Attachment 1- PWS Appendix 12_ICE Firearm and Use of Force Handbook.pdf

Firearms and Use of Force 1

FOR OFFICIAL USE ONLY

ICE Directive 19009. 2: Firearms and Use of Force

Issue Date: August 2, 2021 Superseded: ICE Directive 19009.1, Firearms and Use of Force, November 8, 2019.

Federal Enterprise Architecture Number: 306-112-002b

1. Purpose/Background. This Directive establishes the U.S. Immigration and Customs Enforcement (ICE) Firearms and Use of Force policy. This Directive assigns responsibilities for agency employees and, in conjunction with the ICE Firearms and Use of Force Handbook, establishes procedures and protocols concerning firearms and the use of force, including (but not limited to) training and proficiency, the reporting of use of force incidents, and the proper maintenance, storage, and accounting of firearms and intermediate force weapons.

2. Policy. ICE’s law enforcement mission brings with it the authority to use force when necessary. To this end, it is the policy of ICE that its Authorized Officers only use that force that is objectively reasonable and necessary to carry out their law enforcement duties. The use of excessive force by ICE employees is strictly prohibited. In the performance of their law enforcement duties, Authorized Officers may only carry firearms and intermediate force weapons that have been approved by ICE. The accompanying ICE Firearms and Use of Force Handbook serves as the authoritative guidance to ICE employees regarding firearms and use of force-related issues. As such, ICE employees are expected to be familiar with the contents of this Directive and Handbook and required to take appropriate action to comply with its policies and procedures. Violation of the policies and procedures contained in the Directive or Handbook may be grounds for disciplinary action or other appropriate action. Nothing in this Directive or Handbook shall be construed as interfering with the right that Authorized Officers may have as private citizens to carry a personally owned firearm off-duty for personal use. Authorized Officers must comply with all applicable federal, state, and local laws when exercising this right.

3. Definitions. See the ICE Firearms and Use of Force Handbook for definitions.

4. Responsibilities.

4.1. The Executive Associate Directors for Homeland Security Investigations, Enforcement and Removal Operations, and Management and Administration and the Associate Director for the Office of Professional Responsibility are responsible for:

1) Ensuring all Authorized Officers within their respective programs comply with this Directive and the accompanying Handbook;

U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT

Attachment 1 Appendix 12 ICE Firearm and use of force handbook

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2) Determining which of their employees meet the designation as Authorized Officers;

3) Approving in writing, in consultation with the Assistant Director for the Office of

Firearms and Tactical Programs, the firearms, intermediate force weapons, and related use of force equipment that their respective Authorized Officers are permitted to carry;

4) Suspending, revoking, or denying the authorization to carry firearms and approved intermediate force weapons by their Authorized Officers; and

5) Fulfilling all other obligations and responsibilities assigned to them in this

Directive and the Handbook.

4.2. The Assistant Director for the Office of Firearms and Tactical Programs (OFTP) is responsible for:

1) Overseeing the development and implementation of ICE firearms and use of force policies and procedures;

2) Directing the technical aspects and evaluation of the ICE firearms and use of force program;

3) Leading the development of the use of force training curriculum;

4) Establishing procedures for the selection, training, and certification of Firearms

Instructors, Firearms Coordinators, Defensive Tactics Instructors, Defensive Tactics Coordinators, Field Armorers, and other related trainers;

5) Approving all firearms, defensive tactics, and use of force training obtained through other agency or contract sources;

6) Establishing and overseeing the procedures for requesting, processing, and approving personally owned handguns for use by Authorized Officers in the performance of his or her official duties;

7) Approving firearms, intermediate force weapons, holsters, ammunition, equipment and accessories for use by Authorized Officers;

8) Acquiring all ICE-owned firearms, ammunition, other ordnance and munitions, and intermediate force weapons for ICE;

9) Overseeing the collection and storage of qualification and certification records for

ICE firearms and intermediate force weapons;

10) Maintaining a complete inventory of all ICE firearms and ensuring all sensitive equipment, including firearms, protective equipment and ammunition is tracked;

11) Overseeing the control and accountability of all ICE firearms, ammunition, other ordnance and munitions, intermediate force weapons, and use of force equipment;

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12) Overseeing the development and implementation of ICE tactical doctrine and directing the development and presentation of training for ICE tactical teams;

13) Operating and overseeing all ICE national, field, and academy armories and directing the maintenance, repair, and alteration of all ICE firearms; and

14) Managing the ICE Board of Survey.

4.3. The Board of Survey is responsible for:

1) Meeting quarterly, or as necessary, to review the circumstances that led to the loss, theft, damage, or destruction of an ICE-issued firearm, intermediate force weapon, ammunition, body armor, or other sensitive asset accounted for in Firearms, Armor, and Credentials Tracking System (as stipulated by the Assistant Director of OFTP;

the actions to find or repair the item, the accounting procedures followed and documented; and if the Authorized Officer was negligent in handling the item at issue; and

2) Providing a report of its findings and recommendations.

4.4. The Firearms and Use of Force Incident Review Committee is responsible for:

1) Reviewing all reported use of force incidents and enforcement-related officer safety issues annually, or more frequently, if required; and

2) Examining all reported use of force incidents to determine if tactics, training, and policy were sufficient to address the incidents.

4.5. Responsible Officials are responsible for:

1) All aspects of the ICE firearms and use of force program within their area of responsibility;

2) Ensuring that all Authorized Officers within their area of responsibility comply with this Directive and Handbook;

3) Suspending, revoking, or denying their Authorized Officer’s permission to carry firearms and approved intermediate force weapons;

4) Ensuring that Authorized Officers within their area of responsibility fulfill the training requirements for firearms and intermediate force;

5) Overseeing the inventory control, maintenance, and security of all ICE use of force equipment within their area of responsibility, including ICE firearms, ammunition, and intermediate force weapons. This includes conducting annual inventory in accordance with DHS personal property guidelines;

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6) Designating, in writing, a Firearms Coordinator and a Defensive Tactics Coordinator for their area of responsibility;

7) Assigning, in writing, Firearms Instructors and Defensive Tactic Instructors to serve for a minimum of 5 years, either as full-time or collateral duties, assuming the Authorized Officer remains assigned to that area of responsibility; and

8) Seeking approval from the Assistant Director for OFTP, through their respective

Program Office Head, before obtaining any firearms, defensive tactics, or use of force training through another agency or contract source.

4.6. Defensive Tactics Coordinators are responsible for:

1) Providing instruction to Authorized Officers on defensive tactics and intermediate force weapons through a variety of techniques – including integrated scenario-based training, and classroom and training room exercises;

2) Managing the overall field office defensive tactics, intermediate force weapons, and related use of force training programs within their area of responsibility;

3) Scheduling and directing the Defensive Tactics Instructors;

4) Ensuring that all defensive tactics, intermediate force weapons, and related use of force training are accurately recorded in the system of record;

5) Maintaining sufficient quantities of supplies and equipment to conduct the defensive tactics training program; and

6) Coordinating the scheduling of Authorized Officers to participate in the required defensive tactics, intermediate force weapons, and related use of force training.

4.7. Defensive Tactics Instructors are responsible for:

1) Providing instruction to Authorized Officers on defensive tactics, intermediate force weapons, and other techniques consistent with their certification level;

2) Taking all reasonable steps to ensure the safety and security of all personnel and property involved; and

3) Removing from training any person who refuses to comply with safety instructions or otherwise poses a safety risk.

4.8. Firearms Coordinators are responsible for:

1) Managing the field office firearms and related use of force training, practice, and qualification programs;

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2) Overseeing the shipment, receipt, issuance, and the periodic inventory of firearms, ammunition, other ordnance and munitions, and intermediate force weapons;

3) Overseeing the firearms and related use of force program within their area of responsibility;

4) Scheduling and directing the Firearms Instructors;

5) Ensuring firearms and other use of force equipment, qualification scores, and use of force training are accurately recorded in the system of record;

6) Maintaining sufficient quantities of supplies to conduct the firearms program; and

7) Coordinating the scheduling of Authorized Officers to participate in the required firearms qualifications and all applicable training, including use of force and tactical exercises.

4.9. Firearms Instructors are responsible for:

1) Range operations and range safety;

2) Determining proficiency for all participating personnel, including the scoring of targets for official record; and

3) Removing from training any person who refuses to comply with safety instructions or otherwise poses a safety risk.

4.10. Authorized Officers are responsible for:

1) Reading, understanding, and complying with the policies, procedures, and requirements contained in this Directive and Handbook;

2) Maintaining his or her ICE firearms and other ICE-issued use of force equipment in proper working order through general care and approved levels of maintenance;

3) Safeguarding all firearms and related use of force equipment and protecting them against theft or unauthorized use;

4) Maintaining proficiency in the use of firearms, intermediate force weapons, and other related use of force equipment;

5) Successfully completing all required firearms and use of force training;

6) Seeking approval from the Assistant Director for OFTP, through his or her respective

Responsible Official, before obtaining any firearms, defensive tactics, and use of force training through another agency or contract source;

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7) Ensuring that all of his or her ICE firearms and intermediate force weapons are recorded in the system of record;

8) Reporting use of force incidents in accordance with the requirements set forth in the

Handbook;

9) Annually reviewing ICE use of force reporting procedures; and

10) Meeting all other requirements and standards set forth in this Directive and

Handbook.

5. Procedures/Requirements. See the ICE Firearms and Use of Force Handbook for detailed procedures and requirements.

5.1. General Guidelines.

1) An Authorized Officer may use only that force which is necessary and objectively reasonable in light of facts and circumstances confronting the officer.

2) Use of force is necessary when it is reasonably required to carry out the Authorized

Officer’s law enforcement duties in a given situation, considering the totality of facts and circumstances of a particular situation. See Section 5.2 of this Directive and Chapter 1.B. of the ICE Firearms and Use of Force Handbook for more information.

3) Authorized Officers have a duty to intervene to prevent or stop a perceived use of excessive force by another Authorized Officer when it is safe to do so. Authorized Officers shall report any such incident through the Joint Intake Center or the Office of Professional Responsibility. Failure to intervene and/or report will be considered misconduct and may result in adverse action.

4) An Authorized Officer may have to rapidly intensify or diminish force and employ varying use of force options, depending on the totality of circumstances present and the evolving situation.

5) When feasible, Authorized Officers must employ tactics to de-escalate – i.e. stabilize, slow or reduce the intensity of – a potentially violent situation without using physical force. Such tactics include Officer Presence and Verbal Commands as outlined in the ICE Use of Force Continuum. Recognizing that it is not always possible to obtain a subject’s voluntary compliance, these tactics should be attempted only when feasible and when a delay is not likely to create a greater threat to the safety of the Authorized Officer or others.

6) Based on the totality of the circumstances, different Authorized Officers may have different responses to the same situation, any of which may be both reasonable and necessary. The level of force applied must reflect the totality of circumstances surrounding the situation, including the presence of imminent danger to the Authorized Officer or others.

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7) The supervisor of any ICE employee involved in a use of force incident must advise the employee of the resources available to the employee, including the ICE Employee Assistance Program and the ICE Peer Support Program.

8) When an Authorized Officer uses deadly force, either on or off duty, which results in death or serious bodily injury to a person, the Authorized Officer, following verbal report of the incident, must be immediately placed on administrative leave for 3 consecutive workdays. This period of absence is not for disciplinary purposes. The Office of Human Capital Employee and Labor Relations (OHC E&LR) and the Office of the Principal Legal Advisor (OPLA) must be consulted regarding any extensions of administrative leave.

9) Following any use of force incident and when safe to do so, Authorized Officers must seek medical assistance for any person who appears or claims to be injured.

10) Every use of force incident and any discharge of an ICE firearm by an Authorized

Officer (other than in a training activity where no injury or property damage occurs) must be properly reported, investigated, and reviewed in accordance with the procedures and guidelines set forth in the Chapter 4 of the ICE Firearms and Use of Force Handbook.

11) ICE firearms and authorized intermediate force weapons may only be carried by

Authorized Officers. Authorized Officers, their supervisors, and managers will be provided training and guidance on the issuance, use, safeguarding, and maintenance of ICE firearms, intermediate force weapons, and related use of force equipment.

12) All ICE employees who are not Authorized Officers or who are not otherwise authorized by ICE to transport firearms are prohibited by Federal law from carrying any firearm into federally owned, rented or leased facility.

13) Every Authorized Officer must, at the appropriately designated intervals, demonstrate proficiency with each ICE firearm that he or she is authorized to carry, and maintain proficiency with intermediate force weapons and use of restraining devices (e.g., handcuffs, belly chains, and leg irons).

14) While performing law enforcement duties, Authorized Officers must carry ICE firearms unless operational circumstances preclude the carriage of firearms.

5.2. Objectively Reasonable and the Totality of Circumstances

1) The “reasonableness” of a particular use of force will be reviewed based on the totality of the circumstances confronting the Authorized Officer at the time of the use of force. Reasonableness is an objective standard viewed from the perspective of a reasonable officer, rather than with 20/20 vision of hindsight.

2) The totality of the circumstances are all factors existing in each individual case which are used to determine the reasonableness of an Authorized Officer’s actions. These factors, include, but are not limited to:

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a) The seriousness of the offense at issue;

b) Whether the subject poses an imminent threat to the safety of the Authorized

Officer or others;

c) Whether circumstances are uncertain and rapidly evolving;

d) Whether the subject is actively resisting or attempting to evade arrest by flight;

e) The foreseeable risk of injury to subject(s) involved and others;

f) The level of training, strength, and size of the Authorized Officer;

g) The apparent level of training, strength, size, and age of the subject(s);

h) The weapons involved and/or available;

i) The presence of other officers, subjects, or bystanders; and

j) Environmental conditions.

5.3. Use of Intermediate Force

1) Intermediate force is physical force that is neither likely nor intended to cause death or serious bodily injury.

2) Any use of intermediate force must be both objectively reasonable and necessary in order to carry out the Authorized Officer’s law enforcement duties.

3) Intermediate force weapons may be used in situations where empty-hand techniques are not sufficient to bring a disorderly or violent subject under control, but where deadly force is not deemed justified.

5.4. Use of Deadly Force

1) Deadly force is force that is likely to cause death or serious bodily injury.

2) The DHS Use of Deadly Force Policy, or as amended or superseded, governs the use of deadly force by all DHS law enforcement officers.

3) Authorized Officers may use deadly force only when the officer has a reasonable belief that the subject of such force poses an imminent danger of serious bodily injury or death to the officer or to another person.

4) Deadly force is not authorized solely to prevent the escape of a fleeing suspect.

Deadly force against a fleeing subject is only authorized if there is probable cause to believe that the escape of the suspect would pose an imminent danger of death or serious bodily injury to the officer or another person.

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5) If feasible, and if to do so would not increase the danger to the Authorized Officer or others, a verbal warning to submit to the authority of the Authorized Officer must be given before the use of deadly force.

6) An Authorized Officer is not limited to the use of authorized weapons/devices if the

Authorized Officer or others are faced with imminent threat of death or serious bodily injury and if authorized weapons are not readily accessible or inoperable.

7) The use of firearms to discharge chemical munitions or specially designed breaching munitions against structures does not constitute the use of deadly force unless there is reason to believe that the chemical munitions or specially designed breaching munitions is likely to cause the death of a person or serious bodily injury (e.g., may cause a fire).

8) Deadly force may be used against animals to prevent serious bodily injury to a person or to euthanize a seriously injured or diseased animal.

5.5. ICE Use of Force Continuum

1) The ICE Use of Force Continuum describes and categorizes the application of various levels of force an Authorized Officer may use to gain control over a resistant subject.

2) An Authorized Officer may have to rapidly intensify or diminish force and employ varying use of force options through the Continuum depending on the totality of circumstances present.

3) Outlined below are the 5 levels of the Continuum (with associated non-exhaustive examples of each):

a) The first level (Officer Presence):

i) Professional, courteous demeanor;

ii) Positive attitude; physical condition;

iii) Confident posture and body language; and

iv) Professional attire, or clean, neat attire appropriate to the work being performed.

b) Second level (Verbal Commands):

i) Professional, firm voice;

ii) Instructions that are simple, easy to understand, and repeated as necessary;

and

iii) Only one officer issuing verbal commands at any given time.

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c) Third level (Soft Techniques):

i) Empty-hand techniques with a minimal chance of injury;

ii) Escort position;

iii) “Come-along” holds, to include the use of impact weapons that involve the application of pressure to move noncompliant subjects;

iv) Use of touch pressure points; and

v) Use of chemical agents.

d) Fourth level (Hard Techniques):

i) Techniques that have a greater possibility of injury to subjects;

ii) Strikes with a hand, arm, foot, leg, head, or the whole body;

iii) Throws;

iv) Take-downs;

v) Specified electronic control weapons;

vi) Impact weapons when used for striking; and

vii) Specialty impact weapons.

e) Fifth level (Deadly Force):

i) Discharge of firearms against persons or animals;

ii) Any use of impact weapons to strike the neck or head;

iii) Any strangulation techniques;

iv) Any strikes to the throat; and

v) Use of any edged weapons.

6. Recordkeeping. None.

7. Authorities/References.

7.1. 8 U.S.C. § 1103. Powers and duties of the Secretary, the Under Secretary, and the Attorney General.

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7.2. 8 U.S.C. § 1357. Powers of immigration officers and employees.

7.3. 19 U.S.C. § 1589a. Enforcement authority of customs officers.

7.4. 8 C.F.R. § 1.2. Definitions.

7.5. 8 C.F.R. § 2.1. Authority of the Secretary of Homeland Security.

7.6. 8 C.F.R. Part 287. Field Officers; Powers and Duties.

7.7. 49 C.F.R. § 175.10. Exceptions for passengers, crewmembers, and air operators.

7.8. 49 C.F.R. § 1540.111. Carriage of weapons, explosives, and incendiaries by individuals.

7.9. 49 C.F.R. § 1544.219. Carriage of accessible weapons.

7.10. 49 C.F.R. § 1544.221. Carriage of prisoners under the control of armed law enforcement officers.

7.11. 49 C.F.R. § 1544.223. Transportation of Federal Air Marshals.

7.12. 5 C.F.R. §339, et. seq. Medical Qualification Determinations.

7.13. DHS Policy Statement 044-05, Department Policy on the Use of Force (Sep. 7, 2018), or as amended or superseded.

7.14 DHS Manual 119-03-001-01, Personal Property Asset Management Program Manual (Sept. 26, 2013), or as amended or superseded.

8. Attachments.

8.1 Memorandum from Acting Deputy DHS Secretary Russell Deyo, Required Reporting of

Off-Duty Contact with Law Enforcement by DHS Law Enforcement Personnel and the Suspension and/or Revocation of Authority to Carry a Firearm or other Weapon and Perform Law Enforcement Duties, (Jan. 10, 2017), or as amended or superseded.

8.2 ICE Directive 19001 (former number: 5-1.0), ICE Body Armor Policy (Feb. 4, 2005), or as amended or superseded.

8.3 ICE Directive 3002.1, ICE Badge and Credential Program (Jan. 12, 2010), or as amended or superseded.

8.4 ICE Directive 1044.1, Response to and Evaluation of Critical Incidents Involving

ICE Employees (Aug. 4, 2015), or as amended or superseded.

8.5 ICE Directive 1005.2, Domestic Violence: Lautenberg Amendment Compliance Policy (Nov. 23, 2012), or as amended or superseded.

8.6 ICE Directive 1040.1, ICE Premium Pay Guide (May 7, 2015), or as amended

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8.7 Memorandum from Associate Director for OPR and the Assistant Director for OFTP, New Use of Force, Assaults and Discharges Reporting Process (Oct. 15, 2015), or as amended or superseded.

8.8 ICE Firearms Remedial Training Guidelines (Feb. 2013), or as amended or superseded.

8.9 Customs and Border Protection Handbook 4400-01B, Seized Asset Management and

Enforcement Procedures Handbook (July 2011), or as amended or superseded.

9 Attachments.

9.1 ICE Firearms and Use of Force Handbook

10 No Private Right. This document provides only internal ICE policy guidance, which may be modified, rescinded, or superseded at any time without notice. These guidelines and priorities are not intended to, do not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable at law by any party in any administrative, civil, or criminal matter. Likewise, no limitations are placed by this guidance on the otherwise lawful enforcement or litigative prerogatives of ICE.