Section J 4B USMS Policy Directive 14.16 Less than Lethal Devices Effective 12162022.pdf

14.16 LESS-THAN-LETHAL DEVICES

PROPONENT: Training Division (TD)

PURPOSE: This directive establishes policies and required training for United States Marshals Service (USMS) operational employees concerning the use and issuance of USMS-authorized Less-than-Lethal devices.

AUTHORITY: The Director’s authority to supervise the USMS and issue written directives is set forth in 28 U.S.C. § 561(g) and 28 C.F.R. § 0.111. On April 21, 2011, the Attorney General approved the Department of Justice (DOJ) Policy Statement on the Use of Less-than-Lethal Devices, which applies to all DOJ components. On May 20, 2022, the Attorney General published a memorandum outlining updated guidance regarding the DOJ’s use of force and use of less-than-lethal devices.

CANCELLATION: This policy directive supersedes USMS Policy Directive 14.16, Less-than- Lethal Devices, dated September 10, 2021. This policy directive will remain in effect until updated, superseded, or cancelled.

ADMINISTRATION AND LOGISTICS:

1. Records Management: This administrative policy directive document is maintained in accordance with the approved Specific Records Schedule, DAA-0527-2013-0018-0002.

2. This USMS program shall be implemented in accordance with this directive and procedures contained in the corresponding TD Standard Operating Procedure (SOP) 14.16, Less-than-Lethal Devices. Procedures for issuing and using less-than-lethal devices are established by the TD SOP 14.16.

APPROVED BY:

/s/ 12/16/2022

Ronald L. Davis Effective Date

Director

U.S. Marshals Service http://intranet.usms.doj.gov/sites/hqs/TD/Pages/Defensive-Technologies.aspx

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A. Policy Statements: Less-than-lethal devices are to be carried, deployed, and activated only in a manner consistent with current USMS policy and training procedures established by the TD. The use of force by operational personnel, including the use of less-than-lethal devices, must be objectively reasonable to effectively gain control of an incident, while protecting the safety of the operational personnel and others. Operational personnel may use force only when no reasonably effective, safe, and feasible alternative appears to exist. Operational personnel may use only the force that a reasonable officer on the scene would use under the same or similar circumstance.

The use of less-than-lethal devices is authorized in USMS Policy Directive 2.10, Use of Force.

1. Authorized Devices:

a. Only the exact items specified in the TD SOP 14.16, Less-than-Lethal Devices, are authorized for use with the following exceptions:

1) Substitutions to the authorized items may be permitted when authorized in writing by the Deputy Director, with the recommendation of the TD Assistant Director (AD) and the United States Marshal (USM) or AD;

2) No alterations or modifications shall be made to a less-than-lethal device without written approval of the AD, TD; and

3) This policy directive does not apply to items that the Deputy Director approves and authorizes for use by the Special Operations Group. Refer to USMS Policy Directive 17.13, Special Operations Group, for further information.

b. Electronic Restraint Devices (ERD, also known as the BAND-IT), Projectile Stun Guns (PSG), and 40mm Launchers are classified as accountable property and are inventoried, accounted for, and hand-receipted in accordance with USMS Policy Directive 7.1, Management of Personal Property.

2. Training:

a. Operational Employees:

1) All operational employees are required to train and certify every 12 months on all of the following less-than-lethal devices:

a) Oleoresin Capsicum (OC);

b) Expandable baton; and

c) PSG.

2) Initial certification and annual recertification for less-than-lethal devices will be conducted by a USMS-certified Less-than-Lethal Instructor and documented on Form USM-333L, Less-than-Lethal Devices Record/Authorization to Carry. This documentation serves as the authorization to possess, carry, and utilize less-than-lethal devices as assigned.

3) All operational employees must be certified on the ERD by a certified Less-than-Lethal Instructor prior to deployment.

4) All operational employees assigned to deploy or who desire to deploy 40mm impact munitions are required to be trained and certified every 12 months.

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b. Less-than-Lethal Instructors: Less-than-Lethal Instructors will fulfill their annual recertification requirements to carry less-than-lethal devices by one of the following methods:

1) Receive annual retraining by another Less-than-Lethal Instructor; or

2) If no other Less-than-Lethal Instructor is available, the Instructor can self-certify by completing the training requirements for each USMS-authorized less-than-lethal device and completing Form USM-333L, which must be signed by the USM, AD, or designee.

c. Special Deputy United States Marshals (SpDUSM) and Task Force Officers

(TFO):

1) It is permissible for current sworn SpDUSMs and TFOs to carry and use less-than-lethal devices other than those authorized for use by operational personnel if training and certification are conducted in accordance with the parent agency’s policy.

2) The most current parent agency certifications for SpDUSMs and TFOs’ use of a less-than-lethal device should be available for inspection upon request by the Chief Deputy United States Marshal (CDUSM) or Chief Inspector.

3) If a USMS-owned less-than-lethal device is issued to a SpDUSM or TFO, the CDUSM, Chief Inspector, or designee will first confirm with the parent agency of the SpDUSM or TFO that the less-than-lethal device is approved for use by the parent agency.

4) Upon confirmation and prior to issuance, the SpDUSM or TFO will be required to complete an initial certification with the less-than-lethal device by USMS instructors and will be required to recertify annually while in possession of the USMS-owned less-than-lethal device.

5) SpDUSMs and TFOs who are issued USMS-owned less-than-lethal devices will be required to review and comply with USMS enforcement operations’ administrative and operational policies as directed, specifically when utilizing those devices.

d. Court Security Officers (CSO): Training, carriage, and the use of less-than-lethal devices by CSOs must be in accordance with the provisions of the established CSO contract.

e. District Security Officers (DSO) and Aviation Security Officers (ASO): The use of less-than-lethal devices by DSOs and ASOs is governed by USMS Policy Directive 9.37, District/Aviation Security Officer Services.

f. Device-Specific Training: Training on each less-than-lethal device must be in accordance with the TD SOP 14.16.

3. Carriage and Storage of Less-than-Lethal Devices:

a. All certified operational personnel must carry a PSG while performing enforcement operations. Certified personnel may also carry the following less-than-lethal devices while performing enforcement operations:

1) OC; or

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2) Expandable baton.

b. Exceptions to the policy may be approved by the USM, AD, or their designee during covert or undercover operations where carriage of less-than-lethal devices may compromise the safety of operational personnel or the mission.

c. Less-than-lethal devices must be concealed from the general public when and where appropriate. This does not apply when wearing the USMS duty uniform or when operating in a tactical environment. A device will not be inspected or handled in public unless there is an operational purpose.

d. Transporting any less-than-lethal devices on commercial aircraft must be in accordance with Federal Aviation Administration travel regulations. Refer to 49 C.F.R. § 175.10, Exceptions for Passengers, Crewmembers, and Air Operators.

e. Storage and carriage requirements on each of the devices must be in accordance with the TD SOP 14.16.

4. Technical Malfunction: If a less-than-lethal device, associated equipment, or an attachment malfunctions, the malfunction must be reported to the TD per the TD SOP 14.16.

5. Repairs: Repairs of less-than-lethal devices must be completed by the manufacturer or as otherwise described in the manufacturer’s warranty. Contact the Less-than-Lethal Program Manager, TD, for further information.

B. Roles and Responsibilities:

1. TD:

a. Provide necessary basic training for operational employees to use less-than-lethal devices.

b. Provide training for operational employees to become Less-than-Lethal Instructors.

c. Compile data on technical and product failures during USMS deployment.

d. Approve requests for alterations or substitutions.

2. Operational Employees:

a. All new trainees must successfully complete the TD-approved course of instruction for each less-than-lethal device during basic training.

b. Must successfully complete a course of instruction as approved by the AD,TD, and qualify to use all the following less-than-lethal devices every 12 months:

1) OC;

2) Expandable baton; and

3) PSG.

c. Will carry, deploy, and activate less-than-lethal devices; provide medical treatment, and document less-than-lethal device usage in a manner consistent with training procedures, USMS Policy Directive 2.10, and this policy.

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3. Less-than-Lethal Instructors:

a. Successfully complete the USMS Less-than-Lethal Instructor Training.

b. Conduct annual retraining and recertification for each device for which TD has approved the instructor certification.

c. Conduct and document any remedial training necessary to certify operational personnel.

d. Maintain Less-than-Lethal Instructor certification by conducting initial training, annual retraining, and recertification as required by the manufacturer for specific devices, and additional training approved by the AD, TD, or designee.

e. Examine operational employees’ less-than-lethal devices during training.

f. Examine all other less-than-lethal devices in district or division inventory not assigned to individual operational employees during annual training.

g. Conduct quarterly PSG downloads and inspections and complete Form USM- 336, Quarterly PSG Inspection Record, for each operational employee.

h. Notify district or division management of defective or damaged equipment as soon as possible.

4. District, Division Management, or Staff Offices with Operational Personnel:

a. Designate at least one operational employee to be a Less-than-Lethal Instructor.

b. Ensure that the employee designated as a Less-than-Lethal Instructor is certified to conduct less-than-lethal training.

c. Ensure that all operational employees successfully complete initial and annual retraining to maintain current certification for each less-than-lethal device that they are required or approved to carry. District and division management may direct personnel to be trained and certified in additional specialty less-than-lethal devices approved by the TD.

d. Ensure operational employees download data and document less-than-lethal device usage in a manner consistent with the TD SOP 14.16 and USMS Policy Directive 2.10.

e. Ensure that annual recertification is recorded on Form USM-333L.

f. Ensure that all training records are maintained per the DOJ Record Retention Schedule: DAA-0060-2017-0009-0001.

g. Ensure that less-than-lethal electronic control devices, such as the PSG, ERD, and 40mm Launchers, which are classified as accountable property, are inventoried in accordance with USMS Policy Directive 7.1.

h. Ensure that all PSGs are downloaded and inspected quarterly and that Form USM-336 is completed.

i. Ensure that all less-than-lethal devices are inspected during training.

j. Remove defective or damaged equipment from service.

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k. Replace operational employees’ defective less-than-lethal devices out of work plan funds. Only replace devices authorized by the TD as outlined in the TD

SOP 14.16.

l. Review and submit approved requests for alterations or substitutions to the TD for final approval.

5. District/Division Management with TFOs: Ensure that state and local officers participating in joint task force operations are aware of and adhere to this policy when carrying or being assigned USMS-owned and issued less-than-lethal devices.

C. Definitions:

1. Electronic Restraint Device: A device that emits an electrical charge to subdue a non-compliant subject. The package is attached to the subject and is activated by a remote-control device that for 8 seconds delivers 50,000 volts, which may disorient, temporarily immobilize, and stun a subject without causing permanent injury. An ERD is also known as the BAND-IT.

2. Enforcement Operation: Any activity, with the exception of exigent circumstances, which may result in the arrest or attempted arrest of an individual.

3. Expandable Baton: A three-stage steel baton with hardened shafts that extend and lock by friction or a cam system. It possesses a reinforced textured hard rubber or metal tip with a firm foam or rubber grip handle. The baton is designed to disrupt a subject’s noncompliance by means of striking or penetrating large muscle groups, pressure points, or close quarters contact areas sufficient to cause pain, immobilization, distraction, or displacement of balance.

4. Less-than-Lethal Device: A device that is intended to be used to effectively control a subject but is not expected to cause serious injury or death.

5. Less-than-Lethal Instructor: A USMS operational employee trained and certified by the TD as an instructor in the USMS-approved less-than-lethal devices.

6. Oleoresin Capsicum: An inflammatory agent that occurs naturally in various plants.

When transferred to a canister by a manufacturing process and used as a less-than-lethal device, it may cause respiratory inflammation consisting of coughing, shortness of breath, and a gagging sensation, severe twitching to involuntary closing of the eyes, and a slight to acute burning sensation and redness of the skin.

7. Projectile Stun Gun: A weapon designed to disrupt a subject’s sensory and motor nervous system by means of deploying battery-powered electrical energy through projectiles sufficient to cause uncontrolled muscle contractions and override a subject’s voluntary motor responses creating temporary neuromuscular incapacitation.

8. Subject: A person who is in contact with operational employees while in performance of their duties (e.g., prisoners, fugitives, protestors, suspects, defendants, plaintiffs, and the general public).

9. USMS Operational Employees: Employees assigned to the 1811, 0082, 1801, or 1802 job series, or who serve as a USM.

10. 40mm Launcher: A rifled bore break-open device, with a collapsing and/or folding stock, designed to fire 40mm point control or multi-effect impact munitions which are designed to momentarily incapacitate violent and non-compliant subjects.

D. References:

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1. 28 U.S.C. § 561(g), United States Marshals Service

2. 28 C.F.R. § 0.111, General Functions

3. 49 C.F.R. § 175.10, Exceptions for Passengers, Crewmembers, and Air Operators

4. DOJ Record Retention Schedule, DAA-0060-2017-0009-0001

5. DOJ Policy Memorandum, Department’s Updated Use-of-Force Policy, dated May 20,

6. DOJ Policy Statement on the Use of Less-than-Lethal Devices

7. USMS Policy Directive 7.1, Management of Personal Property

8. USMS Policy Directive 9.37, District/Aviation Security Officer Services

9. USMS Policy Directive 2.10, Use of Force

10. USMS Policy Directive 17.13, Special Operations Group

11. Form USM-333L, Less-than-Lethal Devices Record/Authorization to Carry

12. Form USM-336, Quarterly PSG Inspection Record

13. TD SOP 14.16, Less-than-Lethal Devices https://www.govinfo.gov/content/pkg/USCODE-2018-title28/pdf/USCODE-2018-title28-partII-chap37-sec561.pdf https://www.govinfo.gov/content/pkg/CFR-2001-title28-vol1/pdf/CFR-2001-title28-vol1-sec0-111a.pdf https://www.govinfo.gov/content/pkg/CFR-2011-title49-vol2/pdf/CFR-2011-title49-vol2-sec175-10.pdf http://intranet.usms.doj.gov/sites/hqs/MSD/CFC%20Picture%20Library/RM%20Document%20Library%20Intranet/Forms/AllItems/DAA-0060-2017-0009.pdf https://www.justice.gov/ag/page/file/1507826/download https://dojnet.doj.gov/directives/docs/less-than-lethal-force.pdf https://intranet.usms.doj.gov/sites/Policies/Library%20POLICY%20ARCHIVES/07.01.00-00_PP_P00.pdf https://intranet.usms.doj.gov/sites/Policies/Library%20POLICY%20ARCHIVES/09.37.00-00_PP_P00.pdf https://intranet.usms.doj.gov/sites/Policies/Library%20POLICY%20ARCHIVES/02.10.00-00_PP_P00.pdf https://intranet.usms.doj.gov/sites/Policies/Library%20POLICY%20ARCHIVES/17.13.00-00_PP_P00.pdf http://intranet.usms.doj.gov/sites/forms/Forms/usm333L.pdf http://intranet.usms.doj.gov/sites/forms/Forms/usm336.pdf https://intranet.usms.doj.gov/sites/Policies/Library%20POLICY%20ARCHIVES/14.16.00-00_SP_P00.pdf