Use of Force: ATF Policy, Training and Review Process Are Comparable to
DEA's and FBI's (Chapter Report, 03/29/96, GAO/GGD-96-17).
Pursuant to a congressional request, GAO reviewed the Bureau of Alcohol,
Tobacco, and Firearms' (ATF) use of deadly force and dynamic entry,
focusing on: (1) ATF policies on the use of deadly force; (2) how ATF
conveys its policies to its agents; (3) the reasons for and the extent
to which ATF uses dynamic entry and what equipment it uses; (4) ATF
compliance with its procedures for investigating shooting and alleged
excessive force incidents; and (5) how the Drug Enforcement
Administration (DEA) and the Federal Bureau of Investigation (FBI)
address similar issues.
GAO found that: (1) except for a few instances, the 1988 ATF policy on
deadly force was consistent with prior DEA and FBI policies and the 1995
Departments of the Treasury and Justice uniform policies which
superceded their agencies' policies; (2) agents may use deadly force
only when they reasonably believe that suspects pose an imminent threat
of death or serious injury to themselves or other persons; (3) the three
agencies' new agent training in their deadly force policies is similar
and all agents are required to be retrained on a quarterly basis
throughout their careers; (4) dynamic entry is used to ensure personal
safety when access to premises is needed in high-risk situations or when
suspects might swiftly destroy evidence; (5) the three agencies' method
of dynamic entry and weaponry and equipment used was similar; (6) ATF
reporting, investigating, and review procedures for shooting and
excessive force incidents are consistent with recommended standards and
similar to the other agencies'; (7) ATF and DEA excessive force
procedures are generally comparable, but FBI procedures require that all
allegations be submitted to Justice for possible criminal or civil
rights violations before the allegations are self-investigated; (8) ATF
generally complied with its investigative procedures during fiscal years
1990 through 1995; (9) ATF found that all intentional shootings were
justified, most allegations of excessive force were unsubstantiated, and
5 agents warranted sanctioning for misconduct; and (1O) ATF is
implementing lessons learned from the incidents, particularly the Waco,
Texas, raid.
--------------------------- Indexing Terms -----------------------------
REPORTNUM: GGD-96-17
TITLE: Use of Force: ATF Policy, Training and Review Process Are
Comparable to DEA's and FBI's
DATE: 03/29/96
SUBJECT: Law enforcement agencies
Search and seizure
Crimes or offenses
Firearms
Human resources training
Law enforcement personnel
Arrests
Constitutional rights
Investigations by federal agencies
IDENTIFIER: Waco (TX)
FBI Firearms Training System
ATF Inventory Tracking and Equipment Management System
ATF On-the-Job Training Program
Federal Law Enforcement Training Center Criminal
Investigator Training Program
Federal Law Enforcement Training Center Use of Force Model
M16 Automatic Weapon
******************************************************************
** This file contains an ASCII representation of the text of a **
** GAO report. Delineations within the text indicating chapter **
** titles, headings, and bullets are preserved. Major **
** divisions and subdivisions of the text, such as Chapters, **
** Sections, and Appendixes, are identified by double and **
** single lines. The numbers on the right end of these lines **
** indicate the position of each of the subsections in the **
** document outline. These numbers do NOT correspond with the **
** page numbers of the printed product. **
** **
** No attempt has been made to display graphic images, although **
** figure captions are reproduced. Tables are included, but **
** may not resemble those in the printed version. **
** **
** Please see the PDF (Portable Document Format) file, when **
** available, for a complete electronic file of the printed **
** document's contents. **
** **
** A printed copy of this report may be obtained from the GAO **
** Document Distribution Center. For further details, please **
** send an e-mail message to: **
** **
** **
** **
** with the message 'info' in the body. **
******************************************************************
Cover
================================================================ COVER
Report to the Chairman, Subcommittee on Treasury, Postal Service, and
General Government, Committee on Appropriations, House of
Representatives
March 1996
USE OF FORCE - ATF POLICY,
TRAINING AND REVIEW PROCESS ARE
COMPARABLE TO DEA'S AND FBI'S
GAO/GGD-96-17
ATF Use of Force
(187013)
Abbreviations
=============================================================== ABBREV
ACC - ATF's Associate Chief Counsel
ATF - Bureau of Alcohol, Tobacco and Firearms
CITP - Criminal Investigator Training Program
DEA - Drug Enforcement Administration
ELRB - ATF's Employee Labor Relations Board
FBI - Federal Bureau of Investigation
FLETC - Federal Law Enforcement Training Center
FTCA - Federal Tort Claims Act
HEAT - High Risk Entry and Arrest Team
IACP - International Association of Chiefs of Police
MSPB - Merit System Protection Board
OCC - ATF's Office of Chief Counsel
OE - ATF's Office of Enforcement
OI - ATF's Office of Inspection
OJT - On-the-Job Training
OPR - Office of Professional Responsibility
PCIE - President's Council on Integrity and Efficiency
PRB - ATF's Professional Review Board
RAC - Resident Agent-in-Charge
SAC - Special Agent-in-Charge
SAR - Significant Activity Report
SIR - Shooting Incident Report
SIRB - Shooting Incident Review Board
SIRT - Shooting Incident Review Team
SRT - Special Response Team
SWAT - Special Weapons and Tactics
Letter
=============================================================== LETTER
B-262134
March 29, 1996
The Honorable Jim Lightfoot
Chairman, Subcommittee on Treasury,
Postal Service, and General Government
Committee on Appropriations
House of Representatives
Dear Mr. Chairman:
Your August 2, 1995, letter requested that we review various aspects
of the Bureau of Alcohol, Tobacco and Firearms (ATF). This report
responds to your questions concerning ATF's use of deadly force and
dynamic entry. Specifically, the report discusses (1) ATF's policies
for the use of deadly force; (2) how ATF conveys its policies to its
agents; (3) the reasons for and the extent to which ATF uses dynamic
entry and the equipment it uses to accomplish these entries; and (4)
ATF's compliance with its procedures for investigating shooting and
alleged excessive use-of-force incidents. The report also discusses
how ATF addresses these issues in comparison to the Drug Enforcement
Administration and the Federal Bureau of Investigation.
As agreed with your office, unless you publicly announce its contents
earlier, we plan no further distribution of this report until 30 days
from the date of this letter. At that time, we will send copies to
the Secretary of the Treasury, the Attorney General, the Director of
ATF, the Director of the Federal Law Enforcement Training Center, the
Administrator of the Drug Enforcement Administration, the Director of
the Federal Bureau of Investigation, and other interested parties.
Copies will be made available to others upon request.
Major contributors to this report are listed in appendix VII. Please
call me on (202) 512-8777 if you or your staff have any questions.
Sincerely yours,
Norman J. Rabkin
Director, Administration of
Justice Issues
EXECUTIVE SUMMARY
============================================================ Chapter 0
PURPOSE
---------------------------------------------------------- Chapter 0:1
According to the International Association of Chiefs of Police,
managing officers' use of force is one of the most difficult
challenges facing law enforcement agencies. The ability of officers
to enforce the law, protect the public, and guard their own safety is
very difficult in an environment where violent crime is commonplace
and firearms are frequently used for illegal purposes. Because the
Bureau of Alcohol, Tobacco and Firearms (ATF) is the federal agency
primarily responsible for enforcing firearms laws, its agents often
face this difficulty.
Over the past several years, ATF has come under public criticism and
congressional scrutiny, in part, due to citizen accusations that ATF
agents used excessive force in carrying out their enforcement
responsibilities. In August 1995, the Chairman of the Subcommittee
on Treasury, Postal Service, and General Government, House Committee
on Appropriations, asked GAO to (1) identify and describe ATF's
policies for the use of deadly force; (2) determine how ATF conveys
its policies to its agents; (3) determine the reasons for and the
extent to which ATF uses dynamic entry--a tactic used to gain rapid
entry to premises when serving high-risk search and arrest warrants
and which may include forced entry--and the equipment ATF uses to
accomplish these entries; and (4) determine whether ATF has complied
with its procedures for investigating shooting and alleged excessive
use-of-force incidents. The Chairman also asked GAO to compare how
ATF addresses these issues with the way the Department of Justice's
Federal Bureau of Investigation (FBI) and the Drug Enforcement
Administration (DEA) address them. While GAO determined whether ATF
complied with its procedures for investigating shooting and alleged
excessive use-of-force incidents on the basis of a review of
investigative file documents, it did not evaluate the quality and
adequacy of ATF's investigations. Neither did GAO verify whether all
incidents had been reported nor whether all incidents that had been
reported were investigated.
BACKGROUND
---------------------------------------------------------- Chapter 0:2
ATF, an agency of the Department of the Treasury, is responsible for,
among other things, investigating criminal violations of federal
firearms, explosives, arson, alcohol, and tobacco laws. As of
September 1995, ATF had 1,944 special agents; 1,777 of these agents
were assigned to 24 field divisions nationwide.
Treasury's use-of-force policy, revised in October 1995 and
applicable to ATF, is based on the premise of timely and effective
application of the appropriate level of force required to establish
and maintain lawful control. Both Treasury and Justice define
"deadly force" as use of any force that is likely to cause death or
serious physical injury. For example, any firearm discharge directed
at a suspect is considered to be deadly force.
As shown in table 1, ATF, on average, conducted over 12,000
investigations and arrested about 8,000 suspects during fiscal years
1990 through 1995. In the course of these activities, ATF was
involved in fewer than 10 reported shooting or alleged excessive
force incidents each year.
Table 1
Summary Table of ATF Investigations,
Arrests, Shootings, and Alleged
Excessive Force Incidents, FYs 1990-
1995
FY FY FY FY FY FY
1990 1991 1992 1993 1994 1995
---------------------------- ----- ----- ----- ----- ----- -----
Total investigations 11,74 13,73 15,11 13,47 11,96 10,50
1 5 7 9 5 5
Suspects arrested 7,104 8,301 8,631 6,607 9,595 6,692
ATF shooting 4 9 9 2 8 7
incidents\a
Alleged excessive force 3 2 5 3 8 4
incidents\b
----------------------------------------------------------------------
\a Reported intentional shootings at suspects by ATF agents.
\b Reported alleged excessive force incidents involving ATF agents.
Source: ATF.
RESULTS IN BRIEF
---------------------------------------------------------- Chapter 0:3
In October 1995, Treasury and Justice issued uniform policies
governing the use of deadly force for each of their bureaus and
agencies. The revised policies permit law enforcement officers to
use deadly force only when an officer has a reasonable belief that
the subject of such force poses an imminent danger of death or
serious physical injury to the officer or another person. GAO
determined that the 1988 ATF use of deadly force policy, which was in
effect before the issuance of the October 1995 Treasury policy, was,
with the two distinctions discussed in the principal findings,
consistent with the 1995 Treasury policy. In addition, ATF's 1988
policy was, with the three distinctions discussed in the principal
findings, consistent with FBI and DEA policies that were in effect
immediately before the issuance of the 1995 uniform policies.
ATF conveys its deadly force policies to new agents through training.
GAO's discussions with training officials, reviews of course
materials, and observations showed that the types of deadly force
training provided new ATF agents were consistent with the types of
training provided new DEA and FBI agents. Moreover, ATF policy
requires that all ATF agents be instructed on the deadly force policy
at least quarterly throughout their careers. In the fall of 1995,
GAO observed three ATF divisions' quarterly firearms qualifications.
At each qualification, firearms instructors reminded agents of the
policy.
According to ATF officials and GAO analysis of selected ATF data for
fiscal year 1995, dynamic entry was a principal tactical procedure
employed by ATF when access to premises was required to execute
search and arrest warrants in high-risk operations--those posing a
threat of violence--or in operations where evidence could be easily
destroyed. According to ATF officials, ATF used dynamic entry when,
given the specific situation, it reduced the potential for injury to
those involved. According to FBI and DEA officials, dynamic entry
also was a principal tactic used to execute their high-risk warrants
where entry to premises was required. The equipment used by ATF,
DEA, and FBI during dynamic entries is generally comparable on the
basis of GAO's observations at division offices, discussions with
agency officials, review of ATF inventory listings, and analysis of
selected operations reports for fiscal year 1995.
ATF's procedures for reporting, investigating, and reviewing shooting
incidents and alleged use of excessive force incidents are consistent
with standards recommended by organizations such as the President's
Council on Integrity and Efficiency. Overall, ATF's shooting
incident procedures are comparable with DEA's and FBI's with two
distinctions. GAO identified distinctions between ATF and these
agencies in the delegation of investigative responsibilities and
representation on review boards. Also, ATF's excessive force
procedures are comparable to DEA's with one distinction relating to
delegation. However, ATF's procedures are not comparable to FBI's
mainly because of distinctions regarding the referral of excessive
force allegations to Justice for possible civil rights violations.
GAO's review of ATF's investigative files for its reported
intentional shooting incidents and alleged use of excessive force
incidents for fiscal years 1990 through 1995 showed that ATF (1)
complied with its investigative procedures with an exception
discussed below; (2) found that all intentional shootings were
justified; (3) found most allegations of excessive use of force were
unsubstantiated; and (4) sanctioned agents it determined had engaged
in misconduct.
PRINCIPAL FINDINGS
---------------------------------------------------------- Chapter 0:4
ATF'S DEADLY FORCE POLICIES
HAVE REMAINED GENERALLY
CONSISTENT IN RECENT YEARS
AND ARE GENERALLY CONSISTENT
WITH FBI AND DEA POLICIES
-------------------------------------------------------- Chapter 0:4.1
State rules and U.S. Supreme Court guidance on the use of deadly
force have been evolving for a number of years. Approaches among the
states on the use of deadly force have ranged from those that place a
predominant emphasis on the apprehension of a fleeing felon to those
that permit such force only with respect to dangerous suspects and
impose several qualifications on the use of such force. Within this
context, federal law enforcement agencies have adopted policies to
govern their employees' use of deadly force. (See p. 28.)
In October 1995, Treasury and Justice adopted use of deadly force
policies for their component agencies that are uniform with the
exception of certain agency mission-specific provisions covering, for
example, Justice's prisoner-related responsibilities. Both policies
provide that their respective officers may use deadly force only when
necessary, that is, when the officer has a reasonable belief that the
subject of such force poses an imminent danger of death or serious
physical injury to the officer or another person. (See p. 33.)
The 1988 ATF use of deadly force policy, in effect before the
issuance of the October 1995 Treasury policy, was, with two
distinctions, consistent with the new policy. The two distinctions
were that (1) the 1995 Treasury policy referred to the use of "deadly
force" while the 1988 ATF policy referred more specifically only to
the use of a "firearm" and (2) the 1995 Treasury policy allows for
the use of deadly force only when the law enforcement officer has a
"reasonable belief" that there is an imminent danger of death or
serious physical injury while the 1988 ATF policy allowed for the use
of such force when the agent "perceives" an imminent threat of death
or serious physical injury. (See p. 34.)
In addition, the prior ATF policy was, with three distinctions,
consistent with prior DEA and FBI policies. The three distinctions
were that (1) ATF's policy alone provided the additional qualifying
restriction that the threat of death or serious bodily harm be
"imminent," (2) the ATF and DEA policies referred to the shooting of
"firearms" while the FBI policy used the term "deadly force," and (3)
the ATF policy used the term "perceives" while the DEA and FBI used
the term "reasonably believe" and "reason to believe," respectively.
(See p. 35.)
ATF, DEA, AND FBI CONVEY
DEADLY FORCE POLICIES TO
THEIR AGENTS IN SIMILAR WAYS
-------------------------------------------------------- Chapter 0:4.2
ATF conveys its deadly force policies to new agents through training.
GAO's discussions with training officials, reviews of training
materials and policies, and observations showed that the training
provided new ATF agents to introduce them to the deadly force
policies was consistent with the Treasury/ATF deadly force policies
and the types of training provided were consistent with the training
provided to new DEA and FBI agents. (See p. 37.)
GAO's discussions and review of course materials also showed that
within the first week of training, each agency provides new agent
trainees with a classroom lecture and discussion describing, with
examples, the agency's use-of-force and deadly force policies.
Thereafter, each agency integrates use-of-force issues into other
segments of the training where force could be a relevant issue, such
as training in physical control techniques. Each agency employs
training techniques, such as practical exercises, that use
role-playing and firearms judgment exercises that require shoot or
not-to-shoot decisions. Furthermore, each agency trains new agents
in how to recognize the perceived level of threat they face and in
how to respond to it with an appropriate level of force. (See p.
42.)
Once new agent training is completed, ATF requires that the
use-of-force policies are to be reiterated to agents throughout their
careers at quarterly firearms qualifications and during tactical
operations briefings. In the fall of 1995, GAO observed three
divisions' quarterly qualifications, interviewed the divisions'
Firearms Instructor Coordinators, and reviewed documentation of prior
qualifications and used these observations, interviews, and
documentation to confirm that the deadly force policy was reiterated
during qualifications at these three divisions. Also, agents at the
qualifications with whom GAO spoke confirmed that the policy was
reviewed before every tactical operation. DEA and FBI officials said
that deadly force policies are also to be reiterated at their
quarterly firearms qualifications. (See p. 43.)
ATF'S USE OF DYNAMIC ENTRIES
AND RELATED EQUIPMENT IS
GENERALLY COMPARABLE TO
FBI'S AND DEA'S
-------------------------------------------------------- Chapter 0:4.3
Dynamic entry is one of several tactical procedures used by ATF to
execute search and arrest warrants. Dynamic entry, which relies on
speed and surprise and may involve forced entry, is a preferred
tactic during high-risk operations--those where ATF believes that
suspects pose a threat of violence--or in operations where evidence
can be easily destroyed. ATF statistics on suspects arrested from
firearms investigations during fiscal years 1990 to 1995 showed that
46 percent of the suspects had previous felony convictions, 24
percent had a history of violence, and 18 percent were armed at the
time of their arrests.\1 (See pp. 47 and 56.)
All ATF case agents, including those assigned to special weapons and
tactics units, known as Special Response Teams (SRT), are to be
trained in the dynamic entry technique. GAO observed new agent and
SRT training sessions where ATF agents made dynamic entries into
buildings during practical exercises. Moreover, according to ATF
officials, ATF agents primarily used the dynamic entry technique to
gain entry to buildings during high-risk search and arrest warrants.
(See p. 53.)
From fiscal year 1993 through 1995, ATF conducted 35,949
investigations and arrested 22,894 suspects. During this same
period, SRTs were deployed 523 times, and SRT members were involved
in 3 intentional shooting incidents, 1 of which resulted in
fatalities. GAO reviewed the available documentation for all 157 SRT
deployments for fiscal year 1995 and found that the dynamic entry
technique was used almost half the time and was the predominant
technique used when an entry to a building was required. However, in
none of the 1995 SRT dynamic entries did ATF agents fire their
weapons at suspects. (See p. 54.)
According to ATF, DEA, and FBI officials, the primary purpose of
dynamic entry is to ensure the safety of agents, as well as suspects
and other individuals, by reducing the potential for suspects to
react to the notification of warrant service. However, in October
1995, ATF decided that a dynamic entry could be planned only after
all other tactical options had been considered. According to
officials, DEA and FBI agents and specialized teams also often use
dynamic entries during high-risk search and arrest warrant operations
to ensure the safety of agents and suspects. (See p. 49.)
The equipment available for use by ATF agents during dynamic entries
generally includes weaponry; breaching equipment, such as battering
rams; and/or other tactical equipment designed for safety, such as
ballistic vests, helmets, and body bunkers. Body bunkers are
ballistic shields that can provide additional protection to agents as
they enter and search premises. In addition to the equipment
available to all ATF agents, SRTs have access to additional firearms,
such as bolt-action rifles, and specialized tactical equipment, such
as diversionary devices. GAO's review of SRT deployment reports for
fiscal year 1995 showed that diversionary devices represented the
specialized equipment most often used by SRTs. (See p. 57.)
Vehicles used by SRTs generally included vans and trucks that were
used for deployments and storing equipment. GAO's review of fiscal
year 1995 SRT deployment reports, found that SRTs most often used
aircraft to obtain aerial photography of suspects' locations. In
only one fiscal year 1995 operation did an SRT use aircraft to
transport agents. ATF equipment, vehicles, aircraft, and clothing
used by SRT's are generally comparable to those used by DEA and FBI
agents during similar operations on the basis of GAO's observations
at divisions, discussions with agencies' officials, review of ATF
equipment lists, and analysis of SRT deployment reports. (See pp.
60 and 63.)
--------------------
\1 ATF did not compile data for suspects armed at arrest for fiscal
years 1990 and 1991.
ATF COMPLIED WITH ITS
PROCEDURES FOR INVESTIGATING
SHOOTING AND ALLEGED
EXCESSIVE FORCE INCIDENTS
-------------------------------------------------------- Chapter 0:4.4
ATF's procedures for reporting, investigating, and reviewing shooting
and excessive force incidents were revised in October 1994. The
revisions included changes to shooting incident reporting
requirements and procedures, including which types of shooting
incidents are and are not to be reported. ATF procedures are
consistent with guidelines and/or standards recommended by the
International Association of Chiefs of Police, the President's
Council on Integrity and Efficiency, and the Commission on
Accreditation for Law Enforcement Agencies. For example, agents are
required to immediately report shooting incidents to their
supervisors, incidents are to be investigated by an independent unit,
and certain reports are to be reviewed by a review board on the basis
of the nature and seriousness of the incident. (See p. 65.)
Overall, DEA and FBI procedures for reporting, investigating, and
reviewing shooting incidents are comparable to ATF's. For example,
each agency requires that investigations address similar issues and
that reports contain similar types of information. Distinctions in
the procedures include (1) DEA and FBI delegate some investigative
responsibilities to their field divisions--ATF does not delegate such
responsibility and (2) DEA's and FBI's review boards include
representatives from Justice--ATF's review board does not include
representatives from Treasury. While ATF's excessive force
procedures are comparable to DEA's with one distinction relating
again to delegation, they are distinct from those employed by FBI.
ATF is to investigate allegations of excessive force first and--if
warranted--is to refer them to Justice for possible criminal
investigation. In contrast, FBI refers all allegations of excessive
force to Justice's Civil Rights Division for possible criminal
investigation before investigating the allegations itself. (See p.
73.)
GAO's review of documents in ATF's investigative files for reported
shooting and excessive use-of-force incidents, for fiscal years 1990
through 1995, showed that ATF complied with its investigative
procedures except that two investigative files did not include a
required record of review\2 by the designated unit at ATF
headquarters. GAO's review also showed that ATF's investigations of
38 reported shootings involving ATF agents' discharging their weapons
at suspects found each to be justified and within the scope of its
use-of-force policy. In addition, ATF's investigations found that 18
of 25 reported allegations of excessive force were unsubstantiated.
Four investigations found evidence of some agent misconduct, such as
an agent who confiscated drugs from an informant but failed to turn
in or report the drugs. Two of the investigations were ongoing at
the time of GAO's review, and one was closed without action because
ATF determined that there was no need for adjudication. ATF agents
found to have engaged in misconduct received written reprimands and
suspensions. (See p. 83.)
Due to time and/or methodological constraints, GAO did not evaluate
the events that resulted in the incidents or the quality and adequacy
of ATF's investigations. In addition, GAO did not verify whether all
shooting or excessive force incidents were reported or whether all
reported excessive force incidents were investigated. Accordingly,
GAO's conclusions about ATF's compliance with its investigative
procedures are based on GAO's review of ATF investigative file
documentation required by these procedures and apply only to these
files. (See pp. 83 and 90.)
GAO did not review the shootings arising from ATF's operation at the
Branch Davidians' compound in Waco, TX. This incident was
independently investigated by Treasury, which identified shortcomings
in ATF's operations and reported its findings in September 1993. In
October 1995, ATF reported the actions it had taken in response to
Treasury's findings. (See p. 25.)
--------------------
\2 A document maintained in the investigative file that indicates who
reviewed the file and, where applicable, any annotated comments
resulting from the review.
RECOMMENDATIONS
---------------------------------------------------------- Chapter 0:5
GAO is making no recommendations in this report.
AGENCY COMMENTS
---------------------------------------------------------- Chapter 0:6
GAO requested comments on a draft of this report from the Secretary
of the Treasury and the Attorney General. In separate meetings on
March 1, 1996, the Senior Advisor to the Under Secretary of the
Treasury for Enforcement and ATF officials provided Treasury's
comments, and the Director of the Audit Liaison Office under the
Assistant Attorney General for Administration provided Justice's
comments. Also present at the Justice meeting were officials from
the Office of the Attorney General, the Office of the Deputy Attorney
General, the Criminal Division, DEA, and FBI. Overall, the Treasury
and Justice officials either characterized the report as balanced,
accurate, and thorough or had no comments. They provided some
technical comments that GAO has incorporated in this report, where
appropriate. (See p. 27.)
INTRODUCTION
============================================================ Chapter 1
According to the International Association of Chiefs of Police
(IACP), managing officers' use of force is one of the most difficult
challenges facing law enforcement agencies. The ability of officers
to enforce the law, protect the public, and guard their own safety is
very difficult in an environment in which violent crime is
commonplace and firearms are frequently used for illegal purposes.
For the agents of the Bureau of Alcohol, Tobacco and Firearms (ATF),
suspected illegal firearms activities are the leading cause for their
initiating enforcement actions.
Over the past several years, ATF has come under public criticism and
congressional scrutiny primarily as a result of its operation at the
Branch Davidians' compound in Waco, TX, and citizen accusations that
ATF agents used excessive force in carrying out their enforcement
responsibilities. The February 1993 operation at the Branch
Davidians' compound was initiated to serve an arrest warrant on David
Koresh, the Davidians' leader, and to execute a search warrant on the
compound. When Koresh refused to accept the warrants, ATF tried to
forcibly enter the compound using a tactic known as dynamic entry but
simultaneously was met with gunfire from the Branch Davidians. In
the ensuing gun battle, four ATF agents and six Branch Davidians were
killed.
OVERVIEW OF ATF ENFORCEMENT
ACTIVITIES
---------------------------------------------------------- Chapter 1:1
ATF is a law enforcement agency within the Department of the Treasury
with responsibilities directed toward reducing violent crime,
collecting revenue, and protecting the public. ATF enforces the
federal laws and regulations relating to alcohol, tobacco, firearms,
explosives, and arson. Among its missions, ATF is to work directly
and in cooperation with others to (1) suppress and prevent crime and
violence through enforcement, regulation, and community outreach and
(2) support and assist federal, state, local, and international law
enforcement.
To accomplish its criminal enforcement responsibilities, ATF has 24
field divisions, headed by special agents-in-charge (SAC), located
throughout the United States. As of September 1995, ATF had a total
of 1,944 special agents of which 1,777 were assigned to its field
divisions. ATF's special agents are to initiate criminal
investigations when notified of suspected illegal activities by such
sources as informants; undercover operatives; and referrals from ATF
inspectors and other federal, state, and local law enforcement
agencies. Figure 1.1 is an ATF organization chart, as of January
1996, that depicts the principal units discussed in this report.
Figure 1.1: ATF Organization
Chart, as of January 1996
(See figure in printed
edition.)
Source: ATF.
As table 1.1 shows, the vast majority of ATF's enforcement activities
have been directed at suspects who are believed to be engaged in
illegal firearms activities. Suspicion of illegal firearms
activities is the principal reason that initiates ATF firearms
investigations.
Table 1.1
Investigations Initiated by ATF, FYs
1990-1995
FY FY FY FY FY FY
Investigation type 1990 1991 1992 1993 1994 1995
---------------------------- ----- ----- ----- ----- ----- -----
Firearms 9,753 11,74 12,59 10,48 9,227 7,606
5 8 9
Arson 668 808 1,462 1,955 1,629 1,739
Explosives 1,192 1,079 952 873 888 890
Tobacco 8 15 13 14 19 33
Alcohol 12 9 10 17 9 29
Other 108 79 82 131 193 208
======================================================================
Total 11,74 13,73 15,11 13,47 11,96 10,50
1 5 7 9 5 5
----------------------------------------------------------------------
Source: ATF.
On the basis of its investigations, ATF apprehends individuals that
it suspects of criminal violations. As can be seen from table 1.2,
most of the individuals ATF arrested were suspected of violating
firearms laws.
Table 1.2
Suspects Arrested by ATF, FYs 1990-1995
FY FY FY FY FY FY
Investigation type 1990 1991 1992 1993 1994 1995
---------------------------- ----- ----- ----- ----- ----- -----
Firearms 6,355 7,599 7,971 6,092 8,687 6,034
Arson 276 293 286 275 477 304
Explosives 422 365 342 218 374 284
Tobacco 8 3 3 3 10 21
Alcohol 1 10 9 4 0 12
Other 42 31 20 15 47 37
======================================================================
Total 7,104 8,301 8,631 6,607 9,595 6,692
----------------------------------------------------------------------
Source: ATF.
WHAT ARE USE OF FORCE AND
DEADLY FORCE?
---------------------------------------------------------- Chapter 1:2
According to IACP, use of force has been construed to include a wide
range of techniques used to compel compliance. Such techniques range
from verbal persuasion--the lowest force level-- to deadly force--the
most severe force level--and everything in between, including
physical force, stun guns, tear gas, batons, and other nonlethal
equipment. The variety of coercive options available to agents in a
confrontational setting is often referred to as the "force
continuum."
According to Treasury policy on the use of force, the primary
consideration in its use is the timely and effective application of
the appropriate level of force required to establish and maintain
lawful control. ATF training materials note that the use of force by
law enforcement officers in the performance of their duties has been
traditionally limited to four categories. Under these categories,
use of force is allowed if necessary to
overcome resistance to the officer's lawful commands,
effect an arrest or detain a suspect,
maintain custody and prevent escape, or
protect the officer or other persons.
Furthermore, the training materials note that in determining how much
force may be or should be used, the officer should consider such
factors as the
nature of the offense for which the suspect is being arrested,
e.g., felony or misdemeanor arrest;
number of participants on each side;
size, age, and condition of participants;
record and/or reputation of the suspect for violence;
use of alcohol or drugs by the suspect;
suspect's mental or psychiatric history;
presence of innocent bystanders; and
availability of less violent or nonlethal weapons.
In October 1995, Treasury and the Department of Justice adopted use
of deadly force guidelines that are uniform with the exception of
certain agency mission-specific provisions. For example, while
warning shots generally are not permitted under the Treasury and
Justice policies, the U.S. Secret Service may use warning shots in
exercising its protective responsibilities, the U.S. Customs Service
may use warning shots on the open waters, and Justice agencies may
use warning shots under certain circumstances within the prison
context.
In addressing the subject of nondeadly force, the Treasury and
Justice uniform policies recognize that if force other than deadly
force reasonably appears to be sufficient to accomplish an arrest or
otherwise accomplish the law enforcement purpose, deadly force is not
necessary. In commenting on the policy, both Departments committed
to take all reasonable steps to prevent the need to use deadly force.
Both Departments define deadly force as the use of any force that is
likely to cause death or serious physical injury. Therefore, any
firearms discharge that is intended to disable a suspect is
considered to be deadly force. However, the use of other weapons,
including those considered nonlethal, could be construed as a law
enforcement officer's having used deadly force, depending on the
manner in which the weapon was used. For example, hitting a suspect
in the head with a baton is considered to be the use of deadly force.
OBJECTIVES, SCOPE, AND
METHODOLOGY
---------------------------------------------------------- Chapter 1:3
In August 1995, the Chairman of the Subcommittee on Treasury, Postal
Service, and General Government, House Committee on Appropriations,
asked us to (1) identify and describe ATF's policies for the use of
deadly force; (2) determine how ATF conveys its policies to its
agents; (3) determine the reasons for and the extent to which ATF
uses dynamic entry and the equipment ATF uses to accomplish these
entries; and (4) determine whether ATF has complied with its
procedures for investigating shooting and alleged excessive
use-of-force incidents. While we determined whether ATF complied
with procedures for investigating shooting and alleged excessive
use-of-force incidents on the basis of a review of case file
documents, we did not evaluate the quality and adequacy of ATF's
investigations. In addition, except for a limited check discussed
later, we did not verify whether all shooting and alleged excessive
force incidents were reported or whether all reported allegations of
excessive force were investigated.
The Chairman also asked us to compare how ATF addresses the above
issues with the way that Justice's Federal Bureau of Investigation
(FBI) and the Drug Enforcement Administration (DEA) address them. In
addition, we were asked to determine (1) whether ATF applies lessons
learned from its reviews of shootings and allegations of excessive
use of force and (2) what authority ATF has to take adverse personnel
actions against agents, particularly in connection with excessive
use-of-force incidents.
OBJECTIVE 1
-------------------------------------------------------- Chapter 1:3.1
To identify and describe ATF's policies on the use of deadly force
and compare them to DEA's and FBI's, we reviewed pertinent Treasury,
Justice, ATF, DEA, and FBI policies and accompanying commentaries on
the use of deadly force that were available. Also, we reviewed
certain relevant U.S. Supreme Court and lower court decisions
involving the use of deadly force. We also interviewed appropriate
ATF, DEA, and FBI officials concerning their policies on the use of
deadly force.
OBJECTIVE 2
-------------------------------------------------------- Chapter 1:3.2
To determine how ATF conveys its deadly force policies to its agents,
we (1) visited the Federal Law Enforcement Training Center (FLETC)
and ATF's National Academy in Glynco, GA; (2) observed training
facilities, equipment, and ongoing classes--including Basic
Marksmanship, Judgment Pistol Shooting, Situational Response,
Non-Lethal Control Techniques, and Tactical Operations Planning; and
(3) spoke with officials about the overall training courses provided
new agents, in general, and the use-of-force and firearms training
provided, in particular. We also reviewed teaching guides and
student training materials for FLETC's Criminal Investigator Training
Course and ATF's New Agent Course. At the time of our visit to
FLETC, ATF did not have any students enrolled in criminal
investigator training for new agents, although there were new agent
classes in progress. However, we observed a class of new ATF agents
attending the National Academy.
We also met with FBI and DEA training officials to discuss their new
agent training courses and use of deadly force training; toured the
training academy at Quantico, VA, and observed the training
facilities and equipment; participated in a demonstration of the
Firearms Training System\1 and reviewed summaries of course materials
and instructor teaching guides for training that discussed use of
force. We compared use-of-force course descriptions and the types of
training provided new ATF agents to course materials and DEA and FBI
training officials' descriptions of the types of training provided
new DEA and FBI agents.
We also reviewed (1) ATF's manual for its new agent On-the-Job
Training Course and identified training objectives dealing with
use-of-force issues and (2) course training materials provided to
Special Response Teams (SRT)--ATF's version of special weapons and
tactics units--on use of force and deadly force.
We identified and reviewed ATF's policies requiring use-of-force
discussions during quarterly firearms training and during tactical
operational planning and operation briefings. On September 28, 1995,
October 13, 1995, and December 11, 1995, respectively, we observed
quarterly firearms training at three ATF field divisions--Baltimore;
Washington, D.C.; and Los Angeles\2 --to assure ourselves that the
required use-of-force discussion took place. We also interviewed the
divisions' Firearms Instructor Coordinators concerning firearms
training and use-of-force training and reviewed their records
documenting use-of-force discussions at prior quarters' training
sessions. At the firearms qualification sessions, we also
judgmentally selected and spoke with some attending ATF agents to
determine whether use-of-force discussions were a regular part of
tactical operation planning and operation briefings. Also, in these
divisions, we interviewed Assistant Special Agents-in-Charge
responsible for the SRT, SRT leaders, and group supervisors to
determine whether use-of-force discussions were a part of tactical
operation planning and operation briefings.
Finally, we compared FLETC and ATF training materials with relevant
Treasury/ATF use-of-force and deadly force policies to determine if
training materials complied with the policies.
While our review analyzed whether the agencies' training reflected
applicable use-of-force policies, we did not assess the effectiveness
of the agencies' training. In addition, we did not review new agent
attendance records while at FLETC or the ATF National Academy, nor
did we review agent personnel training records while we were at the
field divisions.
--------------------
\1 Reacting to realistic video scenarios and using laser pistols, new
agents employ the Firearms Training System in learning to make
split-second decisions about whether to shoot a suspect during a
confrontation.
\2 The Los Angeles division was chosen because of its relatively
large number of SRT activations and its more extensive inventory of
equipment available during high-risk operations. The remaining two
divisions were chosen because of their proximity to Washington, D.C.,
in our effort to complete our work in a timely and cost-effective
manner.
OBJECTIVE 3
-------------------------------------------------------- Chapter 1:3.3
To determine the reasons for and the extent to which ATF uses dynamic
entry and the equipment used in such entries, we reviewed ATF
policies, procedures, and documents regarding operational planning,
dynamic entries, equipment, and SRT units. Due to time constraints,
we did not review a sample of all ATF enforcement actions conducted
by all ATF agents to determine how often dynamic entry was used.
Because (1) SRTs are to be deployed to conduct ATF's higher risk
search and arrest warrants and SRTs have access to all of the
equipment available to ATF agents as well as additional specialized
equipment and (2) ATF maintains more thorough and readily available
data on SRT operations, including tactics and equipment used, than it
does on its other enforcement groups, we focused our review and
analysis of ATF's use of dynamic entry and related equipment to
operations involving SRT deployments. However, whenever possible, we
discussed the use of dynamic entries and related equipment by non-SRT
agents with headquarters and division officials.
We analyzed all SRT deployment activation reports for fiscal year
1995 to identify the reason for the deployment, the extent to which
the deployment used the dynamic entry tactic to enter a building,
whether the deployment resulted in force being used (e.g., shootings
or physical force), and whether the SRT used specialized equipment.
We also obtained an ATF statistical compilation of fiscal years 1993
and 1994 SRT activation data, which showed the number of activations,
the reason for deployments, deployments that resulted in force being
used (e.g., shootings), and whether special equipment was used.
Furthermore, we reviewed all shooting incident reports for fiscal
years 1990 through 1995 and determined the number of SRT incidents in
which ATF agents fired their weapons at suspects.
We also interviewed ATF officials in the Special Operations Division
to determine ATF's practices regarding the use of dynamic entries and
other tactics as well as the type of equipment used for these
operations. In addition, we discussed the use of dynamic entries
with ATF division officials, SRT team leaders, Tactical Operations
Officers, and agents at three ATF field divisions--Washington, D.C.;
Baltimore; and Los Angeles.
We reviewed training materials and observed some of the training
provided new agents at FLETC regarding dynamic entries and other
tactics and related equipment. We also reviewed training materials
used to train new SRT members during their initial 2-week training
session at Fort McClellan, AL. We analyzed all SRT training reports
for fiscal year 1995 to determine the type of in-service training
received, equipment used during training, and sources that provided
instruction. In addition, we observed the Washington Division SRT's
fourth quarter 1995 training to determine what tactical training was
received.
We spoke with officials from ATF's Property and Fleet Management
Section and Enforcement Support Branch regarding ATF policies and
controls on the equipment available for high-risk operations. We
also observed the equipment maintained and issued by the Enforcement
Support Branch in Rockville, MD, and the SRT equipment at the three
field divisions we visited. In addition, at the Washington, D.C.,
and Los Angeles divisions, we obtained listings of the SRT equipment
and vehicles as well as certain firearms, breaching tools, and other
tactical equipment available for dynamic entries. Although we
observed the SRT equipment maintained in Baltimore, we did not obtain
an equipment listing because at the time of our visit the SRT had
been recently merged into the Washington Division's SRT. We
discussed the use and sources of this equipment with the Tactical
Operations Officers, the SRT team leaders, and several agents in each
of the three division offices we visited. We also obtained and
reviewed comprehensive listings of rifles and tactical carbines, SRT
and armored vehicles, and aircraft in inventory throughout ATF from
ATF's Inventory Tracking and Equipment Management System.
In addition, we visited the FBI and DEA Washington field divisions to
compare ATF's use of dynamic entries and equipment to other federal
law enforcement agencies. At each division, we interviewed division
officials, including entry team leaders, to determine their use of
dynamic entries and other tactics and observed the equipment used by
the FBI Special Weapons and Tactics (SWAT) and DEA entry teams during
high-risk operations. On the basis of the standardization of
training provided for high-risk warrant service, both FBI and DEA
officials opined that their division's use of dynamic entry and
related equipment generally was representative of other field
divisions in their respective agencies. We also reviewed the
literature available from IACP and other law enforcement experts
regarding the use of equipment, dynamic entries, and other tactics by
law enforcement agencies.
OBJECTIVE 4
-------------------------------------------------------- Chapter 1:3.4
To determine whether ATF complied with its procedures for
investigating shooting and use-of-force incidents, we obtained and
reviewed the following information: (1) procedures for reporting,
investigating, and reviewing shooting and misconduct incidents; (2)
policies on administering adverse personnel actions against agents
found to have violated use-of-force policies; (3) policies on
protecting complainants from retaliation; (4) policies on ensuring
that lessons learned from investigations are transmitted to agents;
and (5) investigative guidelines and/or standards recommended by
IACP, the President's Council on Integrity and Efficiency (PCIE), and
the Commission on Accreditation for Law Enforcement Agencies. We
obtained similar information, where applicable, from DEA and FBI. We
also identified and reviewed legislation, regulations, and court
cases related to the use of force by law enforcement agencies.
We identified and reviewed files related to the investigation of
reported shooting and use of excessive force incidents during fiscal
years 1990 through 1995. For shooting incidents, we identified and
reviewed 38 of 39 incidents where ATF agents intentionally discharged
their weapons at suspects.\3 For use of excessive force incidents, we
identified and reviewed 92 investigations in three categories of
alleged agent misconduct: (1) misconduct during the execution of a
search warrant, (2) violation of a person's civil rights, and (3)
assault by an agent on a person. Because ATF does not maintain a
separate category for use of excessive force, we judgmentally
selected these categories following consultations with ATF officials
and a review of misconduct incident categories. The selection was
based on the likelihood that these categories would include most, if
not all, incidents of alleged use of excessive force. Of the 92
investigations, we found that 25 involved allegations of the physical
abuse of persons and/or property.
To place the shooting and use of excessive force incidents in
perspective, we obtained statistics related to ATF enforcement
actions, such as arrests and SRT deployments. At the request of the
Subcommittee, we also obtained shooting incident and enforcement
action data from DEA and FBI. However, it should be emphasized that
these data were not comparable to ATF's, given the agencies'
differences in missions, personnel levels, and some data definitions.
These data are presented in appendix V. As agreed with the
Subcommittee, we did not verify the accuracy of ATF's, DEA's, or
FBI's statistical data because of time limitations.
To determine ATF's compliance with its investigative procedures, we
reviewed ATF's investigative files for all 38 intentional shooting
incidents that were reported to and investigated by ATF from fiscal
years 1990 through 1995 as well as for the 25 alleged excessive force
incidents we selected. We based our compliance determination on
whether the information in the files indicated that the investigative
procedures had been followed. We looked for the required information
on (1) the incident, such as whether it resulted in injuries or the
type of law enforcement activity that resulted in the incident, and
(2) the investigation, such as who conducted the investigation, who
reviewed it, the types of information the investigation obtained and
analyzed, and the outcome of the investigation. Where documentation
was not initially found, we obtained documents and/or explanations
from ATF officials and considered them in our determination.
Due to time and methodological constraints, we did not evaluate the
quality and adequacy of the shooting and use of excessive force
investigations or the validity of their conclusions. We also did not
evaluate the circumstances, such as law enforcement actions, that
resulted in the shooting or use of excessive force incidents. In
addition, we did not verify the accuracy of the information in ATF's
files. Finally, we did not verify whether all shooting and alleged
excessive force incidents were reported or whether all reported
allegations of excessive force were investigated. We did, however,
do a limited check related to this matter by searching a computerized
news database and contacting two organizations with possible
knowledge of some incidents. The results of this limited check are
discussed in chapter 5.
We discussed issues related to our review, including the use of
excessive force, with officials from (1) ATF's Office of Inspection,
Office of Chief Counsel, and Office of Enforcement; (2) DEA's Office
of Inspections; (3) the FBI's Office of Inspection; and (4)
organizations that monitor law enforcement practices.
--------------------
\3 We did not review the Waco incident. No ATF file existed because
Treasury investigated the incident.
ADDITIONAL ISSUES
-------------------------------------------------------- Chapter 1:3.5
To determine whether, and how, ATF applies lessons learned from its
investigations, we (1) identified and reviewed the relevant sections
in ATF's investigative procedures; (2) obtained from ATF and reviewed
examples of lessons learned being implemented; (3) reviewed ATF's
October 1995 report on the actions taken in response to the lessons
learned from the Waco operation; and (4) discussed related issues
with cognizant ATF officials, including the Associate Director for
Enforcement.
To determine ATF's authority for administering adverse actions
against its personnel--including managers who perform poorly--we (1)
obtained and reviewed the relevant ATF adverse action orders, (2)
identified examples of personnel actions from our review of ATF's
investigative files, and (3) discussed adverse action issues with
staff from ATF's Employee Labor Relations Branch (ELRB) and the
chairman of the unit charged with reviewing incidents that may result
in adverse action being taken against ATF personnel. We also
obtained relevant documentation from DEA and FBI and compared it with
ATF's to identify any similarities and differences.
Our review was made between August 1995 and January 1996 in
accordance with generally accepted government auditing standards. We
provided drafts of this report to the Secretary of Treasury and the
Attorney General for comment. Responsible Treasury and Justice
officials provided oral comments at separate meetings on March 1,
1996.
AGENCY COMMENTS
---------------------------------------------------------- Chapter 1:4
At the March 1, 1996, meetings, the Senior Advisor to the Under
Secretary of the Treasury for Enforcement and ATF officials provided
Treasury's comments, and the Director of the Audit Liaison Office
under the Assistant Attorney General for Administration provided
Justice's comments. Also present at the Justice meeting were
officials from the Office of the Attorney General, the Office of the
Deputy Attorney General, the Criminal Division, DEA, and FBI. The
Treasury and Justice officials either characterized the report as
balanced, accurate, and thorough or had no comments. They provided
some technical comments that we have incorporated in this report,
where appropriate.
TREASURY AND JUSTICE USE OF DEADLY
FORCE POLICIES HAVE BEEN ADOPTED
TO REFLECT SUPREME COURT GUIDANCE
AND ARE GENERALLY CONSISTENT
============================================================ Chapter 2
State rules and Supreme Court guidance on the use of deadly force
have been evolving for a number of years. Approaches among the
states on the use of deadly force have ranged from those that place
an emphasis on the apprehension of a fleeing felon to those that
permit such force regarding dangerous suspects but with certain
qualifications. Within this context, federal law enforcement
agencies have, over the years, adopted policies to govern their
employees' use of deadly force. In October 1995, Treasury and
Justice adopted uniform policies on the use of deadly force. These
uniform policies, like those they replaced, were adopted to reflect
applicable Supreme Court guidance. Treasury's and Justice's
commentaries,\1 in general, explain that their policies were
formulated to be more restrictive on the law enforcement officer than
constitutional or other legal limits. ATF's 1988 use of deadly force
policy, which was in effect before the issuance of the 1995 Treasury
policy, was, with two distinctions as discussed in this chapter,
consistent with the new Treasury policy. In addition, the 1988 ATF
policy, was, with three distinctions as discussed in this chapter,
consistent with prior DEA and FBI policies.
--------------------
\1 Treasury and Justice issued written comments discussing and
elaborating upon their 1995 use of deadly force policies.
STATE RULES AND SUPREME COURT
GUIDANCE ON THE USE OF DEADLY
FORCE
---------------------------------------------------------- Chapter 2:1
STATE RULES HAVE VARIED
-------------------------------------------------------- Chapter 2:1.1
By 1985, the rules in the states governing the use of deadly force by
law enforcement officers varied.\2 These rules can generally be
grouped into three categories: (1) the common-law rule, (2) a
modified common-law approach, and (3) the Model Penal Code approach.
Many states followed something similar to the English common-law rule
on the use of deadly force, which existed at the time of this
country's founding. Generally, deadly force could be used by a law
enforcement officer if necessary to arrest a felony suspect. Because
the type of felony involved is not taken into account, this rule is
generally referred to as the "fleeing felon" rule. An officer could
use deadly force when he reasonably believed that he was justified in
arresting an individual for a felony as long as the officer also
reasonably believed that such force was necessary to protect himself
or prevent escape. To a great extent, the rationale behind the
fleeing felon rule was based on the fact that common-law felonies\3
were punishable by death, and the use of deadly force was seen as
merely accelerating the penal process, albeit without providing a
trial. For example, the 1982 Tennessee statute, which was found
unconstitutional in a landmark Supreme Court decision discussed
later, was based on the fleeing felon rule. The decision provided,
in part, that "[i]f, after notice of the intention to arrest the
defendant, he either flees or forcibly resists, the officer may use
all the necessary means to effect the arrest."\4
Some states used a modified common-law rule by specifying the
felonies for which deadly force may be used to arrest or by stating
that only "forcible felonies"--also called dangerous
felonies--justify the use of deadly force. An Illinois statute, for
example, listed the felonies that may trigger the use of deadly
force:
"'Forcible felony' means treason, murder, voluntary
manslaughter, aggravated criminal sexual assault, criminal
sexual assault, robbery, burglary, arson, kidnapping, aggravated
battery and any other felony which involves the use or threat of
physical force or violence against any individual."\5
Legislatures in other states abandoned the common-law rule for some
form of the Model Penal Code approach, which imposes several
qualifications on the use of deadly force. The Model Penal Code, as
formulated by the American Law Institute\6 in 1962, generally permits
the use of deadly force only when the crime for which the arrest is
made involves conduct including use or threatened use of deadly force
or when there is a substantial risk that the person to be arrested
will cause death or serious bodily harm if his apprehension is
delayed. More specifically, under the Model Penal Code approach, the
use of deadly force is not justified unless (1) the arrest is for a
felony, (2) the actor effecting the arrest is a peace officer or is
assisting a peace officer, (3) the actor believes such force creates
no substantial risk of injury to innocent persons, and (4) the actor
believes that the felony included the use or threatened use of deadly
force or there is a substantial risk that the suspect will cause
death or serious bodily harm if apprehension is delayed.\7
The Supreme Court noted, in 1985, that while there was not a constant
or overwhelming trend away from the common-law rule, a long-term
movement has been away from the emphasis that deadly force may be
used against any fleeing felon.\8
--------------------
\2 The issue of the use of deadly force was described by a 1975
decision of the U.S. Court of Appeals for the Second Circuit as an
area characterized by "shifting sands" and "obscured pathways." Jones
v. Marshall, 528 F. 2d 132, 141 (2d Cir. 1975).
\3 Common-law felonies were murder, rape, manslaughter, robbery,
sodomy, mayhem, burglary, arson, and larceny.
\4 Tenn. Code. Ann. section 40-7-108 (1982).
\5 Criminal Code of 1961 section 2-8, Ill. Ann. Stat. ch. 38,
section 2-8.
\6 The American Law Institute was founded in 1923 and is composed of
judges, law professors, and practitioners. Its objective is to
encourage the fair administration of justice throughout the nation by
advancing the uniformity of law, whenever practicable. This goal is
accomplished by the work of the Institute in proposing Model
Acts--statutory provisions that legislatures may enact in whole, in
part, or not at all.
\7 American Law Institute, Model Penal Code, section 3.07(2)(b).
\8 Tennessee v. Garner, 471 U.S. 1, 18 (1985).
TWO SUPREME COURT CASES HAVE
PROVIDED SOME GUIDANCE ON
THE USE OF DEADLY FORCE
-------------------------------------------------------- Chapter 2:1.2
In the 1985 Tennessee v. Garner decision\9 and the 1989 Graham v.
Connor decision,\10 the Supreme Court addressed the issue of when
police may reasonably use deadly force and provided some
clarification as to how courts should examine allegations that law
enforcement officers have used excessive force.
In Garner, a police officer shot and killed Edward Garner to prevent
his escape from the scene of a burglary, even though Garner did not
appear to be armed. Garner, after being told to halt, tried to climb
over a fence at night in the backyard of a house he was suspected of
burglarizing. With the aid of a flashlight, the officer was able to
see Garner's face and hands. Even though the officer saw no sign of
a weapon, he shot Garner in order to prevent his escape. The officer
argued that his actions were reasonable under a Tennessee statue that
provided that a law enforcement officer could use any means necessary
to make an arrest.
The Supreme Court, basing its determination on a Fourth Amendment\11
balancing test, struck down Tennessee's statute to the extent that it
authorized the use of deadly force against all fleeing suspected
felons, including nondangerous suspects. The Court noted that a
seizure occurs whenever an officer restrains the freedom of a person
to walk away.\12 The constitutionality of a seizure is determined by
balancing the nature and quality of the intrusion on the individual's
Fourth Amendment interests against the importance of the governmental
interests alleged to justify the intrusion. The Court then reasoned
that an apprehension using deadly force is also a seizure subject to
the reasonableness requirement of the Fourth Amendment. In using
this balancing test, the Court was not persuaded that shooting
nondangerous fleeing suspects is so vital as to outweigh the
suspect's interest in his own life. Thus, the Court found that the
use of deadly force to prevent the escape of all felony suspects,
whatever the circumstances, is constitutionally unreasonable. Hence,
the Court found Tennessee's statute unconstitutional to the extent
that it authorized the use of deadly force against nondangerous
fleeing suspects. However, the Court also found that it is not
constitutionally unreasonable to prevent escape by using deadly force
in certain limited circumstances:
"Where the officer has probable cause to believe that the
suspect poses a threat of serious physical harm, either to the
officer or to others, it is not constitutionally unreasonable to
prevent escape by using deadly force. Thus, if the suspect
threatens the officer with a weapon or there is probable cause
to believe that he has committed a crime involving the
infliction or threatened infliction of serious physical harm,
deadly force may be used if necessary to prevent escape, and if,
where feasible, some warning has been given."
In the 1989 Graham decision,\13 the Supreme Court provided some
clarification as to how courts should examine allegations that law
enforcement officers have used excessive force. In Graham, a
diabetic felt the onset of an insulin reaction and drove with a
friend to a convenience store to purchase orange juice. Upon
entering the store and seeing the number of people ahead of him at
the checkout line, Graham hurried out of the store to go to a
friend's house instead. A police officer became suspicious, followed
Graham's car, and made an investigative stop. Backup police officers
arrived, handcuffed Graham, and ignored Graham's attempts to explain
and treat his diabetic condition. Graham sustained various physical
injuries during the incident, was thrown headfirst into the police
car, and the officers refused to let him have some orange juice as a
remedy for his condition. Graham was later released when the
officers learned that nothing had happened at the store.
Graham brought an action against the officers involved in the
incident alleging that the officers had used excessive force in
making the investigatory stop. The District Court applied a
four-factor test\14 and ruled in the officers' favor. The Court of
Appeals for the Fourth Circuit, without attempting to identify the
specific constitutional provision under which Graham's claim arose,
endorsed the four-factor test applied by the District Court and
affirmed the District Court decision.
However, the Supreme Court ruled that the lower courts had applied
the incorrect legal standard and remanded the case in order for the
Court of Appeals to consider the claim under the Fourth Amendment's
reasonableness standard. In doing so, the Court declared that it was
making
"explicit what was implicit in the Garner analysis--that all
claims alleging that law enforcement officers have used
excessive force--deadly or not--in the course of an arrest,
investigatory stop, or other seizure of a free citizen should be
analyzed under the Fourth Amendment's 'reasonableness' standard
. . . ."
The Court explained that determining whether the force used to effect
a particular seizure is "reasonable" under the Fourth Amendment
requires a careful balancing of "the nature and quality of the
intrusion on the individual's Fourth Amendment interests against the
countervailing governmental interests at stake." While recognizing
that the test of reasonableness under the Fourth Amendment is not
capable of precise definition or mechanical application, the Court
explained that its proper application requires careful attention to
the facts and circumstances of each particular case, such as the
severity of the crime at issue, whether the suspect poses an
immediate threat to the safety of the officers or others, and whether
the suspect is actively resisting or attempting to evade arrest by
flight. Among other things, the Court noted that the reasonableness
of a particular use of force must be judged from the perspective of a
reasonable officer on the scene, rather than with the 20-20 vision of
hindsight. The Court further noted that the calculus of
reasonableness must allow for the fact that police officers are often
forced to make split-second judgments--in circumstances that are
tense, uncertain, and rapidly evolving--about the amount of force
that may be necessary in a particular situation.
--------------------
\9 Garner, 471 U.S. 1 (1985).
\10 Graham v. Connor, 490 U.S. 386 (1989).
\11 The Fourth Amendment contains a prohibition against unreasonable
seizures of the person. The Supreme Court has stated that the Fourth
Amendment's proper function is to constrain, not against all
intrusions as such, but against intrusions that are not justified in
the circumstances, or that are made in an improper manner. Schmerber
v. California, 384 U.S. 757, 768 (1966).
\12 Garner, 471 U.S. at 7 (1985). It is well settled that police
officers may use some degree of force in effectuating a lawful
arrest. Graham, 490 U.S. at 396 (1989).
\13 Graham, 490 U.S. 386 (1989).
\14 The District Court considered the following four factors: (1)
the need for the application of force, (2) the relationship between
that need and the amount of force that was used, (3) the extent of
the injury inflicted, and (4) whether the force was applied in a good
faith effort to maintain and restore discipline or maliciously and
sadistically for the very purpose of causing harm.
TREASURY AND JUSTICE HAVE
ADOPTED UNIFORM POLICIES ON THE
USE OF DEADLY FORCE
---------------------------------------------------------- Chapter 2:2
In October 1995, Treasury and Justice adopted use of deadly force
policies to standardize the various policies their component agencies
had adopted over the years. The policies are uniform with the
exception of certain agency mission-specific provisions covering, for
example, Justice's prisoner-related responsibilities. Justice's
Resolution 14, which created the Justice uniform policy, notes that
in view of Supreme Court decisions addressing constitutional
restrictions on the use of deadly force,\15 Justice's investigative
agencies have, over the years, adopted policies to govern their
employees' use of deadly force, albeit in a manner that was not
standardized. Both Justice and Treasury note in their commentaries
that the policies are intended to maintain uniformity among their
various respective departmental components and to achieve uniform
standards and training with respect to the use of deadly force.
While components may develop and conduct their own training on the
use of deadly force, the commentaries state that the new uniform
policies govern the use of deadly force under all circumstances.
The Justice and Treasury uniform policies provide that their
respective officers may use deadly force only when necessary, that
is, when the officer has a reasonable belief that the subject of such
force poses an imminent danger of death or serious physical injury to
the officer or another person. The Treasury and Justice
commentaries, in general, explain that their policies were formulated
to be more restrictive on the law enforcement officer than
constitutional or other legal limits. Following are Treasury's and
Justice's 1995 policies:
Treasury: "Treasury Law Enforcement Officers may use deadly force
only when necessary, that is, when the officer has a reasonable
belief that the subject of such force poses an imminent danger
of death or serious physical injury to the officer or to another
person."\16
Justice: "Law enforcement officers and correctional officers of
the Department of Justice may use deadly force only when
necessary, that is, when the officer has a reasonable belief
that the subject of such force poses an imminent danger of death
or serious physical injury to the officer or to another
person."\17
Accompanying Treasury and Justice commentary provide that "probable
cause," "reason to believe," or a "reasonable belief," for purposes
of their policies, mean facts and circumstances, including reasonable
inferences, known to the officer at the time of the use of deadly
force, that would cause a reasonable officer to conclude that the
point at issue is probably true. The commentaries also recognize
that the reasonableness of a belief or decision must be viewed from
the perspective of the officer on the scene, who may often be forced
to make split-second decisions in circumstances that are tense,
unpredictable, and rapidly evolving.
Justice and Treasury commentaries also state that as used in their
respective policies, "imminent" has a broader meaning than
"immediate" or "instantaneous." The commentaries further state that
the concept of "imminent" should be understood to be elastic, that
is, involving a period of time dependent on the circumstances, rather
than the fixed point of time implicit in the concept of "immediate"
or "instantaneous." Thus, a subject may pose an imminent danger even
if he or she is not at that very moment pointing a weapon at the
officer if, for example, he or she has a weapon within reach or is
running for cover carrying a weapon or running to a place where the
officer has reason to believe a weapon is available.
In addition, the policies provide that if force other than deadly
force appears to be sufficient to accomplish an arrest or otherwise
accomplish the law enforcement purpose, deadly force is not
necessary. The commentaries further provide that if force less than
deadly force could reasonably be expected to accomplish the same end,
such as the arrest of a dangerous fleeing subject, without
unreasonably increasing the danger to the officer or others, then it
must be used.
--------------------
\15 The Treasury and Justice commentaries explain that in developing
the policies, it became apparent that decisional law provides only
limited guidance regarding the use of deadly force.
\16 The Department of the Treasury, Uniform Policy on the Use of
Force, Treasury Order No. 105-12, section (4)(a) (1995).
\17 U.S. Department of Justice, Uniform Policy on the Use of Deadly
Force, section I (1995).
ATF'S 1988 POLICY ON THE USE OF
DEADLY FORCE WAS GENERALLY
CONSISTENT WITH THE 1995
TREASURY POLICY
---------------------------------------------------------- Chapter 2:3
The 1988 ATF use of deadly force policy, which was in effect before
the issuance of the October 1995 Treasury uniform policy, was, with
two distinctions, consistent with the October 1995 Treasury policy.
ATF's 1988 use of deadly force policy stated that
"A firearm may be discharged when the special agent believes
that there is no other means of control and perceives an
imminent threat of death or serious bodily injury to
himself/herself or other innocent persons."\18
The 1988 ATF and 1995 Treasury policies are consistent in that both
policies generally authorize the use of such force only when the law
enforcement officer reasonably believes or perceives that there is an
imminent threat or danger of death or serious physical injury to the
officer or another person. Moreover, both the 1988 ATF and 1995
Treasury policies limit the degree of force authorized to that which
is needed to accomplish the law enforcement purpose. More
specifically, the 1988 ATF policy provided that the degree of force
authorized was limited to that which was necessary to establish
lawful order and control in a timely manner, and the 1995 Treasury
policy provides that if force other than deadly force appears to be
sufficient to accomplish an arrest or otherwise accomplish the law
enforcement purpose, deadly force is not necessary.
One distinction between the policies is that the 1995 Treasury policy
refers to the use of "deadly force" while the 1988 ATF policy
referred more specifically only to the use of a "firearm." With
respect to the 1988 ATF policy, an ATF official noted that until
1995, firearms were the only equipment issued to ATF agents that
could inflict deadly force. A second distinction is that while the
1995 Treasury policy allows for the use of deadly force only when the
law enforcement officer has a "reasonable belief" that there is an
imminent threat of death or serious physical injury, the 1988 ATF
policy allowed for the use of such force when the special agent
"perceives" an imminent threat of death or serious physical injury.
An ATF official noted that, under the 1988 policy, the special
agent's perception of an imminent threat would have been within the
context of additional policy language which provided that "the
authority to bear firearms carries with it an obligation to exercise
discipline, restraint, and good judgement."
--------------------
\18 ATF Order No. 3000.8, ch. A, section (3)(a) (1988).
ATF'S 1988 POLICY ON THE USE OF
DEADLY FORCE WAS GENERALLY
CONSISTENT WITH PRIOR DEA AND
FBI POLICIES
---------------------------------------------------------- Chapter 2:4
The 1988 ATF use of deadly force policy was, with three distinctions,
consistent with DEA and FBI policies in effect prior to the issuance
of the 1995 uniform policies. Following are DEA's and FBI's prior
policies:
DEA: "Agents are not to shoot any person except in self-defense,
when they reasonably believe they or another person are in
danger of death or grievous bodily harm."\19
FBI: "Agents are not to use deadly force against any person except
as necessary in self-defense or the defense of another, when
they have reason to believe they or another are in danger of
death or grievous bodily harm."\20
The prior ATF policy was consistent with prior DEA and FBI policies
in that they generally authorized the use of deadly force only when
the agents reasonably believed or perceived that there was a threat
or danger of death or serious bodily harm to the agent or another
person. One distinction among the three policies was that the ATF
policy alone provided the additional qualifying restriction that such
threat be "imminent." In addition, the aforementioned "firearm/deadly
force" and "reasonably believes/perceives" distinctions also existed
among the prior policies. More specifically, (1) the ATF and DEA
policies referred to the shooting of a "firearm" while the FBI policy
used the term "deadly force" and (2) the ATF policy used the term
"perceives" while the DEA and FBI used the terms "reasonably believe"
and "reason to believe," respectively.
The policies described in this chapter contain additional guidance
regarding specific situations, such as fleeing persons, escaping
prisoners, verbal warnings, warning shots, and shooting at or from
vehicles. This additional information can be found in appendix I.
--------------------
\19 Drug Enforcement Administration, Policy on the Use of Deadly
Force, section 6122.13 (A).
\20 Manual of Investigative Operations and Guidelines, Part II -
Section 12. FBI materials assert that this policy is more
restrictive than the constitutional standard announced in Garner.
CONCLUSIONS
---------------------------------------------------------- Chapter 2:5
As Supreme Court guidance and state rules on the use of deadly force
have evolved over the years, so have the policies of federal
agencies. In addition, the ability of officers to enforce the law,
protect the public, and guard their own safety is a very difficult
task. Officers are often forced to make split-second judgments in
circumstances that have been described as tense, uncertain, and
rapidly evolving. Recently, Treasury and Justice adopted uniform
policies to standardize the policies of their component agencies.
Since 1988, ATF has maintained a policy that was, with three
distinctions as discussed in this chapter, consistent with prior FBI
and DEA policies. ATF's 1988 policy was also, with two distinctions
as discussed in this chapter, consistent with Treasury's current
uniform policy.
ATF, DEA, AND FBI CONVEY DEADLY
FORCE POLICIES TO THEIR AGENTS IN
SIMILAR WAYS
============================================================ Chapter 3
Use of deadly force training provided new ATF agents at FLETC\1
and the ATF National Academy reflected the ATF/Treasury deadly force
policy. This policy is also to be reiterated to new agents during
their probationary period when they receive on-the-job training
(OJT). Furthermore, the types of deadly force training new ATF
agents received at FLETC and the ATF National Academy were consistent
with the types of training provided new FBI and DEA agents.
Moreover, ATF policy requires that ATF agents be reminded of the
deadly force policy at least quarterly throughout their careers.
--------------------
\1 FLETC, which was established in 1970, is a Treasury bureau but has
an interagency Board of Directors. FLETC serves as a law enforcement
training organization for more than 70 federal agencies, as well as
offering training programs for state and local enforcement personnel.
INITIAL TRAINING IS DESIGNED TO
ESTABLISH THE FOUNDATION FOR
NEW ATF AGENTS' UNDERSTANDING
OF USE-OF-FORCE POLICIES
---------------------------------------------------------- Chapter 3:1
The first year with ATF, new agents are to receive about 17 weeks of
formal training--about 8 weeks in general criminal investigator
skills and techniques at FLETC and 9 weeks in ATF-specific training
at the National Academy. In addition, agents also participate in
ATF's OJT for new agents.
TRAINING AT FLETC
-------------------------------------------------------- Chapter 3:1.1
FLETC requires that all students who attend the basic criminal
investigator course be trained in Treasury's/FLETC's Use-of-Force
Policy and Firearms Policy, including deadly force. Because
Treasury's use-of-force and deadly force policies are applicable to
all of its bureaus, the use-of-force policies taught at FLETC are
generally consistent with ATF's policies. Once trained on the
policies and tested on their knowledge of them, students are required
to demonstrate their knowledge and apply the policies where
applicable throughout their training.
All new ATF agents are required to attend the FLETC's Criminal
Investigator Training Program (CITP).\2 This program, which in fiscal
year 1996 is to be expanded to approximately 9 weeks from slightly
over 8 weeks in fiscal year 1995, provides basic training in a broad
range of skills that criminal investigators require. Among the more
than 70 course topics presented are interviewing, case management,
surveillance, undercover operations, crime scene investigation,
fingerprints, constitutional law, court testimony, and search and
seizure. All Treasury bureaus' and many non-Treasury agencies are to
send their new agents to FLETC for basic criminal investigator
training.
CITP training consists of three methods of presentation--
classroom/lecture; laboratory, where students practice skills under
an instructor's guidance; and practical exercises, where students
participate in a related law enforcement scenario and demonstrate law
enforcement skills. Students are to receive over 175 hours of
training in the classroom/lecture, 117 hours of laboratory work, and
39 hours of practical exercises. They are to be graded in both
lecture material and practical exercises. During CITP, students are
to be given 5 written examinations on which they must score at least
70 percent and satisfactorily complete all required tasks during the
practical exercises.
--------------------
\2 Exceptions are made for new agents who have transferred from other
law enforcement agencies and have completed equivalent training.
USE-OF-FORCE TRAINING
------------------------------------------------------ Chapter 3:1.1.1
According to FLETC officials, in about 1990, the FLETC Use-of-Force
Oversight Committee developed a use-of-force continuum model,
consistent with Treasury policies, which has been used to train all
students. Furthermore, the Committee recommended and FLETC agreed to
integrate use-of-force issues, where applicable, into all FLETC
courses. As a result, FLETC provides a 2-hour course on Firearms
Policy during the first week of training that presents, among other
things, the basic concepts in the use of force, including deadly
force, and introduces students to FLETC's Use-of-Force Model
(discussed below). Among the performance objectives of this course
are that the student is to be able to (1) identify basic principles
governing the use of force, (2) identify and apply the appropriate
force, and (3) identify and apply the firearms policy and guidelines
to hypothetical situations and practical exercises that are given
throughout the training program.
THE FLETC USE-OF-FORCE
MODEL
------------------------------------------------------ Chapter 3:1.1.2
The FLETC Use-of-Force Model is composed of five color-coded levels
of force designed to correspond to officers' perceptions of the level
of threat with which they are confronted and describes the
progression or de-escalation of force on the basis of the
demonstrated level of compliance or resistance from a subject.
Students are shown a video illustrating a situation that poses
various levels of threat and emphasizes how threats in real-life
situations can escalate and de-escalate from one level to another.
Table 3.1 shows the levels of threat and the corresponding force
represented in the Use-of-Force Model.
Table 3.1
Levels of Threat and Corresponding Force
Level of threat Corresponding force
---------------------------------- ----------------------------------
(1)Compliant (blue level) Communication, such as verbal
commands
(2)Passive resistance (green Low-level physical tactics, such
level) as grabbing a suspect's arm
(3)Active resistance (yellow Use of come-along holds, pressure
level) points, and chemical sprays
(4)Assaultive with the potential Defensive tactics, such as
for bodily harm (orange level) striking maneuvers with the hands
or a baton
(5)Assaultive with the potential Deadly force
for serious bodily harm or death
(red level)
----------------------------------------------------------------------
Source: FLETC.
In addition to its presentation in training courses, FLETC officials
said that the Use-of-Force Model is prominently displayed in all
classrooms and throughout FLETC hallways. We observed that the
Use-of-Force Model was displayed in the FLETC classrooms we visited
as well as in hallways, firing ranges, and the cafeteria (see fig.
3.1).
Figure 3.1: The FLETC
Use-of-Force Model
(See figure in printed
edition.)
Source: FLETC.
OTHER CITP COURSES THAT
ADDRESS USE OF FORCE AND
DEADLY FORCE
------------------------------------------------------ Chapter 3:1.1.3
Our review of FLETC CITP course materials identified seven other
courses (besides the Firearms Policy course) in which use-of-force
topics were presented in varying amounts. These courses were (1)
Detention and Arrest, (2) Execution of a Search Warrant, (3) Judgment
Pistol Shooting, (4) Situational Response, (5) Introduction to
Physical Techniques, (6) Non-lethal Control Techniques, and (7) The
Removal and Positioning for Transportation of Reluctant Suspects.
These courses contain components whose objectives are to train
students in identifying threats and use-of-force concepts, applying
the proper use of force to the threat, and honing judgmental skills
in applying the various levels of force, including deadly force.
For example, in the Detention and Arrest course (10 hours), terms
used in the use-of-force policy are to be defined, Supreme Court
rulings on deadly force are to be discussed, and the FLETC
Use-of-Force Model is to be presented. One of the objectives of the
course is to train students to recognize the degree of force, which
may include deadly force, that may be used to effect an arrest,
according to Treasury/FLETC Firearms Policy.
In Judgment Pistol Shooting (3 hours), students are to use a weapon
that has been altered to shoot a laser beam. They are confronted by
realistic video scenarios on a giant screen that require them to use
proper judgment in making shoot or not-to-shoot decisions. Students
are required to identify the elements of jeopardy with which they are
confronted and to provide a rational explanation in each instance of
questionable judgment. Failure to properly respond to the video
could result in the video perpetrator's "killing" the agent or
another person. To successfully pass the course, students must score
100 percent in judgment and 70 percent in shooting accuracy.
In Situational Response (2 hours), students are to be given a
scripted scenario in which they are placed into a situation and have
to react to the threat posed by an instructor/role-player. Both
students and role-players are to wear protective clothing and have
weapons that fire paint bullets (commonly referred to as
simunitions), which mark the target they hit. Students have to react
to shoot and not-to-shoot situations and demonstrate the application
of the deadly force policy.
In Non-Lethal Control Techniques (30 hours), students are to be
provided the basic skills required to control and arrest a compliant
and a noncompliant suspect without using deadly force. As part of
the training, students are required to assess the threat and
resistance level of the suspect and respond with the correct level of
force and control as required by the FLETC Use-of-Force Model.
TRAINING AT ATF'S NATIONAL
ACADEMY
-------------------------------------------------------- Chapter 3:1.2
ATF students who successfully complete CITP are also required to
attend New Agent Training at ATF's National Academy, which is located
on the FLETC campus. New Agent Training is 9 weeks and focuses on
the laws, policies, procedures, and specialized investigative
techniques that are specific to ATF and designed to orientate new
agents to their roles as special agents. Our review of course
materials identified three courses that address ATF's use of deadly
force policy:\3 (1) Firearms Usage Policy, (2) Situational Response
for ATF New Agent Training, and (3) Tactical Operations Planning. A
portion of the Firearms Usage Policy course is to be devoted to
reiterating ATF's use-of-force and deadly force policies and the
authority and limitations that agents bear in exercising the use of
force.
In Situational Response for ATF New Agent Training (4 hours),
students are to work in two- or more person teams with simunitions
and participate in 7 realistic scenarios. These scenarios are
designed from real-life experiences of ATF agents to challenge the
students' ability to make proper decisions regarding the use of
force, tactics, the use of cover, and, if appropriate, marksmanship.
In this course, emphasis is placed on resolving the exercises with
the use of surprise, speed, and, if necessary, violence without the
use of deadly force. Among the objectives of the course are to allow
the students to (1) demonstrate the ability to make proper deadly
force decisions, (2) utilize the principles of tactics to gain
control of situations and to avoid shootouts, and (3) demonstrate the
ability to articulate a rational explanation of shooting decisions.
In Tactical Operations Planning (2 hours), students are to compile
the necessary intelligence to develop and execute tactical plans
relating to search warrants, high-risk search warrants, arrests, and
undercover operations. As part of the training in operational
briefings, students are to be taught that the Treasury/ATF Firearms
Policy is required to be presented before the execution of tactical
plans.
--------------------
\3 Use-of-force policies, including deadly force, are contained in
ATF's Firearms Policy, ATF Order 3000.8.
ATF ON-THE-JOB TRAINING
-------------------------------------------------------- Chapter 3:1.3
During the first year with ATF, new agents are supposed to complete
phase 1 of the training program. For phase 1, new agents, in
addition to attending CITP and New Agent Training, are to continue
their training at their post of duty under the guidance of an
experienced agent who has been designated as an OJT instructor. The
purpose of OJT is to acquaint the new agent with applicable policies
and procedures and to expose the trainee to various investigative
activities. During this period, the trainee is expected to display
the appropriate skill, knowledge, and judgment that is needed during
their involvement in situations related to the training objective,
such as during an arrest situation. For example, during OJT on
arrest procedures, students are expected to understand the
limitations on the use of force and the restrictions and limitations
on using firearms when making an arrest. The student is also to
understand and demonstrate proper custody and control of subjects.
TRAINING PROVIDED NEW ATF
AGENTS IS CONSISTENT WITH THE
TYPES OF TRAINING DEA AND FBI
PROVIDED TO THEIR NEW AGENTS
---------------------------------------------------------- Chapter 3:2
The types of training provided to new ATF agents in fiscal year 1995
to introduce them to and train them in the use-of-force and deadly
force policies was consistent with the types of training provided to
DEA and FBI new agents.
Each agency provided new agent trainees with an initial 2-hour
classroom lecture\4 and discussion describing with examples the
agency's use-of-force/deadly force policy within the first week of
the training. (App. II provides FLETC and FBI excerpts from nine
training scenarios in which the use of force was used and the
rationale for whether the force used was appropriate.) Thereafter,
each agency employed a building-block approach that integrates the
use-of-force/deadly force issues into other segments of the training
in which the use of force could be a relevant issue, such as physical
control techniques, arrests, and on search and seizure training.
Each of the agencies employed training techniques, such as practical
exercises using role-playing, simunitions exercises, and firearms
judgment exercises that use realistic video scenarios requiring shoot
or not-to-shoot decisions. Furthermore, each agency trained its new
agents in recognizing the perceived level of threat they face and in
responding to it with an appropriate level of force.
FBI training officials stated that DEA and FBI have similar
use-of-force training programs for new agents. One official noted
that although the exact language of their policies might be somewhat
different (the Treasury and Justice policies applicable to DEA and
FBI were revised in October 1995 and are now generally uniform for
DEA and FBI), DEA and FBI interpret and apply their use-of-force
policies almost identically in training programs. This official said
that he instructs on legal issues for the use-of-force policy course
for FBI's new agents and has taught DEA's new agents as well and that
he had also provided training assistance at FLETC.
--------------------
\4 According to FBI officials, for fiscal year 1996, legal
instruction on the deadly force policy was being expanded to 4 hours
during the first week of new agent training.
AGENTS ARE TO BE KEPT AWARE OF
USE-OF-FORCE POLICIES AT
TACTICAL OPERATIONS BRIEFINGS
AND AT QUARTERLY FIREARMS
QUALIFICATIONS
---------------------------------------------------------- Chapter 3:3
Even after the training of new agents is completed and agents are
provided full special agent responsibilities, they are to be
frequently exposed to the use-of-force and deadly force policies.
ATF policy requires that these policies be reiterated during the
planning process for tactical operations and quarterly during
firearms requalification training.
TACTICAL OPERATIONS PLANS
AND BRIEFINGS
-------------------------------------------------------- Chapter 3:3.1
For over a decade, ATF policy has required that for every search
warrant obtained, a plan is to be developed to execute the warrant
and that all persons participating in the warrant are to be briefed
on the plan. Moreover, the policy requires that every person
participating in the plan, especially those who are not Treasury
enforcement officers, are to be advised of Treasury's policy on the
use of firearms.
A January 27, 1995, ATF policy brief stated that due to the increase
in violence encountered by agents during the execution of search
warrants, arrest warrants, and undercover operations, special agents
planning to execute such operations are required to prepare an
operational plan. The ATF guidance for operational plans stated that
"the use of a well written operational plan, in concert with a
thorough briefing, substantially enhances the safety of the special
agents, public, and suspects." ATF policy requires that all
enforcement officers involved in the operation be provided a copy of
the operational plan. Among the issues to be discussed at the
operational plan briefing is ATF's firearms policy on the use of
deadly force. The plan, which is to be prepared on a standardized
form, contains a block that is to be checked when the policy is
discussed.
ATF agents with whom we spoke at the Washington, Los Angeles, and
Baltimore divisions stated that the firearms policy on use of deadly
force was reiterated before all operations.
QUARTERLY FIREARMS TRAINING
-------------------------------------------------------- Chapter 3:3.2
ATF's firearms policy requires all special agents to qualify in
marksmanship with their primary duty firearm each quarter. Agents
who fail to meet minimum qualification requirements are not to be
certified to use that weapon until they requalify. Because the
requirement applies to the primary duty weapon, each agent,\5 even
those in supervisory positions at headquarters, must attend and
qualify each quarter. Furthermore, the ATF policy requires that as
part of each firearms training session, no less than 1 hour of
instruction is to be provided on ATF firearms/ammunition standards
and procedures and the use-of-force policy. Each Firearms Instructor
Coordinator is required to document the training provided and certify
that the firearms policy instruction was provided.
We observed one quarterly firearms training session at each of the
Washington, Los Angeles, and Baltimore divisions. At each session,
the divisions' Firearms Instructor Coordinator read the use-of-force
and deadly force policies to the agents. At the fourth quarter of
the Washington Division's fiscal year 1995 qualification, the
coordinator elaborated on various points in the policies, such as the
prohibitions against firing at moving vehicles and firing warning
shots. At the Los Angeles Division's first quarter of fiscal year
1996 qualification, the coordinator reviewed the revised October 1995
Treasury use of deadly force policy and confirmed that all agents had
received copies of the new policy. He also gave the agents a quiz
that included questions on the policy, among other topics.
At the Washington, Los Angeles, and Baltimore divisions, we discussed
with the Firearms Instructor Coordinators the training they provided
and also reviewed their records, including quarterly firearms
training documentation, to determine if the use-of-force policies
were discussed at all quarterly firearms training in fiscal year
1995. Our review of ATF agent firearms qualification records for the
Washington Division showed that at each quarterly session the
division's coordinator had certified on the records to reviewing
ATF's firearms policy.
In Los Angeles, the division's former Firearms Instructor Coordinator
said that he reviewed the policy at each quarterly qualification
session during fiscal year 1995 and had every agent sign their
qualification records to attest that they understood the policy.
However, Los Angeles' new coordinator for 1996, said that instead of
having agents' attest that they understood the policy, he would meet
the policy requirement by certifying on the agents' qualification
record that the use-of-force policy had been reviewed.
At the Baltimore Division, the Firearms Instructor Coordinator had
instituted, on his own initiative, a new computerized firearms
qualification record form for each division agent. The computerized
document did not show whether the firearms policy had been discussed.
When asked about whether the policy had been discussed at each
session, the coordinator said that he had discussed it and that,
henceforth, he intended to certify to doing so in his written
records. Furthermore, documentation at each of these offices showed
that the firearms policy had been discussed at qualification sessions
going back to at least the early 1990s.
DEA and FBI officials confirmed that deadly force policies are to be
reiterated at their quarterly firearms qualifications.
--------------------
\5 Exceptions to the qualification requirement can be permitted by
the SAC due to medical or leave reasons or where operational duties
do not permit (e.g., agents who are working in certain undercover
capacities or agents who are required to be in court when the
qualifications take place).
DISSEMINATING THE REVISED
TREASURY USE-OF-FORCE POLICY
---------------------------------------------------------- Chapter 3:4
In October 1995, shortly after Treasury revised its use-of-force
policy to make it uniform among its components and with the Justice
policy, ATF sent the revised policy to all of its field divisions.
In his cover letter transmitting the revised policy, ATF's Associate
Director for Enforcement pointed out that the policy sets forth
uniform standards for the use of deadly force and provides broad
guidelines for all Treasury enforcement agencies. Moreover, he
emphasized that the uniform policy was effective immediately and that
it was the responsibility of each supervisor to ensure that all
special agents under their supervision receive a copy of the policy.
The letter also stipulated that the policy should be addressed at the
next quarterly firearms qualification.
Agents we spoke with in the Washington, Los Angeles, and Baltimore
divisions all confirmed that supervising agents discussed the revised
Treasury use-of-force policy with agents under their supervision.
And, as noted above, we observed the Los Angeles Division's quarterly
firearms qualification in which the Firearms Instructor Coordinator
discussed the new policy.
CONCLUSIONS
---------------------------------------------------------- Chapter 3:5
ATF conveys its deadly force policies to new agents through training.
Use-of-force and deadly force training provided new ATF agents
reflected Treasury/ATF policies. The types of training new ATF
agents receive were consistent with the training provided DEA and FBI
new agents. Furthermore, ATF policy requires that the use-of-force
and deadly force policies be reiterated to agents throughout their
careers during quarterly firearms qualifications and tactical
operations briefings. According to DEA and FBI officials, their
use-of-force policies are also to be reiterated during firearms
qualification.
ATF, DEA, AND FBI OFTEN USE
DYNAMIC ENTRIES AND COMPARABLE
EQUIPMENT TO EXECUTE HIGH-RISK
WARRANTS
============================================================ Chapter 4
Dynamic entry has been a principal tactical procedure ATF has used to
gain entry to premises when executing search and arrest warrants in
high-risk operations. ATF believes dynamic entry is a useful tactic
that can reduce the potential for injury to both agents and suspects
in particular situations. However, on the basis of Treasury's report
on the Waco operation\1 and views of tactical operations experts and
ATF's own personnel, ATF decided in October 1995 that dynamic entry
would only be planned after all other options have been considered
and began to adjust its training accordingly. Similarly, according
to DEA and FBI Washington Division officials, their agencies use
dynamic entry when necessary to execute high-risk warrants and
believe the tactic promotes safety.
ATF, DEA, and FBI use generally comparable weaponry and equipment to
effect dynamic entries. The exceptions are noted in this chapter.
In addition, all three agencies have aircraft that can be used for
intelligence and surveillance operations, such as obtaining aerial
photography, and their specialized teams generally have similar
vehicles, such as sports utility vehicles, from which they can deploy
and in which they store equipment. The clothing and additional gear
worn by agents of all three agencies when executing warrants are
designed to promote agent safety.
--------------------
\1 Report of the Department of the Treasury on the Bureau of Alcohol,
Tobacco, and Firearms Investigation of Vernon Wayne Howell also known
as David Koresh, September 1993.
DYNAMIC ENTRY IS A PRINCIPAL
TACTIC USED BY ATF DURING
HIGH-RISK SEARCH AND ARREST
WARRANT OPERATIONS
---------------------------------------------------------- Chapter 4:1
Dynamic entry is one of several tactical procedures used by ATF to
gain entry to premises to execute search and arrest warrants.
Dynamic entry, which may involve a forced entry, relies on speed and
surprise and often is used during high-risk operations, such as ones
where suspects pose a threat of violence, or where evidence can be
easily destroyed. Both ATF's case agents and SRTs are to be trained
in the dynamic entry technique. However, ATF did not compile any
statistics regarding the number of times various tactics, such as a
dynamic entry, were used during enforcement operations, according to
ATF officials. Due to time constraints, we did not review a sample
of all ATF enforcement operations to determine how often various
tactics were used. However, we discussed the use of dynamic entries
with ATF headquarters and division officials who all agreed that
dynamic entry was the principal tactic used by ATF agents during
high-risk search and arrest warrant operations.
Furthermore, as agreed with the Subcommittee, since SRTs are to be
deployed to conduct ATF's higher risk search and arrest warrants and
have access to all of the equipment available to ATF agents as well
as additional specialized equipment, we primarily focused our review
of ATF's use of dynamic entry and related equipment on operations
involving SRT deployments. Our review of SRT deployments for fiscal
year 1995 found that the dynamic entry technique was used almost half
of the time and was the predominant technique used when an entry to a
premise was required. Moreover, during the period we reviewed, when
the dynamic entry technique was used, no SRT member fired a weapon at
a suspect.
EXECUTING HIGH-RISK SEARCH
AND ARREST WARRANTS WAS THE
PRIMARY PURPOSE OF SRT
DEPLOYMENTS
-------------------------------------------------------- Chapter 4:1.1
ATF has established an SRT in each of its 24 criminal enforcement
field divisions\2 to conduct high-risk operations. These situations
include high-risk arrest, search, and undercover operations. SRT
membership is voluntary and a part-time duty and ranges from 11 to 20
ATF agents depending on the location of the team.
ATF defines high-risk situations, in which activation of the SRT
should be considered, as those in which an increased propensity for
violence exists based on the nature of the subject, the monetary
value of the transaction, or the underlying circumstances of the
situation. Some of the factors to be used to determine whether the
SRT should be deployed include the suspect's criminal history and
propensity for armed violence, the weapons expected at the location,
and the fortification of the buildings involved. SRTs are to be
deployed at the discretion of the SAC of the division to ensure the
safety of ATF agents, other law enforcement officers, and the public
during high-risk operations. As seen in table 4.1, SRTs were most
often deployed to execute search and/or arrest warrants.
Table 4.1
SRT Deployments, FYs 1993-1995
Percen Percen Percen
Reason for deployment Number t Number t Number t
---------------------- ------ ------ ------ ------ ------ ------
Search warrant 150 69 97 66 68 43
Arrest warrant 21 10 13 9 23 15
Both search and arrest 25 12 22 15 38 24
warrants (at same
time)
Other (undercover 22 10 16 11 28 18
operations, etc.)
======================================================================
Total 218 100\a 48 1 00\a 1 57 100\a
1
----------------------------------------------------------------------
\a Does not add to 100 percent due to rounding.
Source: ATF for fiscal years 1993-1994. GAO analysis of SRT After
Action Reports for fiscal year 1995.
--------------------
\2 In fiscal year 1996, ATF plans to restructure the SRTs to more
effectively use its resources from 24 divisional teams to 5 regional
teams consisting of about 40 agents each. Each regional team is
expected to consist of several squads of about seven agents located
geographically throughout its region. The teams are expected to
obtain more multifunctional training, in areas such as surveillance,
as well as continue to receive tactical training (e.g., entry
techniques).
DYNAMIC ENTRIES AND OTHER
TACTICS USED TO PROMOTE
SAFETY
-------------------------------------------------------- Chapter 4:1.2
According to ATF, DEA, and FBI officials as well as training
literature prepared by IACP and local law enforcement agencies,
dynamic entry is a principal tactic available to law enforcement
agencies for use during high-risk enforcement operations. According
to these officials, the primary purpose for using dynamic entry is to
ensure the safety of law enforcement personnel as well as suspects
and other individuals during a high-risk operation. In addition,
dynamic entries may be a preferred tactic when the possibility exists
that evidence may be destroyed.
Furthermore, these officials as well as other law enforcement
officials agree that two characteristics of dynamic entry are speed
and surprise. Various law enforcement articles as well as ATF, DEA,
and FBI officials assert that law enforcement studies show reaction
time to be slower than action time--it takes longer for individuals
to respond to a threat than to make a threat. Thus, through the use
of dynamic entries in certain high-risk situations, law enforcement
agents hope to act so quickly that the suspects do not have time to
respond or, at a minimum, give agents the advantage by forcing
suspects to react to agent actions rather than the reverse. While
dynamic entries may require a forcible entry, such as breaking down a
door, dynamic entries can also be accomplished through open or
unlocked doors.
Dynamic entry is only one of several tactical techniques ATF agents
can use to execute search and arrest warrants or conduct other
enforcement operations. Additional techniques include
"stealth" or "static" entries, which involve slow, methodical entry
and movement in a premise during which each area or room is
cleared of danger before proceeding (e.g., when a suspect opens
the door in response to the knock and announcement, agents may
arrest or detain the suspect and then slowly clear the remainder
of the premise of danger before proceeding with a search);
containment call-outs, which are situations where agents surround a
location and, from covered positions, contact the suspect and
order the person to exit the premise;
ruses, such as when agents create a ploy to draw the person out of
their premise before making an entry or arresting them; and
arresting or detaining the suspect away from the location (e.g.,
vehicle stops) before making an entry or, in the case of an
arrest, to avoid having to make an entry.
Whether an entry is required after using certain tactics, such as
containment call-outs or ruses, would depend on the purpose of the
operation. If a search warrant needs to be executed, even after
arresting or detaining the suspect outside of the premise, an entry
may still need to be made. According to ATF agents and our review of
SRT deployment reports for fiscal year 1995, agents often conducted a
stealth or static entry, rather than a dynamic entry, after detaining
or arresting the primary suspect. According to ATF, DEA, and FBI
officials, flexibility in tactical operations is important. Thus,
agents may use a combination of these tactics or change tactics
during an operation, as necessary. For example, ATF training
materials and officials stressed that even after a decision is made
to use a dynamic entry, a situation can emerge in the middle of an
operation that dictates a change in tactics. Accordingly, during one
SRT deployment in fiscal year 1995, agents planned to conduct a
dynamic entry to execute arrest and search warrants. However, after
the SRT's arrival at the primary suspect's home, the suspect was
located in the backyard and detained before the SRT entered the
premise. The agents then used a stealth entry to execute the search
warrant. (App. III provides detailed examples of actual SRT
operations in which these various tactics were used.)
According to ATF, DEA, and FBI officials, the decision regarding
whether to use dynamic entry or another technique is dictated by the
unique circumstances presented in each operation, with safety as the
primary objective. ATF, DEA, and FBI officials agreed that factors,
such as the suspect's criminal history and violent tendencies, the
location of the premise, and the amount of fortification expected,
are to be considered when determining whether dynamic entry or
another tactic should be used.
In 1994, ATF developed and began requiring an Operational Risk
Assessment form to be completed by agents when planning an
operation.\3 This document is designed to identify critical elements
that can affect high-risk tactical operations. The assessment is
divided into four categories, including the type of enforcement
activity, the suspect's criminal history, the weapons possessed by
the suspect, and the suspect's location. According to ATF agents,
factors, such as the suspect's violent tendencies, the location of
the premise, and the amount of fortification expected, also are
considered. The factors developed in the assessment are assigned
point values and are totaled to determine the amount of risk believed
to be present in the operation. Depending on the amount of risk
present, a decision is made whether to use the SRT to accomplish the
operation. Above a certain point total, deployment of the SRT is
highly recommended. Below that point total, deployment is to be
considered but is optional.
The information gathered for the risk assessment represents critical
intelligence information needed by ATF agents to develop an
operational plan (discussed below). According to one SRT leader, one
specific factor, if present, would not dictate the use of a
particular tactic. Instead, he said agents consider the totality of
the factors in a situation when developing the operational plan. For
example, because a person is expected to be armed and has a history
of violence, does not result in the SRT employing the same tactic in
each case. Other factors also present are considered in conjunction
with what is known about the suspect--possibly leading agents to
chose different tactics in each case. Thus, according to the SRT
leader, agents must consider all factors and determine the most
appropriate tactic for each operation. For example, agents have to
consider whether a prolonged containment call-out could result in
needed evidence being destroyed; whether the surrounding neighborhood
would have to be evacuated; or, if the location is in certain
high-crime neighborhoods, whether a call-out would create a more
dangerous situation (e.g., sniping or a riot).
In January 1995, ATF began requiring agents to complete a standard
written planning document for enforcement operations called an
operational plan. According to ATF documents, ATF instituted this
change due to the increase in violence ATF agents encountered during
the execution of search and arrest warrants and undercover
operations. An operational plan is required before executing any
search or arrest warrants or conducting certain undercover
operations.\4 The plan is to specify the tactics and personnel to be
used during the operation. According to ATF policy, the agent(s)
responsible for the planning portion of the operation prepares the
plan, and the group supervisor or Resident Agent-in-Charge (RAC)
reviews and approves it. According to division officials, in
operations involving the SRT, the SRT team leader and/or other SRT
members are to develop the plan, which is then to be reviewed and
approved by the assistant SAC responsible for supervising the SRT.\5
Copies of the approved plans are to be sent to the SAC of the
division.
Since the decision to use a dynamic entry or other technique requires
consideration of the unique factors present in each situation, ATF
has not had any specific policies regarding the use of dynamic entry.
However, as a result of Treasury's review of the Waco operation and
the views of tactical operations experts and ATF's own personnel, ATF
decided in October 1995 to implement lessons learned from Waco. One
change ATF decided to make was that dynamic entry would only be
planned after all other options had been considered. Given the
choice, it was decided that the first tactical option to be
considered during operational planning would be a ruse--luring the
suspect out. It was believed that luring the suspect out would
reduce the risks to the public and agents and ensure a safe, peaceful
resolution to the situation.
Regardless of whether dynamic entry or another technique is used, ATF
agents are required to follow Treasury's use-of-force policy as
discussed in chapter 2. Also, ATF agents generally are required by
law to knock and announce their identity and purpose before executing
search and arrest warrants. Courts, nevertheless, have permitted
unannounced entries in certain exigent circumstances. Several agents
stated that knocking and announcing also helps to protect the