FBI training on the new federal deadly force policy.

Making appropriate decisions regarding the use of deadly force is the most critical challenge confronting law enforcement officers. Ensuring that officers possess the requisite knowledge and skills to make and implement those decisions is the challenge for law enforcement administrators and trainers. These challenges can be met only through training.

Training in the use of deadly force should encompass the knowledge and skills necessary to make appropriate decisions and should reflect the commitment of management to share the burden of responsibility for making those decisions. Foresight requires more courage than hindsight.

Realistic training does not state general platitudes and then leave officers to figure the rest out for themselves. It provides clear principles to govern the application of deadly force and then illustrates appropriate application through practical examples.

Inadequate training can cause officers to use deadly force when it is not appropriate. Conversely, it may cause uncertainty and hesitation on the part of officers in circumstances that increase the danger to themselves and to the public.

This article describes selected portions of FBI training on the new federal deadly force policy. It illustrates a training process that is effective for any law enforcement training program concerning the use of deadly force.

NEW POLICY

On October 17, 1995, Attorney General Janet Reno approved a deadly force policy to govern all law enforcement agencies within the U.S. Department of Justice. Since then, this same policy has been adopted by the Department of the Treasury, thus creating for the first time a uniform deadly force policy for federal law enforcement agencies.

The common threads that run throughout the policy are the establishment of an "imminent danger" standard and the reaffirmation of the basic principle that even when an imminent danger exists, deadly force should not be used if to do so would create an unreasonable risk to innocent third parties. The essence of the new policy is found in the first paragraph, captioned "Permissible Uses":

Law enforcement officers...of the Department of Justice 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. (Emphasis added)

A commentary accompanying the policy explains key words and concepts and provides some guidance for interpretation. For example, it emphasizes that "as a matter of principle, the Department of Justice deliberately did not formulate this policy to authorize force up to the constitutional or other legal limits."

The difference between the policy and the law is most significant with respect to fleeing felons. In Tennessee v. Garner, 471 U.S. 1 (1985), the Supreme Court held that the fourth amendment to the U.S. Constitution permits the use of deadly force when necessary to prevent the escape of a felony suspect when there is probable cause to believe the suspect has committed a crime "involving the infliction or threatened infliction of serious physical harm." The policy requires the additional factor of probable cause to believe that the suspect's escape would pose an imminent danger to the officers or others.

The commentary explains that "imminent... should be understood to be elastic...involving a period of time dependent on the circumstances, rather than the fixed point of time implicit in the concept of 'immediate' or 'instantaneous.'" Furthermore, the reasonableness of an officer's decision to use deadly force "must be viewed from the perspective of the officer on the scene...[and] not...from the calm vantage point of hindsight."

The policy does not purport to answer all of the questions that may confront law enforcement officers on the scene, nor does it attempt to eliminate an officer's ability - and responsibility - to exercise judgment. Rather, it provides a framework of general principles to guide those judgments - a framework within which each agency is permitted to "develop and conduct its own training on deadly force...."

BASIC TRAINING PRINCIPLES

The underlying premise of the FBI's training doctrine is that the requisite knowledge for assessing threats - like the requisite skills for countering them - must be learned. Objective principles can and must be instilled in trainees to enable them to make timely and reasonable judgments regarding the need to use deadly force.

It is equally important that those who have the responsibility for reviewing an agent's judgment have the same objective frame of reference. It is not sufficient for management to simply expound the policy and then urge the agents to do their best. It is important that management commit itself to policy interpretation and application. This not only gives the agents instruction but it also instills confidence that management has the courage to confront the same issues that the agents must confront on the streets.

To accomplish these purposes, the FBI uses a multistage approach for instructing its agents on the use of deadly force. The first stage is classroom instruction on the text of the policy, accompanied by an instructional outline that explains the criteria used to determine the manner in which the policy is to be interpreted. A second stage, also done in the classroom, uses written scenarios to illustrate how the policy applies to various situations.

Trainees are given scenarios and challenged to determine the propriety of using deadly force by using the established criteria. After thorough discussion of their responses, they are given a model response to illustrate the appropriate application of the policy.

The third stage incorporates practical application of the principles through use of interactive video simulation and practical exercises using role players and blank or paint firing weapons. The initial training given at the FBI Academy is reinforced during an agent's career through mandated annual training in the FBI field offices.

Portions of the instructional outline are presented to show how the FBI teaches the new deadly force policy, followed by scenarios used to illustrate how to apply the policy's criteria. The policy text, where noted, is tailored to the FBI and is relevant only to the FBI's mission. Otherwise, apart from stylistic changes, e.g., using "agent" instead of "officer," the substance of the policy is the same. Editorial comments have been placed within brackets to provide further explanation.

INSTRUCTIONAL OUTLINE

I. INTRODUCTION

This outline provides guidance to FBI agents in the use of deadly force. The following general principles are to govern application of deadly force:

A. The policy is not to be construed to require agents to assume unreasonable risks. In assessing the need to use deadly force, the paramount consideration always should be the safety of the agents and the public.

B. The reasonableness of an agent's decision to use deadly force under this policy must be viewed from the perspective of the agent on the scene who may often be forced to make split-second decisions in circumstances that are tense, uncertain, and rapidly evolving and without the advantage of 20/20 hindsight.

II. POLICY TEXT

[NOTE: This portion of the policy text is tailored to the FBI and cites only those portions relevant to the FBI's mission.]

A. Defense of Life: Agents may use deadly force only when necessary, that is, when the agents have probable cause to believe that the subject of such force poses an imminent danger of death or serious physical injury to the agents or other persons.

B. Fleeing Subject: 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 subject's escape would pose an imminent danger of death or serious physical injury to the agents or other persons.

C. Verbal Warnings: If feasible, and if to do so would not increase the danger to the agent or others, a verbal warning to submit to the authority of the agent shall be given prior to the use of deadly force.

D. Warning Shots: No warning shots are to be fired by agents.

E. Vehicles: Weapons may not be fired solely to disable moving vehicles. Weapons may be fired at the driver or other occupant of a moving motor vehicle only when the agents have probable cause to believe that the subject poses an imminent danger of death or serious physical injury to the agents or others, and the use of deadly force does not create a danger to the public that outweighs the likely benefits of its use.

III. DEFINITIONS

A. Deadly Force: Force that is likely to cause death or serious physical injury.

B. Necessity: In evaluating the necessity to use deadly force, two factors are relevant: 1) The presence of an imminent danger to the agents or others, and 2) the absence of safe alternatives to the use of deadly force. Deadly force is never permitted under this policy when the sole purpose is to prevent the escape of a suspect.

[The policy requires that either the suspect, or his escape, pose an imminent danger before deadly force is permitted.]

1. Imminent Danger: "Imminent" does not mean "immediate" or "instantaneous," but that an action is pending. Thus, a subject may pose an imminent danger even if he is not at that very moment pointing a weapon at the agent. For example, imminent danger may exist if agents have probable cause to believe any of the following:

a. The subject possesses a weapon, or is attempting to gain access to a weapon, under circumstances indicating an intention to use it against the agents or others; or,

b. The subject is armed and running to gain the tactical advantage of cover; or,

c. A subject with the capability of inflicting death or serious physical injury, or otherwise incapacitating agents without a deadly weapon, is demonstrating an intention to do SO; or,

d. The subject is attempting to escape from the vicinity of a violent confrontation in which he inflicted or attempted the infliction of death or serious physical injury.

2. Safe Alternative: Absent a safe alternative, agents are not required to use or consider alternatives that increase danger to themselves or to others. If a safe alternative to the use of deadly force is likely to achieve the purpose of averting an imminent danger, deadly force is not necessary. Among the factors affecting the ability of agents to safely seize a suspect, the following are relevant:

a. Response to commands: Verbal warnings prior to using deadly force are required when feasible, i.e., when to do so would not significantly increase the danger to agents or others. While compliance with agents' commands may make the use of deadly force unnecessary, ignoring such commands may present agents with no safe option.

b. Availability of cover: Availability of cover provides a tactical advantage. An armed suspect attempting to gain a position of cover may necessitate the use of deadly force; conversely, an agent in a position of cover may gain additional time to assess the need to use deadly force without incurring significant additional risks.

c. Time constraints: The inherent disadvantages posed by the issue of action/reaction, coupled with the lack of a reliable means of causing an instantaneous halt to a threatening action, impose significant constraints on the time-frame in which agents must assess the nature and imminence of a threat.

[A fundamental understanding of such concepts as "action/reaction" and "wound ballistics" is essential to realistic threat assessment.]

IV. APPLICATION OF DEADLY FORCE

A. When the decision is made to use deadly force, agents may continue its application until the subject surrenders or no longer poses an imminent danger.

B. When deadly force is permitted under this policy, attempts to shoot to cause minor injury are unrealistic and can prove dangerous to agents and others because they are unlikely to achieve the intended purpose of bringing an imminent danger to a timely halt.

C. Even when deadly force is permitted, agents should assess whether its use creates a danger to third parties that outweighs the likely benefits of its use.

ILLUSTRATIVE SCENARIOS

Use of Force Permitted

Set forth are selected scenarios to illustrate each of the four relevant factors used to assess the necessity of deadly force. Ideally, an objective analysis should lead to comparable responses.

Relevant Factor: The subject possesses a weapon, or is attempting to gain access to a weapon, under circumstances indicating an intention to use it against the agents or others.

Scenario: Agents approach a residence during the day to arrest a bank robbery subject who threatened bank personnel with a handgun during the robbery. Before the agents are able to fully establish a perimeter, a person matching the description of the subject bursts from the back door of the residence with what appears to be a pistol in his hand and runs through the backyard toward adjacent homes.

Agents shout, "FBI! Stop! Or we'll shoot!" Ignoring the commands, the subject continues to run. An agent fires a shot from a distance of about 15 yards, striking the subject in the back.

Discussion: The use of deadly force is permitted.

Necessity: The agent has probable cause to believe that the subject, who has armed himself with a firearm, has done so to resist arrest and poses an imminent danger to the agents in the immediate vicinity. The subject ignored commands to stop. There is no safe alternative to the use of deadly force to avert the danger.

As long as the fleeing, armed subject remains within gunshot range of the agents, he has the ability to turn and fire on them before they can effectively respond by taking cover or returning fire. Attempting to pursue an armed subject increases that danger. In addition, the subject poses an imminent danger to those agents who are trying to form the perimeter and whom the subject is likely to encounter as he continues his flight.

In deciding whether to use deadly force in this scenario, agents also should consider that the suspect is fleeing in a neighborhood setting. Accordingly, agents should assess whether its use creates a danger to third parties that outweighs the likely benefits.

Relevant Factor: The subject is armed and running to gain the tactical advantage of cover.

Scenario: Two FBI agents possess a warrant to arrest a subject for armed robbery of a bank the previous day. During the robbery, the subject shot and wounded a bank guard. As the agents drive into the neighborhood where they believe the subject previously resided, they observe a man matching the subject's description walking down the sidewalk. From a distance of about 25 yards, the agents see what appears to be a handgun tucked into the waistband of the subject's trousers.

Getting out of their car, the agents walk toward the subject. When they are about 10 yards from the subject, one of the agents shouts, "FBI! Put up your hands! We have a warrant for your arrest!" Following a quick glance in the direction of the agents, the subject turns and runs away from the agents and toward a nearby house. The agent again shouts, "FBI! Stop or I'll shoot!" When the subject continues to run, the agent fires one shot.

Discussion: The use of deadly force is permitted.

Necessity: The agents have probable cause to believe the subject has committed a felony involving the infliction or threatened infliction of death or serious physical injury and probable cause to believe the subject is presently armed with a firearm. If the subject reaches the house under these circumstances, he will have the tactical advantage of cover, whereas the agents are in an exposed position. In addition, the subject poses a danger to other persons in the house whom he may take as hostages.

The nature and imminence of the danger permits the use of deadly force under these circumstances. Because permitting the subject to enter the house would place the agents and others in imminent danger, and because there is no safe alternative available to forestall that action, deadly force is permitted.

Relevant Factor: An unarmed subject with the capability of inflicting death/serious physical injury, or otherwise incapacitating agents, is demonstrating intention to do so.

Scenario: Two agents have a warrant to arrest a man for a bank burglary that occurred several weeks previously. Unable to locate the subject at his apartment, they go to a nearby garage where he works as an auto mechanic. The agents approach the subject, identify themselves, and tell him that he is under arrest. The subject glares at the agents for a moment and then suddenly hurls a wrench at them, which they manage to dodge. The subject then removes a small canister from a nearby bench and shouts: "If you guys don't get out of my way, I'll mace you!"

The agents hold their positions about 30 feet from the subject, draw their handguns, and order the subject to drop the canister. The subject does not comply with the command, but continues to point the canister in the agents' direction as he moves toward them. When the subject is within about 20 feet of the agents, they both fire, striking the subject in the chest.

Discussion: The use of deadly force is permitted.

Necessity: Although there is no probable cause to believe the subject previously committed a crime involving the infliction or threatened infliction of death or serious physical injury, he is posing an imminent danger to the agents by his violent resistance to arrest with what appears to be a chemical agent.

A noncompliant subject who has the capability of rendering agents incapable of defending themselves also has the capacity to gain access to the agents' weapons and to kill or seriously injure them. The agents commanded the subject to drop the canister and surrender; he refused to do so and increased the danger to the agents by advancing toward them in a threatening manner.

There is no safe alternative to the use of deadly force to avert the danger. The agents are not required to retreat from their duty, or to permit the subject to get close enough to use what is believed to be an incapacitant against them.

Relevant Factor: Subject attempts to escape from the vicinity of a violent confrontation in which he inflicted or attempted to inflict death or serious injury.

Scenario: FBI agents are looking for a fugitive who jumped bail rather than face trial for cocaine distribution. Two agents go to the residence of the fugitive's ex-wife, hoping to interview the woman about her former spouse's present address. As the agents approach the house from the street, the fugitive emerges from the front door, sees the agents, and draws a handgun from the waistband of his trousers. The agents take cover behind cars parked at the curb, draw their weapons, and shout, "FBI! Put up your hands!" The fugitive opens fire and begins to run across the front yard to get away.

As the fugitive turns the corner of the house, he trips over a bicycle and is seen losing his gun. Regaining his feet, he runs along a driveway toward the backyard and begins to climb a six-foot chainlink fence. One of the agents yells for him to stop. When the fugitive ignores the command and continues to climb, the agent fires a shot striking the fugitive.

Discussion: The use of deadly force is permitted.

Necessity: The subject has demonstrated his dangerousness by firing on the agents. Even though the fugitive was seen to have lost his gun, the agents must consider the possibility that the suspect possesses another weapon. Moreover, his efforts to escape from the vicinity of a violent confrontation in which he inflicted or attempted infliction of death or serious physical injury supports probable cause to believe that he poses an imminent danger to the agents or others.

There is no safe alternative to the use of deadly force to prevent escape. Agents are not required to pursue a demonstrably dangerous subject who has just attempted to kill them. The subject ignored commands to surrender.

It is neither safe nor reasonable to require agents to attempt to physically overpower a person who has demonstrated that he will use violence to avoid capture. To do so exposes the agents' firearms to the subject and the agents to unnecessary risk. It is equally unreasonable to permit the subject to gain the tactical advantage of cover or to depart the scene and rearm himself in preparation for his next violent encounter with law enforcement officers.

Use of Force Not Permitted

In addition to scenarios depicting the necessity for using deadly force, the FBI's training package includes scenarios where either the absence of an imminent danger or the availability of a safe alternative obviates the necessity for its use. There also are scenarios where the level of danger to innocent third parties makes its use impracticable.

Relevant Factor: Suspect poses no imminent danger.

Scenario: Two agents possess an arrest warrant for a man who is wanted for bank fraud and embezzlement. As they approach his residence to make the arrest, they observe a man matching the subject's description standing on the front porch. When the agents are within about 20 yards of the residence, the man looks in their direction and immediately jumps from the porch and runs down the sidewalk away from them.

One of the agents shouts, "FBI! Stop!" When the man ignores that command, the agent shouts a second time, "FBI! Stop or I'll shoot!" The suspect continues running, increasing the distance between himself and the pursuing agents. Realizing that they are not going to be able to overtake the fleeing suspect, the agent fires a shot, striking the suspect in the back.

Discussion: The use of deadly force violates FBI policy.

Necessity: There can be no necessity to use deadly force if there is no imminent danger. There is no probable cause to believe that the suspect poses an imminent danger to the agents or to others.

His offense did not involve the infliction or threatened infliction of death or serious injury, nor is there probable cause to believe that the escape of the subject poses an imminent danger to the agents or others. If the agents are unable to seize the suspect without resorting to deadly force, the suspect will avoid arrest for the time being.

Relevant Factor: Another safe alternative is available.

Scenario: FBI agents possess a warrant to arrest a subject for armed robbery of a bank the previous day. During the robbery, the subject shot and wounded a bank guard. A team of several agents sets up a perimeter around the house where the subject is believed to be staying. The arrest plan calls for an agent to announce their presence and purpose on a bull horn and to demand the subject's surrender.

Before the announcement can be made, the agents see a man matching the subject's description walking from the front door of the house toward a mailbox near the street. From a distance of about 25 yards, the agents see what appears to be a handgun tucked into the waistband of the subject's trousers.

An agent announces on the bull horn, "FBI! We have a warrant for your arrest! Put your hands up!" The subject turns quickly and runs back toward the front door of the house. One of the agents fires two shots, striking the subject in the back.

Discussion: This use of deadly force violates FBI policy.

Necessity: The agents have probable cause to believe the subject has committed a violent crime and is presently armed with a firearm. In addition, he is noncompliant. These factors satisfy the imminent danger element of this policy. However, based on these specific facts, there appears to be a safe alternative to the immediate use of deadly force.

The agents are in positions of cover, not just concealment, thereby lessening the immediacy of the risks to themselves. Given these facts, if the subject gets back into the house, the risks to the agents appear to be no greater than if their original arrest plan, i.e., containment and negotiation, had been implemented. [This scenario suggests that a safe alternative to the use of deadly force exists, not that the suspect poses no danger to the agents. Different facts, e.g., lack of cover for the agents or the presence of innocent third parties who would be endangered by the suspect, could give a different result.]

Relevant Factor: Use of deadly force poses unreasonable risks to innocent third parties.

Scenario: Agents respond to an alarm indicating a bank robbery in progress. When they arrive on the scene, they observe a masked individual running from the bank with what appears to be a gun in his hand. The agents identify themselves and order the subject to stop. In response, the subject fires two shots in the direction of the agents.

As the agents dive for cover, the subject flees into a nearby crowded restaurant. An agent pursues the subject, and from the entrance to the restaurant, sees the subject making his way through the crowd toward the rear exit. The agent fires at the subject.

Discussion: Firing the shots under these circumstances violates FBI policy.

Necessity: The agents have probable cause to believe that the subject has committed a crime involving the infliction or threatened infliction of death or serious physical injury. In addition, the subject is attempting to escape from the vicinity of a violent confrontation.

There is clearly probable cause to believe that the subject poses an imminent danger to the agents and to others. However, firing a weapon into the crowded restaurant creates an unreasonable danger to the public that is not outweighed by the likely benefits.

If other safe options are not available to them, the agents must permit the subject to escape. In considering the availability of other options, agents are reminded that pursuing an armed and dangerous subject is not a safe one.

CONCLUSION

The training provided to FBI agents with the outline and accompanying scenarios lays the foundation for further training throughout their law enforcement careers. The propriety of using deadly force is the most serious decision facing law enforcement officers. Consequently, preparing officers to make these decisions is the gravest responsibility of a law enforcement agency.

Imparting relevant knowledge through realistic training - repeated or otherwise reinforced as often as time and resources permit - teaches officers to make appropriate decisions regarding the use of deadly force. Incorporating departmentally approved illustrations of appropriate policy application enhances their abilities, while instilling confidence in themselves and in their leaders.