[Federal Register Volume 60, Number 205 (Tuesday, October 24, 1995)]
[Notices]
[Pages 54569-54571]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-26288]
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DEPARTMENT OF THE TREASURY
[Treasury Order No. 105-12]
Policy on the Use of Force
Dated: October 17, 1995.
1. By virtue of the authority vested in the Secretary of the
Treasury, including the authority vested by 31 U.S.C. Sec. 321(b), I
hereby establish a Treasury policy on the use of force. The policy set
forth herein is intended to set a uniform standard for the use of
deadly force and to provide broad guidelines for the Treasury Law
Enforcement Bureaus. The provisions of this Order apply to all Treasury
Law Enforcement Officers.
2. Definitions.
a. Treasury Law Enforcement Officer, for the purposes of this
Order, includes any Treasury employee who has authority to make arrests
and/or carry, or use, firearms and/or other weapons.
b. Treasury Law Enforcement Bureau, for purposes of this Order,
includes any bureau or office within the Department which employs
Treasury Law Enforcement Officers.
c. Weaponless Control Techniques includes officer presence,
identification, verbal commands and physical control techniques, such
as comealongs, touch pressure points, and empty hand strikes.
d. Intermediate Weapons are weapons other than firearms or lethal
weapons with non-lethal munitions that are approved by each Treasury
Law Enforcement Bureau.
e. Deadly Force is the use of any force that is likely to cause
death or serious physical injury. Deadly force does not include force
that is not likely to cause death or serious physical injury but
unexpectedly results in such death or injury.
3. Use of Force Policy.
a. The primary consideration in the use of force is the timely and
effective application of the appropriate level of force required to
establish and maintain lawful control. A paramount consideration is the
preservation of life and prevention of bodily injury.
b. The respective Treasury Law Enforcement Bureau heads shall set
forth guidelines for weaponless control techniques, intermediate
weapons and firearms or lethal weapons with non-lethal munitions, in
accordance with that bureau's law enforcement mission.
4. Use of Deadly Force Policy.
a. Deadly Force. 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.
b. Fleeing Felons. Deadly force may be used to prevent the escape
of a fleeing subject if there is probable cause to believe:
(1) the subject has committed a felony involving the infliction or
threatened infliction of serious physical injury or death; and
(2) the escape of the subject would pose an imminent danger of
death or serious physical injury to the officer or to another person.
5. Use of Non-Deadly Force. 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.
6. Verbal Warnings. If feasible and if to do so would not increase
the danger to the officer or others, a verbal warning to submit to the
authority of the officer shall be given prior to the use of deadly
force.
7. Warning Shots. Warning shots are not permitted, except as
follows.
a. Warning shots may be used by Treasury Law Enforcement Officers
in exercising the U.S. Secret Service's protective responsibilities,
consistent with policy guidelines promulgated by the Director, U.S.
Secret Service.
b. Warning shots may be used by the U.S. Customs Service on the
open waters, consistent with policy guidelines promulgated by the
Commissioner of Customs.
8. Vehicles.
a. Weapons may not be fired solely to disable moving vehicles,
except as follows: Treasury Law Enforcement Officers, in exercising the
U.S. Secret Service's protective responsibilities, may fire weapons
solely to disable moving vehicles, consistent with policy guidelines
promulgated by the Director, U.S. Secret Service.
b. Weapons may be fired at the driver or other occupant of a moving
motor vehicle only when:
[[Page 54570]]
(1) the officer has a reasonable belief that the subject poses an
imminent danger of death or serious physical injury to the officer or
to another person; and
(2) the public safety benefits of using such force outweigh the
risks to the safety of the officer or other persons.
9. Vicious Animals. Deadly force may be directed against dogs or
other vicious animals when necessary in self-defense or defense of
others.
10. Training and Proficiency Standards. Each Treasury Law
Enforcement Bureau shall:
a. require newly-appointed Treasury Law Enforcement Officers to
satisfactorily complete either Basic Criminal Investigator Training or
Basic Police Training, as administered by the Federal Law Enforcement
Training Center, unless otherwise authorized by the bureau head or his/
her designee, prior to being authorized to carry or use a firearm;
b. be responsible for establishing training and re-training
standards which ensure that Treasury Law Enforcement Officers are
proficient in the use of weaponless control techniques and intermediate
weapons as authorized by that bureau; and
c. consistent with its mission, establish qualification and
firearms familiarization standards and, at least on a semi-annual
basis, require Treasury Law Enforcement Officers to establish and
maintain their proficiency in the use of authorized firearms. The
Secretary or his/her designee may grant an exception to this subsection
upon a showing of good cause.
11. Treasury Law Enforcement Bureaus may supplement this policy
with policy statements or guidance consistent with this policy. It is
the responsibility of the Treasury Law Enforcement Bureaus to review
such policy statements or guidance in a timely and comprehensive
manner.
12. Rights of Third Parties. Nothing in this Order and the attached
commentary is intended to create or does create an enforceable legal
right or private right of action.
Robert E. Rubin,
Secretary of the Treasury.
Attachment
Commentary Regarding the Use of Deadly Force
I. Introduction
The Department of the Treasury (the ``Department'') hereby
establishes a uniform policy with respect to the use of deadly force.
The policy and this commentary provide practical guidance for officers
who must make grave decisions regarding the use of deadly force under
the most trying of circumstances. The policy also is intended to
maintain uniformity among the various Departmental components and to
achieve uniform standards and training with respect to the use of
deadly force. Although each component may still develop and conduct its
own training on deadly force, the policy governs the use of deadly
force under all circumstances.
The policy is the product of discussion among the various law
enforcement agencies whose personnel are called upon to make decisions
regarding the use of deadly force, of review of the current policies
governing the use of force, and of advice of legal counsel from various
Treasury and Justice Department components, including those charged
with law enforcement, defense of civil actions filed against the
government, enforcement of civil rights, and provision of
constitutional advice. In developing the policy, it became apparent
that decisional law provides only limited guidance regarding the use of
deadly force.\1\ In addition, as a matter of principle, the Treasury
Department deliberately did not formulate this policy to authorize
force up to constitutional or other legal limits.\2\
\1\Many issues addressed in the policy and this memorandum have
never been addressed in reported decisions or the law remains
unresolved. Courts would step outside their proper role if they
formulated detailed policies with respect to the procedures
governing deadly force; in contrast, the Department has the
discretion to determine what the policy should be and to provide
guidance to its employees with regard to these solemn issues. Cases
arise in procedural postures--typically civil tort or civil rights
actions, or motions to dismiss or overturn criminal charges or
convictions--in which a wrongful act on the part of the government
may not lead to recovery or sanctions. As a result, the court often
does not reach the question of whether the use of force was
wrongful.
\2\The leading Fourth Amendment cases in this area are Tennessee
v. Garner, 471 U.S. 1 (1985) and Graham v. Connor, 490 U.S. 386
(1989).
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II. Definitions
Deadly force is the use of any force that is likely to cause death
or serious physical injury. When an officer of the Department uses such
force it may only be done consistent with this policy. Force that is
not likely to cause death or serious physical injury, but unexpectedly
results in such harm or death, is not governed by this policy.
Probable cause, reason to believe or a reasonable belief, for
purposes of this policy, means facts and circumstances, including the
reasonable inferences drawn therefrom, 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 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. Reasonableness is not to be viewed from the calm vantage
point of hindsight.
III. Principles on Use of Deadly Force
The Department of the Treasury recognizes and respects the
integrity and paramount value of all human life. Consistent with that
primary value, but beyond the scope of the principles articulated here,
is the Department's full commitment to take all reasonable steps to
prevent the need to use deadly force, as reflected in Departmental
training and procedures. Yet even the best prevention policies are on
occasion insufficient, as when an officer serving a warrant or
conducting surveillance is confronted with a threat to his or her life.
With respect to these situations and in keeping with the value of
protecting all human life, the touchstone of the Department's policy
regarding the use of deadly force is necessity. Use of deadly force
must be objectively reasonable under all the circumstances known to the
officer at the time.
The necessity to use deadly force arises when all other available
means of preventing imminent and grave danger to officers or other
persons have failed or would be likely to fail. Thus, employing deadly
force is permissible when there is no safe alternative to using such
force, and without it the officer or others would face imminent and
grave danger. An officer is not required to place him or herself,
another officer, a suspect, or the public in unreasonable danger of
death or serious physical injury before using deadly force.
Determining whether deadly force is necessary may involve
instantaneous decisions that encompass many factors, such as the
likelihood that the subject will use deadly force on the officer or
others if such force is not used by the officer; the officer's
knowledge that the subject will likely acquiesce in arrest or capture
if the officer uses lesser force or no force at all; the capabilities
of the subject; the subject's access to cover and weapons; the presence
of other persons who may be at risk if force is or is not used; and the
nature and the severity of the subject's criminal conduct or the danger
posed.
Deadly force should never be used upon mere suspicion that a crime,
no matter how serious, was committed, or simply upon the officer's
determination
[[Page 54571]]
that probable cause would support the arrest of the person being
pursued or arrested for the commission of a crime. Deadly force may be
used to prevent the escape of a fleeing subject if there is probable
cause to believe: (1) The subject has committed a felony involving the
infliction or threatened infliction of serious physical injury or
death; and (2) the escape of the subject would pose an imminent danger
of death or serious physical injury to the officer or to another
person.
As used in this policy, ``imminent'' has a broader meaning than
``immediate'' or ``instantaneous.'' 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.
IV. Lesser Means
Intermediate force. If force lesser 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 to others, then it must be used. Deadly force
is not permissible in such circumstances, although the reasonableness
of the officer's understanding at the time deadly force was used shall
be the benchmark for assessing applications of this policy.
Verbal warnings. Before using deadly force, if feasible, officers
will audibly command the subject to submit to their authority. Implicit
in this requirement is the concept that officers will give the subject
an opportunity to submit to such command unless danger is increased
thereby. However, if giving such a command would itself pose a risk of
death or serious bodily harm to the officer or others, it need not be
given.
Warning shots and shooting to disable. Warning shots are not
authorized, except (1) In furtherance of the Secret Service's
protective mission, or (2) by the Customs Service on the open waters.
Other than these two exceptions, discharge of a firearm is usually
considered to be permissible only under the same circumstances when
deadly force may be used--that is, only when necessary to prevent loss
of life or serious physical injury. Warning shots themselves may pose
dangers to the officer or others.
Attempts to shoot to wound or to injure are unrealistic and,
because of high miss rates and poor stopping effectiveness, can prove
dangerous for the officer and others. Therefore, shooting merely to
disable is strongly discouraged.
Motor vehicles and their occupants. Experience has demonstrated
that the use of firearms to disable moving vehicles is either
unsuccessful or results in an uncontrolled risk to the safety of
officers or others. Shooting to disable a moving motor vehicle is
forbidden except in furtherance of the Secret Service's protective
mission.
An officer who has reason to believe that a driver or occupant
poses an imminent danger of death or serious physical injury to the
officer or others may fire at the driver or an occupant only when such
shots are necessary to avoid death or serious physical injury to the
officer or another, and only if the public safety benefits of using
such force reasonably appear to outweigh any risks to the officer or
the public, such as from a crash, ricocheting bullets, or return fire
from the subject or another person in the vehicle.
Except in rare circumstances, the danger permitting the officer to
use deadly force must be by means other than the vehicle.
V. Miscellaneous
Deadly force may be directed against dogs or other vicious animals
when necessary in self-defense or defense of others.
Nothing in this policy and the attached commentary is intended to
create or does create an enforceable legal right or private right of
action.
[FR Doc. 95-26288 Filed 10-23-95; 8:45 am]
BILLING CODE 4810-25-P-M
