. . . . . Boardof
. .T . . Correction

AN ASSESSMENT OF
THE USE OF CHEMICAL AGENTS
IN NEW YORK CITY JAILS

February 2024

1

Table of Contents
I.

Executive Summary .......................................................................................................................... 3

II.

Background ....................................................................................................................................... 8

III.

Nunez v. City of New York................................................................................................................ 8

IV.

Methodology .................................................................................................................................... 9

V.

Anticipated Use of Force Protocols ............................................................................................... 10

VI.

Findings ........................................................................................................................................... 13

VII.

Case Descriptions ........................................................................................................................... 20

VII.

Conclusion and Recommendations ............................................................................................... 33

Authored by Bart Baily, Director of Violence Prevention. Thank you to the following BOC staff who
provided information for this report: Adrianne Garcia (Correctional Standards Review Specialist) and Juan
Ramón (Correctional Standards Review Specialist). Additional thanks to Melissa Cintrón Hernández
(General Counsel), Katrina Blackman (Assistant Executive Director), Jasmine Georges-Yilla (Executive
Director), and Jacqueline Sherman (Board Member) for their review and comments.

2

I.

Executive Summary

The judicious use of chemical agents 1 in a manner consistent with existing New York City Department of
Correction (“DOC” or “the Department”) policy can be an effective means for disrupting violent behavior
in New York City jails. However, the use of chemical agents on people in custody who are not engaged in
interpersonal violence must be closely scrutinized and better understood.
This Board of Correction (“BOC” or “the Board”) staff report analyzes 50 incidents from October 2023
during which Department uniformed staff deployed the chemical agent oleoresin capsicum (“OC”). In each
of these incidents, people in custody—disproportionally individuals with mental illness 2 and emerging
adults (age 18-21)—were sprayed with chemical agent because they passively resisted staff orders, argued
with staff, or engaged in self-harm with a ligature. 3 Each of these incidents raise concern about the
Department’s use of chemical agents. The Department did not determine that any of these incidents was
an anticipated use of force, despite clear evidence that such a determination was merited in many of the
incidents.
This report also examines broader trends in the Department’s use of chemical agents, which has increased
significantly in recent years, and provides information regarding the types and strength of chemical agents
that are most typically used.
Finally, this report provides greater context as to why people in custody refuse verbal orders, and the
frequency with which DOC staff are following required protocols when they encounter passive resistance.
If we hope to make the New York City’s (the “City’s”) jails safer and less violent, we must understand the
circumstances that may lead people in custody to passively resist orders from staff. We must also ensure
that correction officers have the appropriate resources, support, training, and supervision necessary to
de-escalate verbal conflicts and effectively resolve passive resistance when they encounter it, without
relying—to the extent possible—on chemical agents.

While the Department is authorized by the New York State Commission of Correction to use three types of chemical
agents, oleoresin capsicum, also referred to as “OC” or pepper spray, is overwhelmingly the predominant kind used,
and is the only chemical agent correction officers are authorized to carry daily throughout the jails. For this reason,
this assessment will focus explicitly on the Department’s use of OC.
2
Here defined as individuals in custody with a housing history during their current incarceration that includes
placement into specialized mental health units.
3
In the “Third Report of the Nunez Independent Monitor,” filed April 3, 2017, the Monitor described the misuse of
chemical agents as generally falling into four categories, the first being: “Chemical agents deployed on a passively
resisting Inmate, deployed as retaliation, or deployed precipitously or prematurely in situations where the use of
force should have been an anticipated event.” This category makes up the majority of the 50 incidents reviewed by
Board staff. See https://tillidgroup.com/wp-content/uploads/2018/02/Third-Monitors-Report-04-03-17-Filed-withAppendix-2.pdf
1

3

A. Key Findings
Increasing Use of Chemical Agents During Use of Force Situations
•

•

As violence surged in the City’s jails in the years following the outbreak of the COVID-19 pandemic,
so, too, has the Department’s use of chemical agents. The rate of chemical agent use per 1,000
people in custody was 109.4% higher over the first ten months of 2023 (n=49.2) than in the first
ten months of 2018 (n=23.5). Over the first ten months of 2023, the Department averaged nearly
300 “use of force” 4 incidents involving chemical agents each month (n=297.0).
Since 2018, the likelihood has increased that, when force is used by DOC, it will include the use of
chemical agents. 53.5% of all uses of force over the first ten months of 2023 involved the use of
chemical agents, compared to 41.0% in 2018, and 36.3% in 2019.

Policy Violations and Other Practice Concerns
•

•

•
•

•

BOC staff analyzed 50 use of force incidents that occurred throughout October 2023, during which
staff deployed chemical agent despite the absence of interpersonal violence. 5 In 88.0% of the
incidents reviewed (n=44), the use of force reports uniformed staff are required to complete
following these incidents contain no required determination as to whether the use of force
incident was anticipated by staff.
In eight incidents (16.0%), DOC staff sprayed a person in custody who was engaged in self-harm
with a ligature around their neck. The deployments occurred despite DOC policy 6 requiring staff
to “immediately remove or cut the ligature” when encountering a person in custody with a
ligature around their neck “that is attached to another object,” as was the case in five of these
eight incidents. In the remaining three incidents, it was unclear whether the ligature was attached
to another object based on available records.
In 16 incidents (32.0%), visual evidence suggests that correction officers deployed chemical agents
from close distances prohibited 7 for safety reasons.
In five incidents (10.0%), DOC staff sprayed an individual with MK-9, a very powerful form of OC
that is designed for crowd management and is prohibited 8 from being used against a single
individual presenting passive resistance. In four of these incidents, the person in custody was
sprayed with MK-9 for refusing to obey direct orders. In the fifth incident, the person was sprayed
with MK-9 for attempting to hang himself.
In 11 of the 23 incidents (47.8%) that were captured on body worn camera with audio, uniformed
staff were not heard issuing verbal warnings that chemical agent would be utilized prior to
deployment, despite existing policy that requires such warnings. 9

The Department’s Use of Force Directive (5006R-D) defines a “use of force” as: “Any instance where Staff use their
hands or other parts of their body, objects, instruments, chemical agents, electronic devices, firearms, or any other
physical method to restrain, subdue, or compel an Inmate to act or stop acting in a particular way. The term ‘Use of
Force’ does not include moving, escorting, transporting, or applying restraints to a compliant inmate.”
5
These 50 use-of-force incidents represent 14.8% of all chemical agent incidents that occurred in October 2023
(n=339).
6
DOC Employee Rules and Regulations, 6.15.10(1)(a)
7
Directive 4510R-H, V(A)(4)(e)
8
Directive 4510R-H, V(A)(2)(h)(note)
9
Directive 4510R-H, V(A)(4)(a)
4

4

•

•

•

Of the 50 incidents, 48.0% (n=24) involved people in custody with a recent history 10 of being
housed in specialized mental health units. Despite this, the deployment of chemical agents was
not preceded by an actual or attempted mental health intervention in any of the incidents
reviewed, despite policy 11 requiring DOC staff to consult with and summon a mental health
professional to the scene prior to the deployment of chemical agents when force is anticipated.
When DOC staff captured these incidents on body-worn cameras with audio, people in custody
who were sprayed with chemical agent for passively resisting direct orders were frequently heard
articulating important reasons for their resistance, including the desire to access medical care,
mental health care, medication, and fears for their safety.
For each of the 50 incidents analyzed, BOC staff reviewed the corresponding Rapid Review 12
conducted by DOC facility leadership of the incident. In 45 of the 50 incidents (90.0%), facility
leadership determined the force used by staff was not avoidable. In none of these reviews did
facility leadership determine that anticipated use of force protocols should have been followed
given the preceding circumstances that made it apparent that staff would likely need to use force
to address the situation.

Challenges in Investigating Use of Force Incidents Involving Chemical Agents
•

•

•

In 28 of the 50 incidents (56.0%) analyzed, Board staff identified false statements in the Use of
Force Reports completed by DOC staff who participated in or witnessed the use of force. 13 Most
often, persons in custody who were sprayed with chemical agent were accused of advancing
towards staff at the moment of deployment (n=10, 20.0%), when in fact the video demonstrated
otherwise.
Despite DOC efforts 14 to ensure that all staff interactions with individuals in custody are recorded
on body-worn cameras, less than half (46.0%, n=23) of the 50 incidents reviewed were captured
on body-worn cameras. This was primarily because correction officers were not wearing cameras
at the time of the incident. Most commonly, staff were not wearing body-worn cameras due to
the facility not having “backings,” or mounting plates which are worn on uniforms to hold the
cameras (n=13).
In all 50 incidents (100%), people in custody reportedly refused to provide DOC staff with a written
or verbal statement following the use of force. This points to a broken process for collecting
statements, while underscoring the significant barriers of mistrust the Department must
overcome if it hopes to fully investigate uses of force and incorporate the perspective of people
in custody into its use of force investigations and analyses.

For purposes of this report “recent history” is defined as a placement into a specialized mental health unit during
the current incarceration.
11
Directive 5006R-D, VI (4); Directive 4510R-H, IV(a)(2)
12
Operations Order 1/24 (“Facility Leadership Assessment of Use of Force Incidents”) requires that facility leadership
conduct thorough reviews of each use of force incident (called “Rapid Review”) to understand why each use of force
incident transpired, to determine whether procedural violations occurred, and whether remedial or corrective
measures are called for, including retraining, counseling, referrals, or staff discipline.
13
The absence of body worn camera footage in a significant number of these incidents prevented a review of the
verbal interactions leading up to the deployment of chemical agents.
14
Operations Order 1/22 (“Body Worn Camera”)
10

5

•

In 40 incidents (80%), DOC’s Investigation Division determined that it was not necessary to
attempt to interview the person in custody who was sprayed with chemical agent as part of their
preliminary investigation into the use of force incident.

OC Training and Re-Certification Concerns
•

•

•

In January 2024, BOC staff reviewed chemical agent logbooks for one day in all the jails on Rikers
Island, finding each jail distributed OC handheld units to uniformed staff who had not received
required 15 annual OC re-certification training.
OC certification lists, which identify all uniformed staff and their OC certification type, date, and
expiration date, are required to be kept in the control room of every jail. Only one of the seven
jails was able to produce such a list in its control room during BOC staff visits.
DOC uniformed supervisors are required to participate in an annual, eight-hour training titled
“Chemical Agent for Supervisors.” In 2023, 34 captains, representing approximately 5% of
uniformed leadership, received this mandatory training. No assistant deputy wardens, deputy
wardens, or wardens received the training in 2023.

Safety Concerns
•

•

Correctional Health Services (“CHS”) reported that, in October 2023, 30% of people in custody in
the City’s jails had chronic pulmonary conditions, such as asthma and chronic obstructive
pulmonary disease (COPD). 16 Studies 17 have shown that such individuals can be
disproportionately susceptible to decreased airflow, airway constriction, and adverse medical
events when exposed to chemical agents. Nevertheless, there was no indication in the available
records or videos that DOC uniformed staff consulted with medical staff or reviewed available
records for contraindications to chemical agents as required by the anticipated use of force
protocols 18 and New York State regulations 19 prior to deployment in any of the 50 incidents
reviewed by Board staff.
Handheld chemical agents (MK-3, MK-4, and MK-6) purchased and used by the Department are
available in three formulations of strength. DOC only authorizes its correctional staff to carry the
strongest (or “hottest”) 20 of the three chemical agent formulations (level 3), regardless of the
setting (e.g., an infirmary or mental-health unit) or the circumstances of deployment. A 2021

See New York State Commission on Correction Jail Minimum Standards of Local Correctional Facilities – Part
7063.5(c) https://scoc.ny.gov/system/files/documents/2023/11/jail-min-standards.pdf
16
See “CHS Patient Profile for Individuals in the New York City Jail System.” October, 2023.
https://hhinternet.blob.core.windows.net/uploads/2023/11/correctional-health-services-patient-profile-metricsoctober-2023.pdf
17
See Hathaway, T. J., Higenbottam, T. W., Morrison, J. F., Clelland, C. A., & Wallwork, J. (1993). Effects of inhaled
capsaicin in heart-lung transplant patients and asthmatic subjects. American Review of Respiratory Disease, 148(5),
1233-1237. doi: 10.1164/ajrccm/148.5.123; Capsaicin responsiveness and cough in asthma and chronic obstructive
pulmonary disease. Thorax, 55(8), 643-649. doi:10.1136/thorax.55.8.643 Doherty, Mister, Pearson, and Calverley
(2000), Hathaway, Higenbottam, Morrison, Clelland, and Wallwork (1993)
18
Directive 5006R-D VI (A)(3)(d)(ii)
19
See New York State Commission on Correction Jail Minimum Standards of Local Correctional Facilities – Part
7063.4(c-d) https://scoc.ny.gov/system/files/documents/2023/11/jail-min-standards.pdf
20
As described in informational material provided by the Department’s chemical agent manufacturer.
15

6

study 21 from the International Journal of Policing found “no clear evidence that more
concentrated pepper sprays were more effective.” 22

B. Summary of Recommendations
Training
The Department should closely examine its current chemical-agent training program and re-certification
process with a view to strengthening the program to prioritize the Department’s anticipated use of force
protocols and other safety issues identified in this report. Annual chemical agent refresher trainings
should include a video review of incidents that demonstrate prohibited practices.
Monitoring
The Department should implement several monitoring initiatives related to its chemical agent practices,
including:
•
•
•
•
•

Identifying incomplete or misleading use of force reports;
Ensuring that officers with expired OC training certifications are not issued OC handheld units;
Assessing the availability and response times of captains to calls for assistance by correction
officers;
Reviewing functional deficiencies of the current body-worn camera system;
Reviewing the current processes for collecting statements from people in custody following use
of force incidents.

Policy
The Department and CHS (where applicable) should revise and improve current policies and practices
related to the following concerns identified in this report:
•
•
•
•
•

•

Anticipated use of force tracking and reporting;
Authorization for the use of MK-9;
Expansion of the use of body-worn cameras to always-on, full-shift recording;
Attempting mental-health interventions prior to chemical agent deployment when the
anticipated use of force protocols have been exhausted;
Checking for medical OC contraindications in non-emergency situations prior to the deployment
of chemical agents;
A review of lower strength hand-held OC units.

See Boivin, R., & Tanguay, C. (2020). The stronger, the better? A natural experiment on the effects of pepper spray
concentration levels. Policing, 44(1), 106–117. https://doi.org/10.1108/pijpsm-07-2020-0122
22
Effectiveness defined as: “sub[duing] resistant or aggressive subjects.”
21

7

II.

Background

On October 3, 2023, following the settlement 23 of a lawsuit brought by the Board against the Department
and the City, DOC fully restored the Board’s direct access to video systems—direct access which had been
terminated approximately nine months earlier, on January 10, 2023, by order of then Commissioner Louis
Molina. During the nine-month period from January to October 2023, Board staff was unable to conduct
comprehensive, confidential investigations into incidents of violence and staff uses of force in the jails. 24
With the restoration of direct video access, Board staff resumed their routine video review of use of force
incidents and observed a concerning trend in the Department’s use of chemical agents. This catalyzed a
systematic assessment that has culminated in this public report.
For decades, the Board has urged caution and review regarding the Department’s use of chemical agents.
In 1975, the Board called for a moratorium on the Department’s use of tear gas, following its investigation
into the death of John Wesley Thompson, a person with serious mental illness, who died in custody after
DOC staff sprayed chloroacetophenone, a type of chemical agent, into his cell in the Queens House of
Detention. In more recent years, the Board has continued to focus on this issue, including in 2016, when
it engaged a national expert on the health effects of OC, Dr. Michael D. Cohen, to review the Department’s
chemical agent policies and engage in joint reviews of policy and incidents with the Department.
The anticipated effects 25 of exposure to OC include: swelling of the mucous membranes; immediate
involuntary closing of the eyes; uncontrollable coughing; gagging; gasping for breath; and the sensation
of intense burning of the skin and mucous membranes inside the nose and the mouth. During their time
in the academy, cadets are trained and certified to use chemical agents. Annually thereafter, uniformed
staff are required to participate in an in-person one-hour refresher training to maintain their certification.

III.

Nunez v. City of New York

The 2015 Nunez Consent Judgement 26 required the City to address and correct unconstitutional patterns
and practices of excessive and unnecessary force by DOC staff. In the years since, the Independent Federal
Monitor appointed to assess the City’s compliance with the Consent Judgment, Steve J. Martin, has
consistently found the Department to be non-compliant or partially compliant in its efforts to reform its
use of force practices and oversight. 27 In part because of this lack of progress, in 2024, Judge Laura Swain
See “New York city Board of Correction Regains Full Access to Jails Video Footage Systems.” September 28, 2023.
https://www.nyc.gov/assets/boc/downloads/pdf/News/Board-statement-on-litigation-settlement-2023.09.28.pdf
24
Section 626 of the New York City Charter establishes the Board’s authority and mandates, among which include
evaluating the performance of the Department and conducting investigations into any matter within the jurisdiction
of the Department.
25
See NYC DOC Directive 4510R-H (IV) (B) )(4)(a. – f.)
26
See “Nunez V. City of New York Consent Judgement Master Settlement Document.” July 1, 2015.
https://www.justice.gov/opa/file/624846/download
27
In the Nunez Monitor’s recent Status Report, dated November 8, 2023, the Monitor reported: “The pattern and
practice of unnecessary and excessive force that brought about the Consent Judgment remains pervasive.” See
“Status Report on DOC’s Action Plan by the Nunez Independent Monitor.” November 8, 2023.
https://tillidgroup.com/wp-content/uploads/2023/11/2023-11-08-Monitors-Report.pdf
23

8

will determine whether to hold the Department in contempt and grant the exceptional remedy of
appointing a Federal Receiver to manage the City’s jails.
Hundreds of pages of publicly available records 28 have been devoted to meticulously analyzing the
Department’s inadequate use of force reform efforts, which position this assessment squarely within a
long-standing and well-documented truth that DOC staff use force too frequently and too excessively, and
that the accountability structures in place—jail leadership and DOC’s Investigation Division—are partial
and permissive in their responsibilities and fail to reliably discipline staff members when force is used
inappropriately. 29 It is our hope that we can contribute to solving this intractable problem incrementally,
by focusing on a specific type of force, the use of chemical agents, and the circumstances during which it
is routinely deployed. By bringing these circumstances to the fore with the assistance of video footage
and records, we aim to identify, highlight, and prevent unacceptable patterns of harm.

IV.

Methodology

BOC staff gathered and analyzed available aggregate Departmental data on the use of chemical agents
since 2018 and reviewed all available DOC policies specific to chemical agents, use of force, use of bodyworn cameras, and the prevention of self-harm. BOC staff also reviewed current chemical agent
inventories, facility logbooks, OC certification lists, OC training course materials, and informational
materials from the Department’s chemical agent vendor.
Additionally, BOC staff reviewed the Department’s daily “24 Hour Report,” identifying 50 incidents of
chemical agent deployment in October 2023 for analysis. BOC staff selected reported incidents of
chemical agent use during which the person in custody was described as not being engaged in
interpersonal violence at the time chemical agents were deployed. Once the 50 incidents were
identified, 30 staff reviewed all available Departmental records relating to these incidents, including
stationary video, body-worn camera video, hand-held video, use of force reports, use of force witness
reports, statements from persons in custody, injury reports, and the incident reviews conducted by facility
leadership and the Department’s Investigation Division. BOC staff also developed a tool to collect
information and data points uniformly across all 50 incidents under review. 31
This report is also informed by BOC staff visits to the jails on Rikers Island, and interviews with people in
custody and DOC staff.

See “Tillid Nunez Monitorship – Monitor Reports, Remedial Order Reports & Other Status Reports.”
https://tillidgroup.com/projects/nunez-monitorship/
29
See “Status Report on DOC’s Action Plan by the Nunez Independent Monitor,” November 8, 2023.
https://tillidgroup.com/wp-content/uploads/2023/11/2023-11-08-Monitors-Report.pdf: “The quality of the
Investigation Division’s work product deteriorated such that staff misconduct is not being properly identified and
thus is not corrected or met with proper accountability measures or discipline. Facility Rapid Reviews of use of force
incidents have deteriorated and do not reliably identify misconduct…For the past two years, at each turn, the
Department’s ability to properly identify staff misconduct has degraded and remains on a downward trajectory.”
30
The selected 50 incidents do not represent all incidents in October 2023 during which chemical agent was
deployed despite the absence of interpersonal violence, but rather the first 50 identified by BOC staff.
31
See Appendix A
28

9

Anticipated Use of Force Protocols

l

•
•
•

Use of Force

De-Escalation
Conferring
with
Conflict Resolution
medical
staff
Conferring with
medical staff

Tactical
• De-Escalation
Communication
• Conflict Resolution

Problem Solving

Summon
Supervisor

Obtain Video
Camera with
Audio
Recording

Transparency

Supervisor
Assumes
Responsibility

Staff Support

32

10

In his “Twelfth Report on the Monitoring Period January 1, 2021, to June 30, 2021,” the Nunez Federal Monitor
found that 24% of use of force incidents during the sixth-month period were primarily caused by people in custody
refusing direct orders, which was reflective of “historical trends.” See https://tillidgroup.com/wpcontent/uploads/2021/12/12th-Monitors-Report-12-06-21-As-Filed.pdf
33
See https://www.nyc.gov/assets/doc/downloads/directives/Directive_5006R-D_Final.pdf

Care

1

Mental
Health
Intervention

Accountability

Supervisor
Notifies Tour
Commander

Anticipated
Use of Force

Figure 1

The following flow chart depicts the protocols for anticipated uses of force, as necessitated by the
Department’s Use of Force Directive 33:

A critical component of the Department’s Use of Force Directive is the requirement that, when possible
and practical, staff follow anticipated use of force protocols. Not all incidents of force can be anticipated—
particularly when violence between people in custody erupts—but many can be. For example, in October
2023, the focus month of this report, DOC reported that 29.4% (n=199) of the 677 use of force incidents
that occurred in the month were the result of a person in custody refusing direct orders 32—a situation in
which the use of force can often be anticipated. Yet BOC staff only identified two instances among the
677 uses of force (.003%) in October 2023 where DOC designated the use of force as anticipated.

V.

l

The anticipated use of force protocols in place are robust and call for support for correction officers,
accountability for supervisors, problem solving, transparency, and mental health interventions for people
in custody. These protocols have largely been in place since 2008, with a modification in 2017 that
expanded the opportunity for mental health interventions in all anticipated use of force situations.
BOC staff’s assessment of 50 chemical agent incidents in
October 2023 found that Department staff routinely
disregard these protocols. Perhaps nothing brings this
disregard into sharper focus than the following written
statement by an officer who witnessed an anticipated use
of force involving a person with serious mental illness
who refused to exit an intake holding cell: “It was
apparent that staff would need to use force to address
the situation because said inmate refused all direct
orders. There was no time to prepare a plan of action
prior to using force.”

“It was apparent that staff would
need to use force to address the
situation because said inmate
refused all direct orders. There was
no time to prepare a plan of action
prior to using force.”

The correction officer acknowledges an anticipated use of force, and yet characterizes the use of force as
spontaneous and unavoidable. Moreover, in this instance, the person in custody refused to exit the intake
holding cell because he wanted to speak with mental health staff—a request that is directly in line with
anticipated use of force protocols. However, DOC staff proceeded with control holds and the deployment
of chemical agents, without any documented effort to first contact mental health staff in the jail.
Who Determines When a Use of Force is Anticipated?
Ultimately, the discretion to determine whether use of force is anticipated in a particular situation rests
with the correction officer or uniformed supervisor who is confronted with “a situation in which it is
apparent that Staff Members will likely need to use force to address the situation and there is time to
prepare a plan of action prior to using force.” 34 If a supervisor is notified per the protocols, it is then the
supervisor’s responsibility to follow the remaining protocols. In 2018, the Nunez Independent Monitor
found that DOC staff regularly fail to “recognize anticipated force situations and summon a supervisor.” 35
Responsive to these concerns, that same year, the Department revised its Use of Force Report Form to
include a field for correction officers to identify whether the use of force was anticipated. This field reads:
“Explain in detail the sequence of events leading up to the incident based on your own observations,
including whether the force was anticipated.”
Despite this requirement, in 44 of the 50 (88.0%) use of force incidents reviewed by BOC staff, the reports
for each incident contain no determination with respect to whether the use of force was or was not
anticipated. The determination, in other words, was not made by DOC staff. 36 By comparison, in five of
the 50 cases, a correction officer who took part in or witnessed the use of force explicitly determined its
use was not anticipated. And in the sixth case, while one officer used the words “…anticipating a use of
See NYC DOC Directive5006R-D (VI)(A)(3)(a.)
See “Fifth Report of the Nunez Independent Monitor.” April 18, 2018. https://tillidgroup.com/wpcontent/uploads/2018/04/5th-Monitor-Report-04-18-18-As-Filed.pdf
36
In zero of the 50 incidents was BOC staff able to identify corrective action taken by jail supervisors to address
uniformed staff who failed to make an anticipated use of force determination in their respective use of force reports.
34
35

11

force,” another officer involved in this incident wrote: “There was no time to prepare a plan of action prior
to using force.”
In total, 23 incidents (46.0%) involved an officer deploying chemical agent without the presence or
approval of a uniformed DOC supervisor. Out of these 23 incidents, 17 occurred in housing areas. New
York State Regulation 37 explicitly prohibits the deployment of chemical agents outside of the supervision
of a supervisory staff member, “except in emergency cases when a delay in the use of such agents presents
an immediate threat of death or serious injury or severely threatens the safety or security of the facility.”
In 13 of the aforementioned 24 incidents, the cause for the use of force as reported by the Department
was related to the person in custody refusing direct orders.
Who Reviews and Documents Anticipated Use of Force Determinations?
When a use of force incident occurs, captains are required to provide tour commanders with a synopsis
of the incident within two hours. Tour commanders must then notify Central Operations Desk (“COD”),
the Department’s unit tasked with recording and disseminating reportable incidents in all Department’s
facilities.
During the initial call between the tour commander and COD, basic information about the use of force
incident is relayed, including the identities of the people in custody and staff involved, the type of force
used (e.g., control holds), and a brief description of the incident. COD then enters this information into
the Department’s Incident Reporting System.
The Incident Reporting System includes a field for tracking whether a use of force was anticipated or not.
COD enters this information based on its review of the brief description of the incident, not what the
correction officers involved write in their use of force reports. In practice, 38 however, COD only records a
use of force as being anticipated if it involves a “cell extraction.” 39 The Department reported four such cell
extractions in October 2023, with two categorized as “anticipated” uses of force.
Jail leadership is required to conduct a “Rapid Review” of all use of force incidents to identify any
procedural violations and determine whether the incidents were “avoidable.” An incident may be
assessed as avoidable if the uniformed staff involved “fail[ed] to follow anticipated UOF protocols.” BOC
staff reviewed all 50 Rapid Reviews conducted by facility leadership for each of the 50 chemical agent
incidents analyzed in this report. Not one of the Rapid Reviews (0%) determined that DOC staff failed to
follow the anticipated use of force protocols. In total, five incidents (10%) were deemed to be avoidable
for reasons unrelated to the anticipated use of force protocols.

See SCOC 7063.4 (c) https://scoc.ny.gov/system/files/documents/2023/11/jail-min-standards.pdf
This information was relayed to BOC staff by COD staff during an in-person visit to COD on Rikers Island on
December 5, 2023.
39
A cell extraction is a particular type of force that is highly coordinated and involves specially trained correction
officers.
37
38

12

VI.

Findings

From January 2018 40 through October 2023, the monthly rate of chemical agent incidents (per 1,000
people in custody) has increased 98.9%, from 27.7 to 54.9. 41 Over the first ten months of 2018, there
were 1,986 chemical agent incidents. By contrast, over the first ten months of 2023, there were 2,972
chemical agent incidents, a 49.7% increase, despite an average monthly census that was 28.6% smaller in
2023 (6,042 v. 8,465).
Figure 2
Monthly Rate ,o f Chemical Agent Incidents 1Per 1000 PIC
January 2018 - October 2023
00.0

70.0

f,()_0

50.0

40.0

30.0

,..,
·e:'Ill"'
..c
....u0
ii,.,
cc

20.0

10.0

0.0

Source: DOC Masterbook, DOC Census Data

Since 2018, it has become increasingly likely that, when force is used by DOC staff, it will involve or
include the deployment of chemical agents. In 2018, 41.0% of all use of force incidents involved or
included the deployment of chemical agents. In 2019, this figure dropped to 36.3%. Over the first ten
months of 2023, 53.5% of use of force incidents involved or included the deployment of chemical agents.

BOC selected an approximate five-year lookback for the purposes of this report, to capture both pre-COVID-19
chemical agent trends, as well as trends following the outbreak of the COVID-19 pandemic.
41
In his March 16, 2022, Special Report, the Nunez Independent Monitor wrote that the 2016 average monthly use
of force rate, which was 40.2 (per 1000 people in custody (“PIC”)), represents the “de facto baseline” for the Consent
Judgement, “given that the many protections and practices required by Nunez had not yet been implemented.” In
October 2023, the rate of use of force was 105.3, or 161.9% higher than the 2016 average rate.
40

13

Figure 3

Monthly Percentage of Uses of Force Involving Chemical Agent
January 2018 - October 2023
70.0%
57.6%
52.1%

60.0%

I

50.0%
33.1%
40.0%

\
30.0%

20.0%

10.0%

2018

2019

2020

2021

2022

2023

Source : DOC Masterbook, DOC Cen.sus Data

BOC staff analyzed 50 incidents of chemical agent deployment in October 2023, selecting incidents
during which chemical agent was deployed despite the absence of interpersonal violence. DOC
categorized none of these incidents as anticipated uses of force. The Department reported via its
Incident Reporting System that the reason for these 50 uses of force were:
Table 1

Reason for Use of Force - As Reported by DOC
Refuse Direct
Orders
Total
%
32
64.0%

Prevention of
Infliction of Harm
Total
%
9
18.0%

Resist
Restraints/Escorts
Total
%
4
8.0%

Other
Total
%
3
6.0%

Assault On
Staff 42
Total
%
2
4.0%

Based on Board staff’s observations of available video footage, neither of the two incidents categorized as “Assault
on Staff” appear to demonstrate an actual assault prior to the deployment of chemical agent. In one case, a person
in custody walked past a correction officer’s outstretched hand, making slight contact (which was the alleged
assault), and he was sprayed with OC approximately 30 seconds later, for refusing verbal orders to re-enter a housing
unit. In the second incident, a person in custody was sprayed after he pointed his hand in the face of a correction
officer, but, in the video of the incident, it is unclear whether physical contact was made, and the correction officer,
in his use of force report, did not claim physical contact had occurred.
42

14

None of the 50 incidents were categorized by the Department as anticipated uses of force (a
determination that sets in motion a series of required responses prior to the application of force as
discussed above). Yet the Department reported that 64% of these incidents (n=32) were precipitated by
a person in custody refusing to follow verbal commands from uniformed staff.
In eight cases (16.0%), DOC staff sprayed a person in custody who was engaged in self-harm with a
ligature around their neck. The Department’s Employee Rules and Regulations contains explicit
instructions for correction officers who encounter a person in custody with a ligature around their neck
that is attached to another object: “The officer shall immediately remove or cut the ligature or, if unable
to remove it, disable it, e.g., loosening it, to stop the inmate from hanging/strangling himself/herself.”
In the eight cases reviewed by BOC staff, available records indicate that the ligature was attached to
another object when the correction officer deployed chemical agent. In three cases, the correction officer
was not wearing a body-worn camera and the description of the incident did not provide enough detail
to determine whether the ligature was attached to an object.
In 16 cases (32.0%), visual evidence suggests that the correction officer deployed chemical agents from
close distances prohibited 43 for safety reasons. There are significant health risks associated with the use
of OC at a distance of less than three feet for MK-3/4/6 and from less than six feet for MK-9. OC is deployed
and propelled via a pressurized cannister, and direct deployment to the face at a range of less than three
feet can potentially cause serious injury to the eyes, sinuses, throat, or lungs.
BOC staff identified 14 instances where visual evidence suggests that a person in custody was sprayed
with MK-4 from a distance of less than three feet, and an additional two instances where it appears that
MK-9 was deployed at a distance less than six feet. In an additional 24 cases (48.0%), the available video
is not conclusive enough to make a determination as to whether the officer deployed chemical agent from
a prohibited distance.
Each of these incidents were reviewed by DOC facility leadership, and only six 44 of the 13 incidents were
identified as involving procedural errors related to the deployment of chemical agent from a prohibited
distance.
In five cases (10%), DOC staff targeted and sprayed an individual with MK-9. MK-9 is a very powerful
form of OC designed for crowd management and its use is prohibited 45 against a single individual passively
resisting an order. In four of the cases, the person in custody was sprayed for refusing to obey direct
orders. In the final case, the person was sprayed with MK-9 for attempting to hang himself. In three of the
five incidents, a DOC supervisor deployed the MK-9.
In 11 incidents of the 23 incidents (47.8%) that were captured on body-worn camera with audio,
uniformed staff were not heard issuing verbal warnings that chemical agent would be utilized prior to
deployment, despite existing policy that requires such warnings. The Department’s Use of Force
See supra at Executive Summary, Key Findings
In one additional incident during which MK-9 was deployed from a distance less than six feet, facility leadership
noted the policy violation, but wrote that the person in custody “stepped into the spray.” The video of this incident
does not demonstrate this, but it does demonstrate that, from the point of activization of the body worn camera,
the captain who deployed the MK-9 issued no verbal warning to the person in custody prior to deployment.
45
See supra at Executive Summary, Key Findings
43
44

15

Directive leads with the following policy: “The best and safest way to manage potential Use of Force
situations is to prevent or resolve them without physical force.” By first warning people in custody about
the potential use of chemical agents, an opportunity is created to compel compliance with verbal orders
and avoid the use of force altogether. In four of these incidents, beyond the lack of warning about the
potential use of chemical agents, there was no clear instruction or verbal order given to the person in
custody—that is, the person in custody was sprayed without warning and without DOC staff articulating
an order of any kind.
Nearly half of these incidents (n=24) involved a person with a recent history of being housed in
specialized mental health units, and roughly a quarter (n=13) involved emerging adults (age 18-21). The
Department’s anticipated use of force protocols require that DOC staff attempt to summon a mental
health professional to the scene to persuade the person in custody to cooperate with uniformed staff.
This step is to be taken once all other measures 46 have been exhausted. While the Department cannot
require clinic staff to respond to the scene of an anticipated force situation if none are reasonably
available or if an intervention poses a physical threat to mental health staff, this review identified no
documented effort by DOC staff to summon a mental health professional prior to the deployment of
chemical agent in any of the incidents reviewed by BOC staff.
Of the cases reviewed by BOC that were captured on body-worn camera video (n=22), people in custody
who were sprayed with chemical agent for passively resisting direct orders did so for a variety of
important reasons, including the desire to gain access to medical care, mental health care, and
medication, and seeking protection from harm. A number of illustrative cases from these categories will
be examined in greater detail in the case description section of this report. However, generally, it is
unnecessary 47 and punitive for DOC staff to deploy chemical agent on a person in custody who is refusing
direct orders in an attempt to gain access to the medical clinic. It is also paradoxical, because the use of
chemical agents on a person in custody requires that the person be transferred to the clinic for injury
evaluation. Far from preventing a person in custody from gaining access to the clinic, the use of chemical
agents creates a greater need for access, while significantly increasing demand on staff resources in the
form of use of force reporting and subsequent investigations.
BOC staff identified misreporting in Department staff's use of force reports in more than half (56.0%,
n=28) of the incidents reviewed. In each of the 50 incidents, BOC staff reviewed all the available reports
and witness statements that DOC staff are required to complete following a use of force incident. These
forms provide crucial information about DOC staff perceptions and other factors contributing to the use
of force and are an integral component of any credible use of force investigation. While minor
misreporting errors can be anticipated and understood given the inextricable confusion and stress present
in physical force incidents, serious reporting errors negatively affect the integrity of investigations,
perpetuates the practice of excessive and unnecessary force, and erodes public trust.

See Figure 1
The Federal Monitor identified a myriad of ways that DOC uniformed staff performance routinely creates or
contributes to the need to use force, including the failure to “address reasonable grievances (e.g., individual inmate
issues, group inmate issues, medical problems, access to privileges).” See “Fifth Report of the Nunez Independent
Monitor,” April 18, 2018. https://tillidgroup.com/wp-content/uploads/2018/04/5th-Monitor-Report-04-18-18-AsFiled.pdf
46
47

16

The most common inconsistency observed in the 50 incidents reviewed by Board staff comprises claims
that, at the time of deployment of chemical agent, a person in custody was advancing towards a DOC
officer. However, video shows that the person in custody stood stationary or moved only slightly in an
unprovocative manner, or retreated from staff (n=10, 20.0%).
Body-worn camera footage with audio makes it possible to ascertain verbal interactions between people
in custody and DOC staff preceding the use of force incident. Because there was no body-worn camera
footage for more than half of the incidents reviewed, it was not possible to verify the verbal interactions
leading up to the chemical agent deployment described in the use of force reports in a significant number
of these cases (n=28). An additional seven incidents that were not captured on body-worn camera
occurred within jail cells, outside the view of stationary surveillance cameras, making it impossible to
visually review them for misreporting.
DOC reported that all the people in custody (n=50, 100%) who were sprayed with a chemical agent
refused to provide a verbal or written statement to DOC facility staff following the incident. Currently,
there is no way to verify whether or how statements were sought or to verify refusals. While the refusal
forms contain a date, they do not contain an entry for the precise time and location of the refusal, making
independent video confirmation impossible. At minimum, the definitiveness of this pattern suggests that
the Department faces significant levels of mistrust. In combination with the reporting errors in more than
half the incidents, this finding also underscores the indispensability of video records, and, in particular, of
body-worn camera video with audio as evidence of use of force incidents.
Aside from their investigational value, statements from people in custody following a use of force incident
can be useful to better understand why people are resisting orders from staff. The statements can inform
evidence-based strategies to reduce use of force incidents.
For its part, the Department’s Investigation Division, which is responsible for conducting preliminary
investigations of all use of force incidents, determined that it was not necessary to interview people in
custody in 80% (n=40) of these incidents. The most frequently cited cause for their determinations to not
interview people in custody was the presence of video evidence and absence of a physical injury 48
associated with the use of force incident.
Despite the demonstrable importance of video and audio records to the evaluation of use of force
incidents, and despite an ongoing DOC effort 49 to “record all interactions with individuals in custody”
on body-worn cameras, less than half (46.0%, n=23) of the incidents reviewed were captured on bodyworn camera, either because staff were not wearing a camera (n=26), or failed to activate it (n=1).
Uniformed staff are routinely not wearing body-worn cameras in the jails, as evidenced by this finding.
Following each use of force situation, facility leadership reviews the incident to determine whether it was
captured on body-worn camera, and, if not, the reason. For the 27 incidents that were not captured on
body-worn camera, the most common reason (n=13, 41.8%) was that the facility lacked “backings” or
mounting plates that officers wear on their uniforms, which the body-worn cameras are fastened to.

It is relevant to note here that for 23 of these incidents (46%), the persons in custody who were sprayed with
chemical agent reportedly refused medical evaluations, meaning there was no medical confirmation as to whether
the person was injured or uninjured due to the force used by DOC staff.
49
DOC Operations Order 1/22 regarding Body Worn Cameras, effective May 13, 2022
48

17

BOC staff visited each control room 50 on Rikers Island. During these visits, control room captains and
officers unanimously reported that the magnetic backings purchased by DOC were of poor design and
quality, were prone to break or fail, and that the magnets used with the devices were too strong and led
to officers experiencing finger injuries. BOC staff inspected both broken and functional backings, which
confirmed the reports from DOC staff.
In January 2024, BOC staff reviewed chemical agent logbooks for one day in all the jails on Rikers Island,
finding each jail distributed OC devices to uniformed staff who had not received their required annual
OC re-certification training. The New York State Commission on Correction requires 51 that all facility staff
who have the authority to use or order the use of chemical agents receive annual training “to ensure
continued proficiency in chemical agent issues.” To measure compliance with this requirement, BOC staff
visited the control rooms 52 of each of the seven jails on Rikers Island and cross-referenced the OC
logbooks, which document the daily distribution of OC handheld units to uniformed staff, to the OC recertification list provided by the Department’s Training and Development Division. BOC staff found that,
on the day reviewed, all the jails had distributed OC devices to uniformed staff who had not completed
their annual OC training. RNDC had the highest number of uniformed staff with expired OC certifications
who were assigned chemical agents, at 89. For these 89 officers, the average date of prior re-certification
was June 25, 2022 (or 18 months from the date of the review).
Only approximately 5% of DOC uniformed supervisors received the annual “Chemical Agents for
Supervisors” training in 2023. Departmental training data indicates that 34 captains (out of approximately
571) took part in the required 8-hour annual training. No uniformed supervisors higher than the rank of
captain participated in the training in 2023. Just four captains from the Otis Bantum Correctional Center
(“OBCC”) received the training. As of January 2023, OBCC had the largest census of all jails, with
approximately 1,450 people in custody living in 31 units, including six mental health units and eight
maximum custody units. Approximately 80 captains are assigned to OBCC.
Recourse to chemical agents also entails health risks, not only to people in custody against whom such
agents are deployed, but to others indirectly exposed. During the focus month of this report (October
2023), CHS reported that 30% of people in custody in the City’s jails experience chronic pulmonary
conditions, including asthma, COPD and other lung diseases. 53
Studies have found that people with certain underlying chronic pulmonary conditions can be
disproportionately susceptible to decreased airflow, airway constriction, and adverse medical events
when exposed to aerosolized capsaicin. For example, in their 1993 study, Hathaway, Higenbottam,
Morrison, Clelland, and Wallwork found clear indication of bronchoconstriction for some asthmatic
patients exposed to capsaicin.

50
Each jail as a control room from which chemical agents and body-worn cameras are issued to officers who are
starting their shifts.
51
See supra at Executive Summary, Key Findings
52
The control room in a jail is the location from which OC devices are distributed to uniformed staff. Policy requires
each control room to maintain a list of all uniformed staff and their OC certification type, date, and expiration date.
This list can be used by control officers to ensure that OC handheld units are not distributed to staff who are not
certified. Of the seven control rooms visited by BOC staff, only one was able to produce such list, which was
approximately one month old.
53
See supra at Executive Summary, Key Findings

18

According to Dr. Michael D. Cohen, the 1993 Hathaway study offers “clear evidence that certain asthmatic
experience significant airway narrowing when exposed to very low doses of inhaled capsaicin.” 54
Despite these risks, there was no indication in the available records or video that DOC staff consulted with
medical staff directly or reviewed available records for contraindications to chemical agents prior to their
deployment in any of the 50 incidents reviewed, despite the requirement to do so in the anticipated use
of force protocols.
In addition to the 50 individuals under assessment here who were directly sprayed with chemical agent—
and among whom it is reasonable to assume as many as three out of ten may have had preexisting chronic
pulmonary conditions—many more individuals (people in custody, uniformed staff, non-uniformed staff,
and medical staff) who played no direct role in the use of force were exposed to the chemical agents
indirectly.
The chemical agent or OC products purchased and used by the Department have three levels of
intensity: level one (.33% MC) 55, level two (.67% MC), and level three (1.3% MC). The Department,
however, only authorizes its uniformed staff to carry the highest-intensity products (level three). A
study 56 published in 2021 in Policing: An International Journal compared the effectiveness and health risks
associated with the three levels and found that evidence for increased effectiveness of level three
products is weak, and that their use is associated with a higher probability that medical treatment will be
required. “Consequently,” the study concluded, “our advice to police organizations is that level 1 and level
2 sprays are comparable in terms of effectiveness, and we did not find empirical reasons to pay more for
a ‘stronger’ pepper spray.”
DOC necessarily reduces operational flexibility by only authorizing its uniformed staff to carry level three
products. This practice results in the deployment of the strongest chemical agents in environments such
as infirmaries and mental health units that house vulnerable populations. Moreover, DOC officers who
experience chronic pulmonary disease are only authorized to carry level three products, despite the
potential risks of indirect exposure.

See “The Human Health Effects of Pepper Spray - A Review of the Literature and Commentary.” Dr. Michael D.
Cohen. Journal of Correctional Health Care 1997 4:1, 73-88
55
MC stands for “major capsaicinoids,” which is a uniform measurement of the strength of OC or pepper spray.
56
See supra at Executive Summary, Key Findings
54

19

VII. Case Descriptions
This section of the assessment will provide ten narrative examples that will demonstrate, in detail, the
Department’s overreliance on chemical agents and lack of reliance on the prescribed anticipated use of
force protocols. The cases were selected 57 from the 50 analyzed by BOC staff, and they are divided in two
sections: access to health and mental health care, and fear for safety. All identifying information related
to people or places has been removed. All quotes are taken directly from body-worn camera footage. All
descriptions are based on available Departmental records.

A. Access to Health and Mental Health Care
Incident #1
On October 1, 2023, at 5:45 PM, an individual in bed in a mental health unit (Unit A) was suddenly attacked
by another individual in custody. He was dragged out of bed by the person in custody and his mattress
and belongings were thrown on the floor by other people before he was escorted to the front of the unit
by the housing area officer.
About ten minutes later, a captain arrived and attempted to rehouse the individual in another mental
health unit (Unit B), but he resisted. “I can’t go up there,” he said. “They’re going to beat me up.” Because
the captain noted the individual was at times incoherent and “started something with someone outside
right when I was bringing him to” [Unit B], the captain moved him to the main intake, where he instructed
the correction officers to keep him “until things calm down.” 58
The individual was placed in a holding cell in the main intake at 6:01 PM. He was removed from the intake
cell for approximately 10 minutes by two DOC supervisors, from 11:26 PM to 11:36 PM. 59
At 2:03 AM, eight hours into his intake
placement, an intake captain, an escort
captain, and a correction officer
approached the individual’s holding cell,
and both captains activated their bodyworn cameras. Ordered to turn around
and put his hands behind his back, the
individual responded: “I’m not going
nowhere, I’m going out the building. I

“I want to speak to my
psychiatrist… Leave me alone… I
didn’t hit nobody; I didn’t hurt
nobody.”

These cases were selected both because they were representative of trends highlighted in this report, and
because they were captured on body-worn camera footage with audio recording, which allows for a review of the
verbal interactions between uniformed staff and people in custody that precede chemical agent deployments.
58
On September 12, 2022, Mayor Eric Adams issued Emergency Executive Order No. 201, which brought the Board’s
Minimum Standard §6-05 Confinement for De-Escalation Purposes back into effect. This standard prohibits the
Department from using a jail’s intake area for de-escalation confinement and post-incident placement. Despite this,
the Department still routinely uses its jail intake areas for de-escalation placements, as demonstrated in this
narrative.
59
DOC staff did not activate their body-worn cameras during this period, so it was not possible to determine what
was discussed.
57

20

want to speak to my psychiatrist in the [mental health unit] to come over here and transfer me out of
here because there’s no space... I already got kicked out, I got beat up and everything in there.” He
continued verbalizing at times disorganized thoughts and refused to follow the escort captain’s direct
orders to turn around and place his hands behind his back. “I’m going to stay right here,” he said. “I have
the right to stay here.”
At that point, the intake captain turned to the escort captain and said: “This is an anticipated use of force?”
The escort captain responded: “Yeah, no problem,” and said to the correction officer present: “Come here.
Cuff him.”
The intake captain then turned back to the person in custody and said: “Listen, you have to exit this cell.
Turn around and place your hands behind your back, sir, or they’re going to spray you.”
At 2:06 AM, the correction officer and the intake captain entered the holding cell. The person in custody,
increasingly agitated, raised his hands in the air, with both index fingers pointing upwards—a pose he
maintained until the chemical agent was deployed. As the officer reached up to take hold of one of his
upraised arms, the person in custody, while apparently trying to hide his face behind his arms, repeatedly
shouted: “Leave me alone.” Ordered again to let himself be cuffed, he protested: “If you spray me, I’m
going to go crazy by accident…I didn’t do nothing, I didn’t hit nobody... Leave me alone.”
At 2:07 AM, the correction officer reached up and took hold of the person in custody’s wrist. The escort
captain said: “If he pulls away, he’s going to get sprayed.” As the officer struggled to draw the wrist down,
the person in custody raised it up again and, as he stood with both hands near his head and his index
fingers pointing upwards, the intake captain deployed the chemical agent towards his face from a distance
that appeared to be less than three feet.
Three minutes and 20 seconds elapsed between when the escort captain gave his first direct order to the
person in custody and when the intake captain deployed the chemical agent. In the use of force reports
submitted later by staff, the correction officer present in the cell wrote that the person in custody was
“attempting to evade the immediate area” before the intake captain deployed the chemical agent. The
escort captain wrote that the person in custody “continued to take a fighting stance while balling up his
fists.”
Following the deployment of the chemical agent, DOC staff and the person in custody rushed out of the
cell. A physical struggle ensued, which reportedly did not result in any injuries. Once the person in custody
was placed in rear restraints, he was taken to the decontamination shower, then escorted by staff to the
main clinic at 2:19 AM. He entered a treatment cubicle at 2:28 AM and exited at 2:36 AM. He was then
escorted out of the clinic in restraints and, with no shoes on his feet, he was escorted to a new mental
health unit at 2:39 AM.
Three days later, the individual was assaulted in the mess hall. He was subsequently transferred to a
mental health housing unit in a new jail. Five days later, he was transferred to the hospital, where he was
admitted into the forensic psychiatric unit.

21

Incident #2
On October 23, 2023, at 10:42 AM, the lawyer of a person in custody e-mailed the Department’s Office of
Constituent and Grievance Services 60 to complain that their client repeatedly requested mental health
services and did not receive them. The lawyer also wrote that the client’s legal team recently submitted a
mitigation report to the court documenting the client’s mental health issues, which had gone untreated
for years. The lawyer requested that their client be transferred to a mental health unit and be given the
opportunity to speak with a therapist.
About six hours later, at 4:32 PM, the person in custody exited his housing area, a general population
dormitory, as a correction officer was providing commissary services. The door to the unit was open, and
the commissary officer stood on the threshold. The person in custody approached and attempted to walk
by the commissary officer. The officer extended his arm to block him, but he continued past, making
minimal physical contact with the officer’s outstretched hand as he entered the area directly outside the
dormitory.
In response, the commissary officer activated his
body-worn camera, removed the chemical agent
cannister from his duty belt, and stepped in
front of the person in custody, who stood with
his hands at his sides. Ordered by the
commissary officer to return to the dormitory,
the person in custody replied: “I want to speak with a captain,” to which the officer responded: “That’s
not how we do it... Step inside.” At that point, the person in custody raised both his hands in the air, with
his palms open. The officer said: “You can put your hands up all you want. I’m going to tell you one more
time to step inside.” To this, the person in custody replied, “I want to see the captain.”

“I want to speak with a
captain.”

The commissary officer then approached the person in custody, placing one hand on the individual’s
stomach and pushing him towards the dormitory door. The person in custody, with his hands still in the
air, took a half step backwards. The commissary officer then took three steps backwards and, as the
person in custody said: “Big man, big man, I want to see the captain,” sprayed chemical agent in the person
in custody’s face from approximately three feet 61 while his hands were still in the air above his shoulders
at 4:33 PM.
Twenty-two seconds elapsed between when the commissary officer gave his first direct order for the
person in custody to step back inside the dormitory and when the officer deployed the chemical agent. At

60
The Department’s website describes the Office of Constituent and Grievance Services (“OCGS”) as a “ bridge
between the Department and the community at large, providing a final resolution point for concerns regarding
conditions of confinement, dissemination of useful and timely information, building community relationships,
enhancing public awareness, promoting fairness, and fostering respect for all while supporting the Department’s
goals.”
61
The officer, who was standing face-to-face with the person in custody, took three steps backwards, but then fully
extended his arm prior to deployment. The camera angle does not provide a conclusive indication as to whether the
officer deployed the OC from a distance less than three feet. As such, this case was not categorized by BOC staff as
having violated the three-feet policy.

22

no point was the person in custody warned that chemical agent would be used, although the officer wrote
in his use-of-force report that he issued a verbal warning regarding the use of chemical agent.
Following the incident, the person was escorted to the decontamination shower pen in the main intake.
He arrived at the decontamination shower area at 4:42 PM, nine minutes 62 after the deployment of
chemical agent. He remained in the shower area until 5:23 PM, at which point he was escorted out of the
area and taken to the main clinic, where he was presented for medical attention at 5:30 PM.
Two days following the incident, the person in custody was transferred to a specialized mental health unit.
Incident #3
On October 27, 2023, a person in custody exited his mental health housing unit early in the morning for a
court date. On his way to the court bus, he stopped at the medication window in the main corridor, where
fixed-camera video showed him being handed a small white cup. In the main clinic several minutes later
and after looking into the cup, he returned to the medication window, which was closed. He then
appeared to search the floor, seemingly for dropped medication. He exited the facility at about 6:30 AM
and returned from court later in the afternoon.
Following the evening meal, the person in custody persuaded a correction officer stationed in the corridor
to allow him to enter the main clinic. As the individual approached the medication room window at about
7:15 PM, three officers activated their body-worn cameras. The cameras showed him in an agitated state
and speaking loudly while an officer attempted to de-escalate the situation. “Who brought him here?”
the captain stationed in the clinic asked the officer, whereupon the person in custody responded: “I want
to get my medicine. I went to court today.” “You didn’t go to court today,” the captain said. The person
in custody was adamant: “Yes, I did... I went out to court this morning... I need my [medicine] now. I’m
diabetic. My sugar is high. Please give me my medicine. Captain, can you talk to the lady [in the medication
room]?”
While one of the correction officers present
entered a treatment cubicle with a member of
clinic staff to discuss the matter, the person in
custody continued demanding his medication,
growing increasingly angry and at one point
shouting: “Stop playing with me. I need my
medicine. They’re lying to you. I went to court
today.” He then asked the captain to investigate
the reason he was not getting his medication, before exiting the clinic on his own at 7:19 PM.

“Stop playing with me. I need
my medicine. They’re lying to
you. I went to court today.”

About 15 minutes later, at 7:34 PM, a captain stationed in the corridor activated his body-worn camera
as he responded to the person in custody, who appeared to be refusing orders to return to his housing
unit. “I need my medicine,” he said. The captain responded: “Come on, man, you just got your meds.” The
person in custody agitatedly disputed this. At 7:41 PM, after trying to de-escalate the situation, the captain
escorted him back to the medication window, where he asked a group of correction officers: “Did he get

The Department’s Chemical Agent Directive requires that decontamination occurs “as soon as feasible, not to
exceed a period of five (5) minutes.”
62

23

his medication?” An officer responded: “He doesn’t want to wait for his medication to come to his house.
He’s in [a mental observation] house. The medication comes to him.”
At this point, the captain deactivated his body-worn camera and—as shown by fixed-camera video—
walked away, effectively ending his supervision of the person in custody without a resolution.
At 7:42 PM, the person in custody approached the medication window. After an interaction with the staff
person behind the window and a DOC officer, he sat down on the steps adjacent to the window at 7:44
PM. At 7:45 PM, a correction officer present activated his body-worn camera, approached the person in
custody seated on the stairs, and said: “I’m giving you a direct order to go back to your house, or OC will
be utilized. Are you going back to your house?” The person in custody responded: “No.” Still seated, he
was trying to put on a surgical mask when the correction officer deployed the chemical agent in his face
from a distance of approximately three feet. 63
The correction officer who deployed the chemical agent later wrote in his use of force report that he had
no radio with which to contact a supervisor. However, a second correction officer at the scene issued a
radio transmission four seconds after witnessing the deployment of the chemical agent.
The individual who was sprayed was escorted to the decontamination shower area in the main intake,
arriving at 7:49 PM. He remained in this area until 8:07 PM. At 8:10 PM, while still in the intake, the person
in custody had a five-second interaction with an officer who was standing next to a clinician. Following
this brief interaction, the clinician returned to the clinic. 64 The person in custody was then escorted out of
the intake by multiple officers and, as he passed by the door to the clinic, the person in custody stopped
and lifted his shirt, demonstrating his stomach area to the officers. However, the person was not allowed
in the clinic, and was instead escorted to a housing area. On his way to the housing area, at 8:13 PM, the
person in custody stopped for a moment at the shuttered medication window, knocking multiple times
on the glass.
Incident #4
On October 17, 2023, at 8:30 AM, correction officers entered a mental health unit and began packing up
the belongings of a person in custody. A correction officer told the person in custody to get ready to go to
another housing area, but the person refused. “I’m not going to that housing area,” he said. “I gotta see
the psych and mental health.” A captain told the person in custody he was going to a general population
housing area, not a mental health unit. The person in custody responded: “I don’t know what you’re trying
to pull... I deal with mental health. That’s why I’m here in the first place.”
The captain then told the person in custody he would be taken, not to the general population unit, but to
the main intake (where he could presumably wait to be seen by mental health staff). The individual agreed
and began gathering his property.

The camera angle does not provide a conclusive indication as to whether the officer deployed the OC from a
distance less than three feet. As such, this case was not categorized by BOC staff as having violated the three-feet
policy.
64
A clinician reported that this person in custody refused medical attention at 8:30 PM.
63

24

The person in custody walked downstairs into the
corridor with DOC staff and, at 8:34 AM, they
arrived at a point where the corridor split in two
directions: one towards the main intake and the
other towards the general population housing unit.
When a correction officer pointed the person in
custody in the direction of the general population
housing unit, he balked: “I’m going to intake.” The
correction officer responded: “You’re not going to intake.” The person in custody responded: “I’m not
going to [general population]. I just told y’all that I need to see the psych... What kind of games [are you]
playing? Why [are you] lying? I need to see the psych.” When he continued to balk, one of the correction
officers unholstered his can of chemical agent. This appeared to antagonize the person in custody even
more. “I don’t care about none of that,” he yelled. “I need to see the psych.”

“What kind of games [are you]
playing? Why [are you] lying? I
need to see the psych.”

At 8:35 AM, a correction officer ordered the person in custody to turn around. The person in custody again
yelled, “I need to see the psych right now.” The captain ordered the person in custody to “stop balling
[his] fist or chemical agent will be utilized.” The person in custody complied with the order and opened
his palms. His hands remained at his sides, with his palms open. As the individual took a slow half-step
sideways, the correction officer deployed the chemical agent to his face from approximately three feet. 65
The person in custody was then escorted to the decontamination shower area, arriving at 8:37 AM, and
exiting this area at 8:47 AM. He was then escorted to the clinic, arriving at 8:49 AM.
Five correction officers and the captain later stated in their use of force reports that the person in custody
“advanced” on one of the officers. Four of the correction officers also stated that the person in custody
balled his fists when he advanced on them.
Incident #5
On October 6, 2023, at 5:50 AM, a person in custody entered the rear dayroom area of his general
population housing unit, where he was seen smoking an unknown substance. At 5:53 AM, he appeared
unsteady as he exited the dayroom area and, at 5:56 AM, he collapsed on the floor.
After struggling to his feet, he stumbled towards the front of the housing area, where a correction officer
was seated at a desk. The officer rose while the person in custody, who appeared disoriented and
distressed, shuffled around the desk, and knocked on the window of the “A” station. 66
The correction officer attempted to speak with the person in custody, but the person walked off towards
an exit and then stumbled back toward the correction officer. The correction officer reached out his arm
and made contact with the person in custody, resulting in the person falling to the floor.

The camera angle does not provide a conclusive indication as to whether the officer deployed the OC from a
distance less than three feet. As such, this case was not categorized by BOC staff as having violated the three-feet
policy.
66
The “A” station, colloquially known as the “bubble,” is the housing area’s secured control room and cannot be
accessed by people in custody.
65

25

At that point, at 5:58 AM, the correction officer activated his body-worn camera and unholstered his
chemical agent cannister and radio, although he did not appear to make a radio transmission. At the
moment the camera was activated, the correction officer can be heard saying: “You lunged at me.”
While the person in custody remained on the
floor, appearing disoriented and in distress,
several other persons in custody approached and
asked the correction officer why he hit the man.
The correction officer ordered them to back away
while the person in custody, still on the floor,
said: “Medical. Medical. Hold on, listen. I’m telling
you to take me to the hospital. Why you don’t
want to call it in?...I’m telling them I need
medical, and they don’t want to give me medical.”

“I’m telling you to take me to
the hospital. Why you don’t
want to call it in?”

The person in custody then crawled on his knees towards the correction officer and appeared, in falling
forward, to make contact with the correction officer’s radio, which dropped to the floor. The correction
officer’s immediate response, at 5:59 AM, was to deploy his chemical agent in the face of the person in
custody from a distance of approximately three feet. 67
While the correction officer used his radio to report the deployment of the chemical agent, the person in
custody remained on the floor, screaming, and flailing about. When the person began shouting for help
and water, at 6:01 AM, another person in custody approached and handed him milk. The affected person
in custody remained on his knees while the correction officer who sprayed him stood near the housing
area door. Another person in custody can be heard saying: “If you’re afraid to be around men in [custody],
then you shouldn’t put the uniform on. We told you something’s wrong with him. We told you he can’t
breathe. He got chest pains.”
At 6:06 AM, a captain arrived at the unit and,
while the correction officer attempted to
describe the sequence of events to him, a
person in custody interrupted them. “Captain,
the officer was standing right there,” he said.
“[The individual sprayed] came up and asked
him for medical assistance. He said he couldn’t
breathe. [The officer got nervous] and he
punched him. Then, after that, he maced him. [The officer] did what he wasn’t supposed to do. That’s the
bottom line. Run the cameras back... That’s what happened. That was unnecessary. Completely.”

“[The officer] did what he
wasn’t supposed to do. That’s
the bottom line.”

At 6:15 AM, seven officers and a captain, all wearing protective gear, including helmets, vests, and shields,
arrived at the unit. The person in custody was rear-cuffed and escorted out of the unit at 6:18 AM, arriving
to the decontamination shower area in the main intake at 6:33 AM, 34 minutes after he was sprayed with

The camera angle does not provide a conclusive indication as to whether the officer deployed the OC from a
distance less than three feet. As such, this case was not categorized by BOC staff as having violated the three-feet
policy.
67

26

chemical agent. He was removed from the decontamination area at 6:35 AM and placed into a holding
pen.
At 7:55 AM (one hour and 56 minutes after being sprayed), the individual was escorted into the clinic for
his medical examination. The injury report initiated by DOC staff contains no mention of the medical event
that precipitated the use of force and the examining clinician notated “pain medication as needed” for
the treatment provided.
Incident #6
Following a brief hospitalization and an eight-day placement in an infirmary unit on Rikers Island, on
October 26, 2023, a person in custody was transferred to a new facility at 2:16 PM on a Friday. He
remained in intake holding cells until 7:03 PM, when he was escorted to the general population
medication window. He was returned to an intake holding cell at 7:14 PM.
At 2:14 AM, three correction officers and a captain activated their body-worn cameras and entered the
holding cell. As they approached him, the person in custody was seated and can be heard saying: “I’m not
going nowhere... I’m not doing nothing illegal. I just want medical attention.” A correction officer reached
for the person’s wrist, but the person pulled it away. “Don’t touch me,” he said, whereupon the captain
unholstered a cannister of MK-9 and pointed it directly at him. In response, the person in custody, who
held an inhaler in his hands, lifted his shirt to show something on his upper side. “I want medical
attention,” he said. “Look how I am. I just came from the hospital.”
A correction officer then ordered the person in
custody to stand and put his hands behind his
back, to which the person responded that he
had a medical order that prohibited him from
being cuffed behind his back. 68 He continued to
request medical care: “I’ve been [in the intake]
since early. I asked nicely to see medical. I
haven’t done nothing wrong... All I’m trying to
do is see a doctor. That’s all I’m trying to do. Call
Deputy Warden [name omitted] for me. Tell him
[person in custody] has a problem down here... All I want to see is medical. That’s all I’m asking for. I’m
trying to get my meds right. If I don’t see them, I’m not going to see them tomorrow... I call them from
Monday to Friday and hope to see medical, and nobody comes and gets me in the unit. That’s why I got
sick and I went to the hospital… I went today to the medication line, and they didn’t have my meds… They
were supposed to have my medication in the medication line. They didn’t have my meds. They were
talking about how they had all my [meds] in the computer, but that they didn’t have my meds. It’s Friday.
If I don’t see them, I’m not going to see them until Monday.”

“They were supposed to have
my
medication
in
the
medication line. They didn’t
have my meds.”

The clinic to which the person in custody was attempting to gain access was close by, directly adjacent to
the main intake. A correction officer suggested that once the person in custody was placed in a housing
unit, he could sign up for sick call. The person in custody expressed disbelief, based on his 14 months in
BOC staff obtained a copy of this document, which confirms that CHS notified DOC on September 26, 2023, that
the individual should be “Front cuff[ed] only, allow access to self-administered medication, no chemical agents.”

68

27

custody, that he would be seen by medical staff via sick call. Told by a correction officer that he could not
stay in the intake, the person in custody requested that they call in a medical emergency. A correction
officer responded: “I’m not calling a medical emergency. There’s no medical emergency here.” The person
in custody then responded that he was not going anywhere and that he had “chest pains.”
At that point, two correction officers approached him and attempted to gain control of his wrists. “Don’t
touch me,” he protested. “I don’t disrespect… Let me just see medical.” A correction officer, growing
agitated, shouted back: “It’s not me. The doctor don’t want to see you. We spoke to him… They don’t
want to see you. They said you’ll get seen at sick call.”
The two correction officers then took control of the person in custody’s wrists, but in standing up, he
broke free from their hold. A correction officer took hold of his wrist again and, when he continued to
resist, another correction officer deployed chemical agent in his face from a distance of approximately
three feet at 2:18 AM.
Following the deployment of the chemical agent, the person in custody dropped down into a seated
position on the bench. Again, uniformed staff ordered him to put his hands behind his back. He responded
by saying: “I’m not putting my hands behind my back.” Approximately 10 seconds after the first
deployment, he was sprayed in the face a second time from a distance of approximately three feet. 69 “You
sprayed me. Now I have to see medical,” he said. Told to turn around, he responded: “I can’t turn around.
I can’t even see—you see I’m [expletive] blind [motioning to an eye patch he wears].”
Rear-cuffed, he was taken to the decontamination shower at 2:21 AM and then brought into the main
clinic, where he was examined by a CHS clinician at 3:20 AM. The clinician ordered him to be transported
to the hospital via Emergency Medical Services (“EMS”) to rule out acute coronary syndrome.
Incident #7
A person in custody called 3-1-1 to file a complaint that CHS clinic staff in the infirmary unit he was
assigned to had not helped him with his high blood pressure in two weeks. The following day, October 11,
2023, upon returning from the recreation yard, he sought to follow a CHS clinician he encountered into
an office. The person in custody, who uses a wheelchair, refused to allow a correction officer to wheel
him into his cell, whereupon, at 3:09 PM, several correction officers and a captain present activated their
body-worn cameras.
“I’m staying right here, I’m waiting for the [clinician],” the person in custody said, despite being told the
clinician would not be coming out of the office to see him.
The captain then sent a radio transmission for a de-escalation team to respond to a person in custody
refusing to return to his cell.
“I’m not going nowhere,” the person in custody continued to insist. “I ain’t seen a doctor yet and ain’t
nothing been done and my blood pressure is still sky high.”

The camera angle does not provide a conclusive indication as to whether the officer deployed the OC from a
distance less than three feet. As such, this case was not categorized by BOC staff as having violated the three-feet
policy.
69

28

Asked about a hospital appointment he was taken to the day before, he replied that he was returned to
Rikers Island from the hospital with specific orders, and that he had yet to be seen by a doctor regarding
those orders.
“I ain’t going to keep accepting this every day,” he said. “I’m just going to handle this the way I got to
handle it.”
After confirming with the correction officer that the person in custody’s leg was shackled to the
wheelchair, the captain ordered the correction officer to place restraints on the man’s arm. The man
resisted all ensuing efforts to cuff him over a 45-second period. At 3:12 PM, the captain ordered a
correction officer to “spray him.” The correction officer deployed chemical agent in the person in
custody’s face at a distance of less than three feet. 70 The correction officer then radioed a request for a
“probe team” to report to the scene.
Within seconds of the deployment of the
chemical agent, the person in custody and all
present DOC staff members were coughing,
gagging, and choking. The captain, who had
difficulty speaking, said to a correction officer: “I
have asthma.” The person in custody, the only person sprayed directly, also said: “I got asthma... I can’t
breathe.”

“I got asthma. I can’t breathe.”

At 3:16 PM, after telling a correction officer he needed his albuterol inhaler, the person in custody
collapsed from his wheelchair onto the floor. Asked where his inhaler was, he was unable to answer, but
another correction officer found it in his cell and brought it to him where he was seated on the floor, his
legs beginning to shake. The captain was also visibly in distress but refused advice to go out into the fresh
air. “I gotta supervise,” the captain said. To which a correction officer responded: “You can’t supervise if
you can’t see.”
At 3:19 PM, the captain implored the person in custody to use his inhaler. The person in custody, still
seated on the floor with his back against a wall and his legs and body shaking, appeared unable to raise
the inhaler to his mouth. At that point, on the captain’s orders, a correction officer called in a medical
emergency. A second correction officer approached the person in custody, who was still struggling with
the inhaler, and said: “I’m going to help you.” The correction officer then took the inhaler from him and
discharged multiple doses into his mouth. “You gotta breathe when you take it,” the officer said.
At 3:20 PM, a correction officer entered the clinic office located only a few feet from the scene just
described. The correction officer informed the clinician who encountered the person in custody earlier
that the latter “can’t breathe—somebody gotta do something, I called a medical emergency… I just
sprayed him.” When the clinician said he was afraid of being assaulted, the officer replied: “He’s not going
to beat you up. He can’t even move. He can’t breathe. I’m not going to let him beat you up. I’m right here.”
“Where is he?” the clinician asked.
“He’s right here, on the floor,” the correction officer said.

70

As confirmed in the Rapid Review conducted by the jail’s leadership.

29

“I can’t see him,” the clinician said.
“It’s a medical emergency,” the correction officer repeated. “He can’t breathe. Look at him.”
The correction officer then returned to the person in custody, who was still on the ground. The captain
had him shifted onto his side, and another correction officer had tucked a sweatshirt under his head. The
captain verbalized that she was worried the man may be having a seizure, because of the shaking of his
body. Told by the correction officer who emerged from the clinic office that the clinician was refusing to
provide treatment because he was afraid of being beaten up, the captain used her radio to report that a
doctor was refusing to afford a person in custody medical attention. The captain then approached the
clinic office and, at 3:22 PM, shouted at the doctor: “You have to come and give this man medical
attention. You gotta come and see him.” At that point, the clinician emerged from the office and appeared
to attend to the person in custody.
From 3:24 PM through 3:32 PM, two clinicians attended to the person in custody while he lied on the
floor. No effort was made to get him up off the floor and onto a gurney. At 3:33 PM, he was able to
struggle back into a seated position and, at 3:35 PM, he was helped by officers into his wheelchair and
reportedly taken to a decontamination shower.
The CHS clinician who initially hesitated to treat the person in custody later wrote in the injury report that
the man refused medical examination, though no visual evidence suggested this. The clinician provided
no disposition order and, in the treatment field, wrote: “Follow up as needed.”

B. Fear for Safety
Incident #8
On October 18, 2023, at 10:44 AM, in a housing area unit, a person in custody was attacked in a cell.
Pursued by several other people in custody, he fled the cell and, as he ran down the tier, another person
attempted to punch him in the head. When he reached the front of the housing area, no correction officer
was present. The correction officer on duty had exited the unit four minutes earlier. With his attackers
closing in on him, the person in custody appeared to alert two correction officers in the vestibule outside
the housing area door and, at 10:45 AM, the door opened and he exited into the vestibule.
Unrelatedly, according to staff use of force
reports, a probe team was just then responding
to an incident in an adjacent housing area. The
probe team’s captain, seeing the person in
custody in the vestibule, ordered him to return
to the unit in which he had just been attacked.
The person in custody refused the order. Fixed-camera video shows the probe team’s officers pointing
MK-9 cannisters at him. Although probe teams are required to include a correction officer assigned to film
uses of force, the correction officer present with a hand-held camera did not film the interaction.
However, a nearby captain who was not part of the probe team had her body-worn camera on. She can
be heard telling the probe team: “Don’t spray him. Just cuff him.” She quickly exited the area when an
MK-9 cannister was deployed against the person in custody. “Oh my god,” she can be heard saying, and:
“Ah, Jesus.”

“Don’t spray him. Just cuff
him.”

30

The fixed camera captured the moment the person in custody was sprayed from approximately six feet. 71
He was standing still, with his eyes closed and his arms crossed on his chest. About 50 seconds had elapsed
between his leaving the housing unit to escape his attackers and the moment when he was sprayed with
MK-9 for passively resisting orders. A correction officer present reported that the person in custody was
advancing on staff when he was sprayed with chemical agent.
Following this incident, the person in custody was escorted to the decontamination shower area in the
main intake at 10:52 AM. The person in custody remained in the enclosed decontamination shower cage
(which dimensions are approximately three feet by three feet) until 11:41 AM, or 49 minutes later. As he
was removed from the shower cage, officers activated their body-worn cameras, capturing the person in
custody still in distress over the effects of the MK-9. A nearby person in custody can be heard yelling,
“That [expletive] is hot,” to which the captain responds: “It is hot.”
At 11:46 AM, the person was placed into an intake holding pen and he appears to attempt to
decontaminate using the small sink. The injury report related to this incident includes a notation from a
CHS clinician that the person was presented for medical attention at 2:10 PM. The examining clinician
reported observing no physical injuries and noted that the person in custody refused the evaluation at
2:38 PM. However, available video demonstrates that the person in custody remained in the holding pen
until 5:10 PM and was never brought to the clinic. BOC staff did not identify any clinical staff approaching
or interacting with the individual between 2:00 PM and 3:00 PM while he was in the holding pen. At 5:19
PM, the person in custody was transferred out of the building to another jail.

Incident #9
Over the course of several days, a person in custody was involved in multiple violent incidents in mental
observation housing units in the same jail. On one occasion, while eating breakfast in the dayroom, he
was punched in the head by another person, without provocation. A few days later, on October 23, 2023,
following the evening meal, he refused to return to his housing area, and was taken to the main intake,
where he was placed in a holding cell at 5:50 PM.
Shortly after midnight, a group of five correction officers and one captain approached the holding cell and
activated their body-worn cameras. As they approached, the person in custody, who appeared highly
agitated, can be heard repeatedly saying: “No,” and: “I’m not going.” He then began rubbing an apple on
the lock of the cell, in an attempt to jam it, and told the correction officers: “Y’all are crazy. Who want to
go up there [to the housing area]? I told you them [expletive] tried to jump me and kill me. Get the
[expletive] away from me.”
“Sir, we need you to comply, or chemical agents will be deployed,” a correction officer warned him. “Turn
around and put your hands behind your back.”
At 12:05 AM, a correction officer entered the cell. Multiple officers shouted, “Turn around!” at the person
in custody, who can be seen waving his hand and then dropping it to his side. Two seconds later, the
The camera angle does not provide a conclusive indication as to whether the officer deployed the MK-9 OC from
a distance less than six feet. The officer present who was assigned to film did not activate the handheld camera until
after the MK-9 was deployed. As such, this case was not categorized by BOC staff as having violated the six-feet
policy.
71

31

correction officer sprayed the person in custody directly in the face, from a distance of what appeared to
be less than three feet, as the person in custody stood still.
In his report, the correction officer who deployed the chemical agent wrote: “Said inmate then begin [sic]
to walk towards this writer still non complaint [sic] and irate screaming hes [sic] not going anywhere. This
writer attempted to crate [sic] space in between us, but couldnt [sic] because the holding cell was small
in size which prevented this writer to [sic] from stepping to the side futhermore [sic] DOC staff were
directly behind me which prevented this writer to take a step back. This writer then utilized one two
second burst of chemical agents in which [sic] had its desired effect.”
After being sprayed, the person in custody was rear-cuffed and escorted to the decontamination shower.
He was then taken to the main clinic to be evaluated for injuries. He entered the examination cubicle at
12:15 AM, still in rear restraints, and exited it at 12:16. At no point were his restraints removed, nor was
he allowed privacy with the clinician, as DOC staff remained present throughout. The clinician reported
that the person in custody refused the examination.
The person in custody was next returned to a mental observation housing unit and, as he was escorted
down the corridor, he can be heard saying: “You are taking me back to that area to get jumped.”
The following day, he was transferred to the hospital, where he was admitted to the psychiatric unit.

Incident #10
On October 21, 2023, at 12:41 AM, a DOC officer in the main intake spoke to a person in custody in a
holding cell. At 12:42 AM, a captain and another correction officer joined the conversation, at which point
the person in custody removed his sweatshirt and began tying one of its sleeves to a bar of the cell. DOC
staff then activated their body-worn cameras. One of the correction officers approached the cell and
removed the sweatshirt from the bar. While this occurred, the captain can be heard saying to the person
in custody: “I will use my MK-9 this time. I’m not using anything else.” As he said this, the captain
unholstered his MK-9 cannister from his leg.
A correction officer then informed the person in custody: “You are going to a [housing area]. You cannot
stay in intake.”
The captain reaffirmed this. “We got you a house already, and you’re going.”
“What house is that?” the person asked. After ordering him to step up to the gate to be cuffed, the captain
informed him that he was being transferred to Unit A (his previous housing area, a general population
unit).
“I just had an incident there,” 72 the person in custody responded. “I’m not going there.”
At 12:46 AM, a correction officer unlocked the cell. The two correction officers and the captain entered it
and ordered the person in custody to turn around to be cuffed. The person in custody repeatedly asked:
“For what?” as he slowly backed away. DOC staff continued to order him to turn around. When he was
stopped by the wall from backing up any farther, a correction officer reached out and took control of the
72

DOC records indicate that this person in custody was involved in an “assault” in the unit 12 hours earlier.

32

person in custody’s wrist. As he applied a cuff to the person’s wrist, the second correction officer pointed
the chemical agent at the person in custody. “No, let him turn around first,” the captain said. But the
correction officer proceeded to spray the person in custody directly in the face from a distance that
appeared to be less than three feet. The captain then ordered the person in custody to place his hands
behind his back. The cuff dangled from his right wrist as he did so.
As the person in custody was escorted in rear-cuffs to the decontamination shower at 12:47 AM, he can
be heard asking a correction officer: “Why, bro? Just why?” He was escorted out of the decontamination
shower area at 1:05 AM and taken to the clinic at 1:07 AM.
Three days after this incident, he was transferred to a mental observation housing area in a different jail.

VIII. Conclusion and Recommendations
Based on the Board’s assessment, DOC officers are routinely bypassing anticipated use of force protocols
and precipitously deploying chemical agents. And, following these incidents, correction officers and
uniformed supervisors rarely document whether the force they used was anticipated or not.
Compounding this problem, COD makes its own independent assessment about which use of force
incidents are anticipated by DOC staff—a determination based on an incorrect interpretation of policy:
that anticipated use of force incidents only occur during cell extractions. DOC facility leadership is not
demonstrating a commitment to holding staff accountable to the anticipated use of force protocols in
their reviews of use of force incidents.
Until a practical distinction is made between anticipated and spontaneous uses of force, uniformed staff
will continue to treat instances of passive resistance as calls for the use of force, rather than as occasions
for verbal de-escalation, problem solving, and conflict resolution.

A. Recommendations
Training
1. All uniformed DOC staff should receive specialized and recurrent training on the Department’s
Anticipated Use of Force Protocols. To maximize attendance, these trainings should occur at preexisting congregate staff meetings within the jails, such as roll call trainings and facility leadership
meetings.
2. DOC should closely examine current chemical agent trainings and re-certification trainings to
determine areas for improvement. Trainings should be interactive and should include a review of
video incidents that demonstrate prohibited chemical agent practices highlighted in this report.
The mandatory eight-hour annual training for supervisors should be condensed in an effective
manner towards the goal of significantly increasing the training completion rate of uniformed
supervisors.

33

Monitoring
1. DOC should develop and implement a plan to promptly review and identify for completion each
use of force report that does not contain a determination with respect to whether the force was
anticipated. DOC should consider adjusting the use of force report form, so that the determination
can be made by checking a box, rather than descriptively writing the determination, as is currently
the case.
2. The Department should implement action steps necessary to ensure that its uniformed staff who
are not qualified to use OC devices based on expired annual training re-certifications are not
distributed OC handheld units until such time as they are re-certified.
3. The Department should conduct an assessment, to be shared with the Board, which reviews the
availability and response times of captains to calls for assistance by correction officers. This
assessment should include a survey of officers who regularly work in housing areas, to measure
the perceptions of these officers with respect to the availability and support of their supervisors.
4. DOC should review and improve the current mounting or “backing” system for its body-worn
camera devices, based on findings in this report.
5. The Department should improve its practices for collecting statements from people in custody
following use of force incidents and should record refusals to provide statements via body-worn
camera and include the time and location where the refusal occurred on the form.
Policy
1. DOC should improve its anticipated use of force reporting and tracking. Towards this goal, DOC
should change existing policy to require that facility leadership, during the Rapid Reviews of use
of force incidents, make an explicit determination as to whether each use of force incident should
have been anticipated. This determination should be called into the Central Operations Desk
(“COD”) and tracked in the Incident Reporting System. COD staff should cease making these
determinations.
2. DOC should immediately end its practice of using chemical agents on individuals found attempting
to hang themselves with a ligature around the neck that’s attached to another object. The
Department should revise its Chemical Agent Directive to explicitly prohibit this practice.
3. DOC should require that uniformed staff first seek and receive the approval of the Tour
Commander of the facility prior to deploying MK-9. This approval should be documented in
writing following the incident.
4. DOC and CHS should create an improved practice around mental health interventions for people
in custody in cases where DOC staff has exhausted the anticipated use of force protocols and are
unable to gain voluntary compliance from people in custody with direct verbal orders.
5. Since June 2020, CHS provides DOC Custody Management and Jail Operations a daily list of
persons in custody whose medical conditions may put them at higher risk for adverse reactions
to certain security-related actions (e.g., restrictive housing or chemical agents). DOC should
maintain this list in its control rooms and tour commander offices, and it should be electronically
accessible to all facility captains.

34

6. DOC should require all uniformed staff working in housing areas or any area where people in
custody are held or congregate to wear activated body-worn cameras at all times, with limited 73
exceptions. The expectation should be full-shift recording for all officers who are assigned to
directly supervise or work around people in custody.
7. DOC should conduct a review of lower strength handheld OC units and, based on the findings of
the review, design a plan to introduce the use of lower strength chemical agents in the jails.
Additionally, all DOC uniformed staff, but in particular staff who experience chronic pulmonary
conditions, should have the option to be assigned lower strength handheld OC units.

For example, when uniformed staff are conducting strip searches of people in custody or making security rounds
in bathroom areas.

73

35

Appendix A – Chemical Agent Incident Review Tool

Chemical Agent Incident Review Tool
Data Point

Source

Last Name, First Name

Incident Reporting System

UOF #

Incident Reporting System

Date of Incident

Incident Reporting System

Injury Classification (A/B/C)

Incident Reporting System

Book & Case Number

Incident Reporting System

Facility

Incident Reporting System

Self-Harm/Ligature (Y/N)

Incident Reporting System

DOC 24 Hour Report Language

Incident Reporting System

DOC "Reason for UOF"

Incident Reporting System

DOC "Anticipated Force" (Y/N)

Incident Reporting System

Age

Inmate Information System

MH Housing (Y/N)

Inmate Information System

PACE/CAPS/Suicide Watch

Inmate Information System

Race

Inmate Information System

Classification Score

Inmate Information System

Specific Injuries Diagnosed

Injury Report

Injury Documentation or Injury Evaluation Refusal?

Injury Report

PIC Statement (Y/N)

PIC Voluntary Statement Form

DOC Anticipated UOF Determination (direct language in UOF Report)

Use of Force Reports

False Reporting - BOC Assessment (Y/N)

Use of Force Reports/Video Review

Nature of False Report - BOC Assessment

Use of Force Reports/Video Review

Anchored Ligature (Y/N)

Use of Force Reports/Video Review

Genetec/Body Worn Camera/Handheld Video Available

Use of Force Reports/Video Review

Reason for refusing staff orders, as articulated by PIC

Use of Force Reports/Video Review

OC verbal warning by staff (Y/N)

Use of Force Reports/Video Review

Less Than 3 Feet? Or 6 Feet if MK9 - BOC assessment (Y/N)

Use of Force Reports/Video Review

MK-9? (Y/N)

Use of Force Reports/Video Review

If passive resistance to verbal orders, reason articulated by PIC

Use of Force Reports/Video Review

If no BWC, reason per Rapid Review

Use of Force Reports/Video Review

Probe Team? (Y/N)

Use of Force Reports/Video Review

Supervisor Present (Y/N)

Use of Force Reports/Video Review

Supervisor Deployed OC (Y/N)

Use of Force Reports/Video Review

Supervisor Ordered OC Deployed (Y/N)

Use of Force Reports/Video Review

Rapid Review - Avoidable? (Y/N)

Rapid Review

Rapid Review - Avoidable Description

Rapid Review

Use of Force - Avoidable?

DOC ID Preliminary Report

36

Use of Force - Unnecessary?

DOC ID Preliminary Report

Discipline (Rapid Review or DOC ID)

DOC ID Preliminary Report

If discipline, why?

DOC ID Preliminary Report

Missing Use of Force Reports?

DOC ID Preliminary Report

Misleading Reports?

DOC ID Preliminary Report

Closed or referred for full investigation?

DOC ID Preliminary Report

37

The Department has carefully reviewed the Board’s January 2024 report entitled “An
Assessment of the Use of Chemical Agents in New York City Jails,” giving particular attention to
the ten cases highlighted at pages 20 to 32 of the Report. We have these comments:
1. In many of the cases, the Department agrees that the use of chemical agent was

unnecessary and that other steps should have been taken to de-escalate the situation.
For example, in some cases an individual in custody was refusing to follow an officer’s
order but did not pose a threat to the officer’s safety or the safety of anyone else or the
facility. The incarcerated individual in several of the cases was housed in a mental
observation unit, and their conduct was erratic. That may account for the officers’
frustration and concern, but does not justify using OC spray. Additional training,
including a review of the videos from the ten incidents, is needed. (The Training and
Development Division has already begun revisions to the one-hour OC supervisor
training.)

2. In at least one of the ten incidents, MK-9 chemical agent was sprayed at an individual,

and in other instances, its use was threatened. Under Department policy, MK-9 is to be
used for crowd control and not on an individual who is disobeying an order. Training to
underscore the point is also needed.

3. As the report notes, there were instances in which the use of force was anticipated, but

the Department did not follow its use of force protocols, including seeking medical and
mental health intervention. The officer sprayed first and then sought medical treatment.
That said, we believe that the Board has interpreted the phrase “anticipated use of
force” too broadly. An anticipated use of force exists when (i) it is clear to a responding
officer that the incident seems likely to result in a use of force, including a possible use
of a chemical agent; (ii) there is sufficient time to enlist a supervising officer and consult
with medical staff and mental for assistance and contraindications; and (iii) the delay in
using force will not exacerbate the situation. The paradigmatic case is a cell extraction
where an individual refuses to leave their cell but does not pose a threat to any
individual or the security of the facility. The mere fact that an officer recognizes that
force may be necessary if they cannot gain control of a situation by interpersonal
communication skills or other non-force means, does not make it an anticipated use of
force. It is clear, however, that officers need additional training on anticipated use of
force protocols, and the Department intends to provide it.

4. The Report recommends that the Department “immediately end the practice of using

chemical agents on individuals found attempting to hang themselves with a ligature
around the neck that’s attached to another object.” The Department recognizes that
spraying an individual who is already struggling to breathe is exceedingly problematic. A
per se rule may be needed. There are instances, however – one occurred recently —
where an individual appears to feign hanging as a ploy to lure an officer into a cell so
that the officer can be attacked. An officer must be alert to the possibility, even if it is
not likely.

5. The Report notes that the Department uses the “strongest (or ‘hottest’) of the three

chemical agent formulations” and cites to a 2020 article which supposedly found “no
clear evidence that more concentrated pepper sprays were more effective.” The article
does not say that. Rather, it concludes that level 3 sprays (the highest concentration) are
“more likely to have an immediate effect but were also related to higher chances that
decontamination was needed after use.” Because situations often require a chemical
agent that has an “immediate effect,” carrying the highest concentration spray is a
reasonable policy. We intend, however, to survey other New York counties as well as
other comparable jail systems to learn what concentration sprays they are using.

6. Other findings in the Report are concerning and require further attention, including (i)

whether a lack of mounting plates has resulted in the underutilization of body-worn
cameras; (ii) whether officers have not received their required annual OC recertification;
(iii) whether properly updated certification lists are being maintained in the control
room of each facility; (iv) and whether Captains and above are receiving the required
supervisor training. If deficiencies exist, they will be rectified.

7. As the Board is aware, the Monitoring Team has weighed in on some of the Board’s

recommendations, and we will continue to discuss these issues with them before
finalizing any changes in our policies.