A22 446 DM 20 USE OF FORCE 12-20-19 INTERIM.pdf

446 DM 20

Department of the Interior

Departmental Manual

Effective Date: 12/20/2019 INTERIM

Series: Law Enforcement and Security

Part 446: Law Enforcement

Chapter 20: Use of Force

Originating Office: Office of Law Enforcement and Security

20.1 Purpose. This chapter establishes policy for the use of force by law enforcement officers

(LEOs).

20.2 Scope. This policy applies to all LEOs of the Department of the Interior

(Department/DOI).

20.3 Authority. This policy is issued pursuant to 112 DM 17 and 212 DM 17.

20.4 Policy. Sworn LEOs shall act within the boundaries of the United States Constitution, laws and use of force standards set forth herein. Bureaus/offices will create policy and procedures for the use of force by LEOs in the performance of their duties.

20.5 Responsibilities.

A. Assistant Secretary - Policy Management and Budget (PMB) is responsible for management direction and support for all law enforcement programs through Department-wide policies, standards and guidelines for the law enforcement activities of the Department.

B. Deputy Assistant Secretary, Public Safety, Resource Protection and Emergency

Services (DAS-PRE) is the Department’s primary law enforcement policy officer and the principal advisor to the Secretary, Deputy Secretary, and Assistant Secretary - Policy, Management and Budget, on law enforcement policy and operations.

C. Director, Office of Law Enforcement and Security (OLES) has the responsibility for law enforcement policy development and for oversight of the Department’s law enforcement programs as delegated by the DAS-PRE.

D. Bureau Directors are responsible for ensuring that bureau law enforcement programs, including the use of force, are managed in accordance with law, regulation, and

Departmental policy.

E. Bureau Directors of Law Enforcement are responsible for establishing and enforcing policies and procedures that comply with law, regulation, and Departmental policy.

F. Bureau/Office LEOs are responsible for complying with established policy and standards governing the use of force.

20.6 Definitions. For the purpose of this chapter, the terms below are defined as follows:

A. Deadly Force. Any use of force that carries a substantial risk of causing death or serious bodily injury. Deadly force does not include force that is not likely to cause death or serious bodily injury, but unexpectedly results in such death or injury.

B. De-Escalation. The use of communication or other techniques during an encounter to stabilize, slow, or reduce the intensity of a potentially violent situation without using physical force, or with a reduction in force.

C. Law Enforcement Officer (LEO). A DOI law enforcement officer sworn and commissioned to enforce criminal statutes and authorized to carry firearms, execute and serve warrants, search, seize, make arrests, and perform such duties as authorized by law.

D. Less-Lethal Device. An instrument or weapon that is designed or intended to be used in a manner that is not likely to cause death or serious bodily injury. Examples include, but are not limited to, conducted electrical weapons/electronic control weapons, impact weapons, and certain chemical agents. These are also commonly referred to as “intermediate force” or

“less-than-lethal” weapons or devices.

E. Less-Lethal Force. Any use of force that is neither likely nor intended to cause death or serious bodily injury. Also known as “non-deadly,” “intermediate,” or “less-than-lethal” force.

F. Serious Bodily Injury. Any bodily injury that involves a substantial risk of death, unconsciousness, protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ, or mental faculty.

G. Use of Force. The intentional application by law enforcement of any weapon, instrument, device, or physical power in order to control, restrain, or overcome the resistance, or gain compliance or custody, of another.

20.7 Use of Force Standard. The legal standard for all use of force is the objective reasonableness test outlined in Graham v. Connor, 490 U.S. 386 (1989). In determining the appropriateness of a particular use of force, the Department is guided by constitutional law, as interpreted by the U.S. Supreme Court in Graham v. Connor, 490 U.S. 386 and Tennessee v.

Garner, 471 U.S. 1 (1985). The Fourth Amendment supplies a constitutional baseline for permissible use of force by LEOs in the course of their official duties. This policy describes the governing legal framework and articulates additional principles to which the Department will adhere.

A. LEOs shall only use force which is objectively reasonable to make an arrest, an investigatory stop/detention or other seizure; or in the performance of their lawful duties, to protect themselves or others from personal attack, physical resistance, or injury, provided the force is reasonable based upon the immediate facts and circumstances confronting the LEO at the time force is applied.

B. The Fourth Amendment “Reasonableness” Standard.

(1) The Supreme Court has ruled that “all claims 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 and its

‘reasonableness’ standard” (Graham v. Connor, 490 U.S. at 396). This standard is an objective one that, in the context of use of force policy and practice, is often referred to as objective reasonableness.

(2) Because this standard is not capable of precise definition or mechanical application, its proper application requires careful attention to the facts and circumstances of each particular case. The reasonableness of an LEO’s 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”

(Graham v. Connor, 490 U.S. 386, 396-97). In determining whether the force an LEO used to effect a seizure was reasonable, courts allow for the fact that LEOs are often forced to make split-second judgments in circumstances that are tense, uncertain, and rapidly evolving.

(3) Consequently, there may be a range of responses that are reasonable and appropriate under a particular set of circumstances.

(4) Once used, physical force must be discontinued when resistance ceases or when the incident is under control.

20.8 Deadly Force. As with any use of force, an LEO’s use of deadly force must be reasonable in light of the facts and circumstances confronting the LEO at the time force is applied.

A. LEOs may use deadly force only when the LEO has a reasonable belief that the subject of such force poses an imminent threat of death or serious bodily injury to the LEO or to another person.

(1) Fleeing Subjects. Deadly force shall not be used solely to prevent the escape of a fleeing subject. However, deadly force is authorized to prevent the escape of a fleeing subject where the LEO has a reasonable belief that the subject poses a significant threat of death or serious physical harm to the LEO or others and such force is necessary to prevent escape (Tennessee v. Garner, 471 U.S. 1).

(2) Discharge of Firearms. Discharging a firearm against a person constitutes the use of deadly force and shall be done only with the intent of preventing or stopping the threatening behavior that justifies the use of deadly force. The act of establishing a grip, unholstering, or pointing a firearm does not constitute a use of deadly force.

(a) LEOs are prohibited from discharging firearms at the operator of a moving vehicle, vessel, aircraft, or other conveyance unless the use of deadly force against the operator is justified under the standards articulated elsewhere in this policy.

(b) Firearms shall not be discharged solely as a warning or signal, or solely to disable moving vehicles or other conveyances.

20.9 Principles. The Department recognizes the value of all human life and is committed to respecting the rights and dignity of every individual.

A. De-escalation. To ensure that LEOs are proficient in a variety of techniques that could aid them in appropriately resolving an encounter, bureaus/offices shall provide use of force training that includes de-escalation tactics and techniques. When reasonable, LEOs shall seek to employ tactics and techniques that effectively bring an incident under control while promoting the safety of LEOs and the public, and that minimizes the risk of unintended injury or serious property damage.

B. Warnings. When feasible, prior to the application of force, LEOs must attempt to identify themselves and issue a verbal warning to comply with the LEO’s instructions. In determining whether a warning is feasible under the circumstances, an LEO may be guided by a variety of considerations including, but not limited to, whether the resulting delay is likely to:

(1) Increase the danger to the LEO or others, including any victims and/or bystanders;

(2) Result in the destruction of evidence;

(3) Allow for a subject’s escape; or

(4) Result in the commission of a crime.

C. Additional Considerations.

(1) LEOs are permitted to use force that is reasonable in light of the totality of the circumstances. This standard does not require LEOs to meet force with equal or lesser force.

(2) LEOs do not have a duty to retreat to avoid the reasonable use of force, nor are they required to wait for an attack before using reasonable force to stop a threat.

(3) In an exigent situation, for self-defense or the defense of another, LEOs are authorized to use any available object or technique in a manner that is reasonable in light of the circumstances.

D. Duty to Intervene and Report Improper Use of Force.

(1) LEOs have a duty to intervene to prevent or stop a perceived use of excessive force by another LEO—except when doing so would place the LEO in articulable, reasonable fear of death or serious bodily injury.

(2) DOI employees with actual knowledge of a DOI LEO’s improper use of force shall, without unreasonable delay, report the incident to their chain of command, internal affairs, the DOI Office of Inspector General, and/or other reporting mechanism identified by the bureau/office policy or procedure.

(3) Failure to intervene in and/or report such violations is, itself, misconduct that may result in disciplinary action, with potential consequences including removal from federal service, civil liability, and/or criminal prosecution. Bureaus/offices shall ensure that all personnel are aware of these obligations and the appropriate mechanisms by which such reports should be made.

20.10 Less-Lethal Force and Less-Lethal Devices. Bureaus/offices shall develop appropriate policies regarding the use of authorized control tactics or techniques; authorized less-lethal devices; and necessary training and certifications.

A. Bureaus/offices shall ensure that LEOs demonstrate proficiency, in accordance with bureau/office standards, for each less-lethal device that they are authorized and certified to carry. If a certification or valid waiver expires, the LEO is prohibited from carrying that device.

B. Bureaus/offices shall conduct less-lethal use of force training and incorporate decision-making and scenario-based situations in these training programs.

C. LEOs are prohibited from carrying any unauthorized less-lethal device for duty use.

20.11 Animals. Force may be directed against animals, up to and including the discharge of a firearm, when the animal poses an imminent danger to the LEO or others. The dispatching of animals as part of an authorized wildlife resource management plan, or to humanely dispatch an injured animal is not considered use of force.

20.12 Medical Aid. As soon as practicable following a use of force and the end of any perceived public safety threat, LEOs shall obtain appropriate medical assistance for any subject who has visible or apparent injuries, complains of being injured, or requests medical attention.

This may include rendering first aid if properly trained and equipped to do so, requesting emergency medical services, and/or arranging transportation to an appropriate medical facility.

20.13 Training. Bureaus/offices will ensure that all LEOs receive initial use of force training using training standards established by or equivalent to the Federal Law Enforcement Training

Center as determined by the bureau/offices; as well as in-service training and applicable legal or training updates. Bureaus/offices will ensure LEOs meet all applicable firearms, less-lethal weapons, and physical techniques training and proficiency requirements established under policy prior to deploying such weapons and techniques in a use of force. For additional requirements, see 446 DM 15 - Training Standards.

20.14 Reporting Requirements. For Department-wide consistency, bureaus/offices shall meet the following requirements for reporting and tracking use of force incidents.

A. Uses of force shall be documented and investigated pursuant to bureau/office policies and procedures.

B. Bureaus/offices shall establish internal processes to collect and report accurate data on the uses of force. At a minimum, bureaus/offices shall report the following as a “use of force incident” when resulting from a use of force:

(1) A less-lethal device is utilized against a person (except when the device is only displayed);

(2) Serious bodily injury occurs;

(3) Deadly force is used against a person, to include when a firearm is discharged at a person; or

(4) Death occurs.

C. Verbal commands, including verbal threats to use force if an individual does not comply, or even displaying an electronic control weapon, baton or chemical agent should not require a use of force report.

D. Bureaus/offices will ensure use of force incidents are reported within the

Department’s approved Records Management System (RMS) and follow the requirements of 446

DM 17 - Serious Incident Reporting and 446 DM 25 - Boards of Review and Serious Incident

Review Groups.

20.15 Rights of Third Parties. This policy is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity, against the United States, its departments, agencies, or other entities, its officers or employees, or any other person.

20.16 References.

A. U.S. Department of Justice, Policy Statement on the Use of Deadly Force, dated

July 1, 2004.

B. Graham v. Connor, 490 US 386 (1989).

C. Tennessee v. Garner, 471 US 1 (1985).