After Lawsuit, Department of Correction to Unveil New Use of Force Policy

The halls of the George Motchan Detention Center on Rikers Island. (Emily Assiran for Observer)

The halls of the George Motchan Detention Center on Rikers Island. (Emily Assiran for Observer) Emily Assiran/Observer

Following the settlement of a federal lawsuit that alleged a culture of violence among correction officers on Rikers Island, the Department of Correction will unveil a new use of force policy to its employees tomorrow, prohibiting certain maneuvers and encouraging officers to avoid force when possible.

“The revised policy provides our dedicated, hardworking officers with additional guidance and tools for when they are confronted with a situation in which force may be necessary, and we expect that it will support appropriate use of force and our objective to resolve situations without physical force whenever possible,” Commissioner Joseph Ponte said in a statement provided to the Observer. “The goal of the policy, as always, is safety for staff and inmates, and we thank our officers for their support of the comprehensive reforms under way at the Department.”

The policy is the result of the settlement of the lawsuit Nunez v. City of New York, originally filed on behalf of several inmates by the Legal Aid Society and eventually joined by U.S. Attorney Preet Bharara. The settlement called for the department to revise its policies within 60 days of the settlement being approved and laid out many specific requirements that are found in the new policy, which will be circulated to department staff tomorrow. The settlement also required a federal monitor to oversee Rikers, and the monitor, Steve Martin, to sign off on the use of force policy.

The new policy emphasizes the need to respond to situations without physical force whenever necessary. It restricts painfully escorting or restraining inmates without reason, and striking inmates in the groin, neck, kidneys or spinal column. It also prohibits “high-impact” force: blows to the previously mentioned areas as well as the head or face, kicking an inmate, and the use of choke holds, carotid restraint holds or neck restraints.

But there’s an exception to those prohibitions—if the staff member feels he or she, or another person, is in imminent danger of serious bodily injury and lesser means won’t work, the staff can use any means necessary to control the situation.

The new policy also addresses certain aspects of what happens after a use of force—officers involved in a use of force cannot escort the inmate away from the scene nor can they view video footage of the incident before making their first report about it. Inmates will also be able to dictate their statements in addition to writing them. And the new directive emphasizes not provoking inmates through things like profanity or slurs, public humiliation, or instigating inmate-on-inmate violence.

Senior staff has already been briefed on the policy, which will go out department-wide tomorrow and goes into effect November 20. All staff will receive an 8-hour training in the policy within the next year, which meets the requirement set out in Nunez, and staff will get an annual 4-hour refresher course.

The department said the policy was drafted with input from stakeholders, including union officials, but that’s not how Norman Seabrook, the outspoken president of the Correction Officers Benevolent Association, framed it.

“We take serious issue with the implementation of policies and procedures that involve the members of COBA when we have not been consulted or involved in any of the discussions around these guidelines,” Mr. Seabrook said in a statement.

A source close to the union said COBA was considering its legal options regarding the policy. In a letter, dated November 4, to the judge who approved the Nunez settlement, Mr. Seabrook says the settlement has the “potential” to improve Rikers Island for inmates and officers—but that it is not slated to be implemented in a “rational fashion.” He argued to the judge that training should occur before policies go into effect, which is not what will happen with the use of force policy. He wrote that the settlement requires officers to get clear and adequate direction on when to use force.

“Officers will not receive that direction when unanticipated incidents arise,” Mr. Seabrook wrote. “Training will provide guidance for such circumstances.”

Legal Aid attorneys who negotiated the settlement, also known as a consent decree, said they had not seen the new use of force policy—but had been extensively involved in negotiating the detailed description in the settlement of how the use of force policy should be revised.

“If the consent decree is followed, we’ll see a good policy come out of it,” attorney Mary Lynne Werlwas, among those who litigated the case, said. “But the bottom line is: the best policy is worthless if it’s not followed and it’s not implemented. If staff who violate the policy is not swiftly held accountable, then the best policy is worth nothing.”

But Sidney Schwartzbaum, the president of the Assistant Deputy Warden and Deputy Warden Association, criticized the new policy—as well as other reform efforts by Mr. Ponte.

“Use of Force directive 5006-RD will not stop violence against staff. An officer was just slashed with a weapon today,” Mr. Schwartzbaum said. “I’ve said it once if I said it 50 times. The idea of eliminating punitive segregation for 18 to 21 year olds in January is a recipe for disaster. The inmate who committed the assault was one of those young adults.”

Former Commissioner Martin Horn said the training staff for the new policy might be the hardest part. “I think the challenge will be to take this very dense, 27-page policy and make it accessible and understandable to staff in a way that doesn’t frighten them, intimidate them,” Mr. Horn said.

This is the first new use of force policy since one adopted in 2006, under Mr. Horn—which was also the result of the lawsuit against the department.

“I think people’s thinking about use of force has changed,” Mr. Horn said. “So there’s a stronger moral language in this—it tries to set it in a stronger moral context, but it still says very much the same thing.”

Mr. Horn said it is always difficult to craft a policy for the use of force, and that the department needs to strike a balance between making it clear to staff must be used sparingly, proportionally and judiciously and making it clear to officers that they won’t be “defenseless” and that “we don’t want the prisoners to run the jail.”

“The message to staff should be that they still have sufficient authority to do what they need to do if they do it appropriately,” Mr. Horn said. “And I always said to staff, ‘If you follow the policy, it will protect you like Superman’s cape. But if you go outside it, you’re committing a crime.'”

The new policy is one of many reforms made under Mr. Ponte, who has ended the use of punitive segregation, or solitary confinement, for the youngest inmates at Rikers Island and has vowed to end it for all inmates under 21 by the end of the year. Mr. Ponte also recently rolled out a 14-point plan to crack down on violence—part of which puts restrictions on visits to inmates, to the dismay of inmate of advocates. The department has also changed how it classifies inmates, and has begun holding classes aimed at “idleness reduction” to reduce the chances of inmate-on-inmate violence.

In full disclosure, Jillian Jorgensen’s father is a retired deputy warden with the New York City Department of Correction, who served at Rikers Island. He is among department leadership named in the Nunez complaint.

After Lawsuit, Department of Correction to Unveil New Use of Force Policy