Wisconsin Legislature: Register539B

This rule deletes the arbitrary recommendations for consideration in determining whether or not to conduct a search. This determination is best left to the Department's policies and procedures due to the changing circumstances and the variety of situations correctional staff encounter in today's institutions.

This rule also deletes the requirement that the security director of each correctional institution submit monthly reports to the administrator regarding seized contraband. These reports continue to be maintained at institutions and the Administrator has access to these reports on demand. To continue keeping records at DOC Central Office, in addition to the institutions, would be redundant and an unnecessary use of time and resources.

Visitors

Allows institutions the option to store visitors' personal property that may not be carried into the institution. There may be instances when visitors have too much personal property to be securely stored given minimal space and resources available.

This rule requires Warden approval for strip searches or personal searches of visitors.

Persons under the Influence of Intoxicating Substances

Occasionally, visitors are found with drugs, or become disruptive due to apparent influence of intoxicating substances. The Warden currently has statutory authority to arrest and detain under sec. 301.29(2) Wis. Stats. In practice, the Department does not have arresting protocols and therefore handles these procedures through law enforcement. This rule allows the Warden to deny a visit and to detain a visitor and inform law enforcement if the visitor appears to be under the influence of an intoxicating substance. This rule also allows the Warden to detain staff members, and to notify law enforcement, who appear to be under the influence of an intoxicating substance.

Text of Rule

DOC 306.01 Applicability and purpose. Pursuant to authority vested in the department by ss. 301.02, 301.03 (2), 302.07 and 227.11 (2), Stats., the department adopts this chapter for purposes of establishing security standards and practices at state correctional institutions.

DOC 306.02 Definitions. In this chapter:

(1) “Administrator" means the administrator of the division or designee.

(2) “Authority" means the highest-ranking individual available in the institution, based on the written institution line of succession.

(3) “Bodily injury" means physical injury, illness, or any impairment of physical condition.

(4) “Deadly force" means force which the user reasonably believes will create a substantial risk of causing death or great bodily injury to another.

(5) “Department" means the department of corrections.

(6) “Disciplinary hearing" means a hearing authorized under ch. DOC 303 for the disciplining of inmates for misconduct.

(7) “Disturbance" means any of the following:

(a) An assault on any person by 2 or more inmates.

(b) The taking of a hostage by an inmate.

(d) The refusal by 2 or more inmates, acting in concert, to comply with an order.

(e) Any words or acts which incite or encourage inmates to do any of the above.

(8) “Division" means the division of adult institutions, department of corrections.

(9) “Emergency" means an immediate threat to the safety of the public, staff or inmates of an institution, other than a disturbance. An emergency may include, but is not limited to the following:

(a) A public health threat.

(b) A utility malfunction.

(d) A bomb threat or explosion.

(e) An employee job action.

(f) Any natural disaster.

(g) A civil disturbance.

(h) Inmate escape.

(10) “Force" means the exercise of strength or power to overcome resistance or to compel another to act or to refrain from acting in a particular way.

(11) “Great bodily injury" means bodily injury which creates a high probability of death, serious permanent disfigurement, or which causes a permanent or protracted loss or impairment of the function of any bodily member or organ or other serious bodily injury.

(12) “Mechanical restraint" means a commercially manufactured device approved by the department and applied to impede free movement of the inmate.

(13) “Non-deadly force" means force which the user reasonably believes will not create a substantial risk of causing death or great bodily injury to another.

(14) “Reasonably believes" means that the actor believes that a certain fact situation exists and such belief under the circumstances is reasonable.

(15) “Secretary" means the secretary of the department of corrections, or designee.

(16) “Security director" means the security director at an institution, or designee.

(17) “Warden" means the warden at an institution, or designee.

DOC 306.03 Security policy. Primary security objectives of the department are to protect the public, staff, and inmates and to afford inmates the opportunity to participate in correctional activities in a safe setting.

DOC 306.04 Responsibility of employees. Every employee of the department is responsible for the safe custody of the inmates confined in the institutions.

DOC 306.05 Protective confinement. (1) The security director may place an inmate in protective confinement if one of the following exist:

(a) The inmate requests the placement in writing.

(b) The security director is satisfied that the placement is necessary for the safety and welfare of the inmate.

(2) An inmate shall remain in protective confinement unless the security director determines that the conditions which warranted protective confinement no longer exist and approves release.

(3) The department shall consider an inmate in protective confinement to be in maximum custody as defined in s. DOC 302.

(4) Inmates in protective confinement shall have privileges and property at least equivalent to privileges and property allowed to inmates in temporary lock-up under s. DOC 303.11.

(a) Additional privileges and property as determined by what is ordinarily allowed inmates by the rules governing the location of the unit in which the inmate is protectively confined.

(5) The security director shall review placements in protective confinement at least every 90 days.

DOC 306.06 Inmate count. Each warden shall establish and maintain a system to accurately account for all inmates in the warden's custody at all times. The institution shall make a count of all inmates at least 4 times each day. The institution shall space these counts to minimize interference with school, work, program, and recreational activities.

DOC 306.07 Use of force. (1) Corporal punishment of inmates is forbidden.

(2) Staff may use non-deadly force against inmates only if the user of force reasonably believes it is immediately necessary to realize one of the following purposes:

(a) To prevent death or bodily injury to oneself or another.

(b) To regain control of an institution or part of an institution.

(d) To change the location of an inmate.

(e) To control a disruptive inmate.

(f) To prevent unlawful damage to property.

(g) To enforce a departmental rule, a policy or procedure or an order of a staff member.

(3) The use of an incapacitating agent is a form of non-deadly force and is regulated by s. DOC 306.09.

(4) Staff may use deadly force only if the user of force reasonably believes it is immediately necessary for the purpose of stopping the action in any of the following situations:

(a) To prevent death or bodily injury to oneself or another.

(b) To prevent unlawful damage to property that may result in death or bodily injury to oneself or another.

(d) To prevent escape or apprehend an escapee.

(5) Staff may not use deadly force if its use creates a substantial danger of harm to innocent third parties, unless the danger created by not using such force is greater than the danger created by using it.

DOC 306.08 Use of firearms. (1) In this section, “Issuance of firearms" means the deployment of firearms to authorized individuals, as determined by the warden, beyond designated armed posts in response to an emergency or disturbance.

(2) Only the warden or authority who is available may issue firearms to staff.

(3) Except in disturbances or emergencies, only staff assigned to posts requiring the use of firearms shall be armed.

(4) Staff may only use firearms approved by the department and only after successfully completing the training program in sub. (5).

(5) The division shall provide an annual firearms training and qualification program which shall include instruction on the following:

(a) Safe handling of firearms while on duty.

(b) Legal use of firearms and the use of deadly force.

(d) Fundamentals of firearms use, including range firing.

(e) When firearms may and shall be used, including the use of verbal warnings and warning shots.

(6) If a staff member discharges a firearm pursuant to s. DOC 306.07(4), either accidentally or intentionally, staff shall do the following:

(a) The staff member who discharged the firearm shall notify the staff member's supervisor as soon as possible.

(b) As soon as possible following the use of an incapacitating agent, all staff present during the incident shall write and submit an incident report.

(c) A supervisor shall investigate the incident and submit a report to the warden. The supervisor shall state in the report all facts relevant to the discharge of the firearm and shall include the supervisor's opinion as to whether the discharge was justified and occurred in accordance with this chapter. The warden shall send the reports required by par. (b) and this paragraph and the warden's conclusions as to the justification for the discharge and whether it was in accordance with these rules to the administrator.

(d) If a person is injured or killed by the discharge of a firearm, the department shall convene a firearm review panel to investigate the incident. The panel shall consist of 5 persons selected as follows:

1. Two members designated by the secretary, one of whom shall be a member of the public and one of whom shall be a member of the department staff who shall serve as chairperson.

2. Two members designated by the administrator, one of whom shall be a member of the central office staff and one of whom shall be a member of the public.

3. One member designated by the warden of the institution where the incident occurred, who is a member of the institution staff.

(e) The panel shall submit a written report to the secretary that includes the facts relevant to the incident and an opinion as to whether this chapter was complied with relating to the use of force.

(7) Only staff authorized by the warden may carry firearms off the grounds of the institution.

DOC 306.09 Use of incapacitating agents. (1) Definition. In this section “incapacitating agent" means any agent or device commercially manufactured and approved by the department for the purpose of temporary control of an inmate or area.

(2) Regulation. The use of an incapacitating agent is a form of non-deadly force and is regulated by this section.