[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