRS “less than lethal weapons” “non-deadly force equipment” The NDOC identifies “less than lethal weapons” as “non-deadly force equipment” per AR

Factors Considered when Reviewing Use of Force Was it applied in good faith (Value Driven) Extent of the threat to the safety of staff and inmates Need for application of force Relationship between the need and the amount of force used Extent of injury inflicted 44

Confrontational Factors Officer-Subject Factors Age Sex Size Skill Level Multiple OfficersSpecial Circumstances Multiple SubjectsClose Proximity to Firearm Relative Strength Special Knowledge Special ability Injury or exhaustion Ground Disability Imminent Danger Distance from subject Availability of other options 45

Sudden in Custody Death Sudden in Custody Death positional asphyxiapostural asphyxia “Sudden in Custody Death” is a result of positional asphyxia, also known as postural asphyxia. It is a form of asphyxia which occurs when someone's position prevents the person from breathing adequately. A significant number of people die suddenly during restraint by police, prison (corrections) officers and health care staff. asphyxiapositionbreathingpoliceprisonhealth care 46

Sudden in Custody Death Positional asphyxia Positional asphyxia may be a factor in some of these deaths Positional asphyxia Positional asphyxia is a potential danger of some physical restraint techniques 47

Sudden in Custody Death positional asphyxia People may die from positional asphyxia by simply getting themselves into a breathing- restricted position they cannot get out of, either through carelessness or as a consequence of another accident. Risk factors which may increase the chance of death include obesity, prior cardiac or respiratory problems, and the use of illicit drugs such as cocaine. 48

Use of Force Method 1. O fficer Presence 2. V erbal Commands 3. C ontrol and Restraint 4. hemical Agents 5. T emporary Incapacitation 6. D eadly Force 49

Officer Presence Display of Force Option Body Language/Demeanor Identification of Authority 50

Verbal Communication Direct Orders Questioning Persuasion Blank 12 Gauge Round (popper) 51

Physical Control & Restraint Escort Position Directional Contact Joint Locks/Control Digital Control Pressure Points Takedowns Strikes The routine use of physical restraints (handcuffs, leg irons, soft restraints, spit hoods) as a security measure, are not considered a use of force per AR 405 (405.01). 52

Chemical Agents Authorized chemical/inflammatory agents by the NDOC per AR are: OC CS Pepper/Mace Smoke Chemical Munitions Any and other chemicals as approved by the Director 53

Temporary Incapacitation TASER (conducted electrical weapon) Electronic Stun Shields Electronic Stun belts Batons, PR-24 or other similar weapons Pepper Balls Launchers Specialty Munitions & Distraction Devices 54

Deadly Force Remington 870 with double-ought (00) rounds or slugs. Mini caliber rifle with 55 grain soft point rounds. 40 Caliber Glock semi-automatic handgun with 180 to 185 grain rounds – approved through FBI protocol/specifications. Specialized weapons may be authorized for emergency situations with approval from the Director/designee. 55

If in doubt? If doubt exists in the Department’s peace officer’s or designated employee’s mind as to whether they should discharge the weapon/firearm under the circumstances that have been outlined, they should conclude that they WILL NOT discharge the weapon/firearm 56

Circle of Force Method Officer Verbal Control Restraint Chemical Agent Temporary Incapacitation Deadly Presence 57

Discontinuing or De-escalation of Force Officer(s) shall modify their level of force in relation to the amount of resistance offered by the offender(s). As the offender(s) offers less resistance the officer(s) shall lower the amount or type of force used. Conversely, if resistance escalates, officer(s) are authorized to respond in an objectively reasonable manner to gain compliance from the resisting offender(s). Once the offender(s) has completely ceased resisting or has been restrained & is compliant, the use of force by the officer(s) will be discontinued. 58

Medical Care After Use of Force Inside of the Facility Medical care which includes examinations & treatments will be conducted by institutional medical staff when a use of force incident has occurred within the facility. When order has been restored, the offender(s) who has been subjected to physical use of force will be examined by medical staff & all injuries documented. All refusals will be documented and included in the use of force reports utilizing the NDOC Form 2523 (Refusal of Medical Treatment). Any staff member involved in any use of force will also be examined, treated & all injuries documented. 59

Medical Care After Use of Force Outside of the Facility When a use of force outside of the institution occurs & the distance to a NDOC facility may pose a substantial risk to the inmates health/welfare, the inmate will be transported to the nearest secured facility for examinations & treatment. If a secured facility refuses or one is not feasibly located, EMS, local law enforcement & the institution will be notified & standard inmate transportation procedures (AR 432) will be utilized. 60