7 August 2001

See contents of full IRS Handbook of Criminal Investigation: http://cryptome.org/irs-ci/irs-ci.htm

Handbook 9.2
Skills and Training of Criminal
Investigation Personnel


Chapter 3
USE OF FORCE PROCEDURES

Contents

[9.2] 3.1  (08-14-2000)
OVERVIEW

  1. The purpose of this chapter is to inform and guide special agents in the application of the Treasury Department's Use of Force Policy. This chapter contains the following information:
    • General Guidelines
    • Weaponless Control
    • Intermediate Weapon Procedures
    • Deadly Force
    • Use of Firearms by Special Agents
    • Post Use of Force Procedures
    • Agents' Responsibilities and Authority Toward Crimes Committed Outside the Jurisdiction of IRS
    • Medical and Liability Considerations

[9.2] 3.2  (07-29-1998)
GENERAL GUIDELINES

  1. Special agents may use force to establish and maintain lawful control of a situation with paramount consideration being given to the preservation of life and prevention of physical injury. The force should:
    1. Be applied timely.
    2. Be the appropriate level of force for the circumstances.

[9.2] 3.2.1  (07-29-1998)
Before Using Force

  1. If possible, special agents should:
    1. Identify themselves as law enforcement officers.
    2. Exercise persuasion, advice, and verbal warning.
  2. However, if verbal means is or may be ineffective, special agents may use physical force to accomplish a law enforcement purpose.

[9.2] 3.2.2  (07-29-1998)
Levels of Force

  1. The Treasury Policy Use of Force Levels on an escalating scale are:
    1. Weaponless control
    2. Intermediate weapon control
    3. Deadly force
  2. The degree of force authorized is limited to that which is necessary to establish and maintain control and depends on the degree of danger perceived by the agents.

[9.2] 3.2.3  (08-14-2000)
When Force May Be Used

  1. Force may be used to:
    1. Minimize the potential for injury.
    2. Provide for the safety of the agent and others.
    3. To accomplish duties authorized by law, such as performing a protective function or effecting an arrest.
  2. The duty of special agents is to take steps to prevent harm to themselves and others.
  3. Special agents do not have to wait for injury to occur before taking appropriate action.
  4. Special agents may have to rapidly escalate or de-escalate the use of force depending on the totality of the circumstances.

[9.2] 3.2.4  (08-14-2000)
Responsibilities of Agents, Supervisory Special Agents, and Non-Treasury Law Enforcement Officers

  1. Special agents are required to be familiar with policies and procedures regarding use of force and post use of force.
  2. Supervisory Special Agents (SSA) must certify to their Special Agent in Charge (SAC), on an annual basis, that special agents assigned to them have reviewed use of force and post use of force procedures.
  3. Non-Treasury law enforcement officers who are participating in task forces sponsored, led, or funded by the Department of the Treasury must comply with this Use of Force Policy. This policy does not apply to non-Treasury law enforcement officers who work with Internal Revenue Service (IRS) special agents on an adhoc basis or who assist in a one-time law enforcement operation.

[9.2] 3.3  (08-14-2000)
WEAPONLESS CONTROL

  1. Weaponless control is the most commonly used control and restraint. Techniques include:
    1. Special agent presence
    2. Identification
    3. Verbal commands
    4. Contact controls
    5. Compliance techniques
    6. Defensive tactics
  2. Weaponless controls are based on fundamental policing skills and capitalize upon the acceptance of authority by the general public.

[9.2] 3.3.1  (07-29-1998)
Categories of Weaponless Controls

  1. Weaponless control techniques can be classified into four categories:
    1. Verbal commands which rely on communication skills, verbal directions, relative positioning, and agent's presence.
    2. Contact control such as the escort position and handcuffing.
    3. Compliance Techniques such as joint locks and pressure points.
    4. Defensive Tactics such as escape techniques, striking techniques, and weapon retention.

[9.2] 3.3.2  (08-14-2000)
When to Use Weaponless Controls

  1. Special agents should use verbal commands, when they perceive their presence, identification, and verbal commands are sufficient to establish and maintain control.
  2. Special agents should escalate to contact controls, compliance techniques, or defensive tactics when they perceive it is necessary to establish and maintain control.

[9.2] 3.3.3  (08-14-2000)
Handcuffs and Restraints

  1. The purpose of handcuffs, transport handcuff restraints, and flexcuffs is to restrain the movements of a subject or prevent further physical resistance by a subject.
  2. All subjects taken into custody should be handcuffed behind their back and the handcuffs double-locked to ensure the safety of the agent and other citizens. Exceptions to this procedure occur when:
    1. The subject has an injury that does not permit handcuffing behind the back.
    2. The subject's age or physical limitations indicate a change in procedure.
    3. It is tactically unsafe for the agent to double-lock the handcuffs.
    4. If tactically safe, transport handcuff restraints may be used to secure a subject's hands in front when transporting the subject for extended periods of time
  3. All subjects should be handcuffed prior to being searched to ensure proper safety of all agents.

[9.2] 3.4  (07-29-1998)
INTERMEDIATE WEAPON CONTROL

  1. Intermediate weapons are weapons other than firearms or lethal weapons with non-lethal munitions, designed to supplement weaponless control techniques.

[9.2] 3.4.1  (07-29-1998)
Authorized Intermediate Weapon

  1. Oleoresin capsicum (OC) is the only authorized intermediate weapon special agents are allowed to carry.
  2. Oleoresin capsicum canisters must consist of a nonflammable aerosol propellant, a nontoxic and nonflammable carrier, and a percentage of OC ranging from 5 to 10 percent.
  3. While OC is the only authorized intermediate weapon, emergency use of a common object as an intermediate weapon is permitted.

[9.2] 3.4.2  (08-14-2000)
When OC May Be Carried

  1. Special agents are authorized to carry the OC intermediate weapon only after they have successfully completed appropriate training. Oleoresin capsicum should be carried in a safe, secure, and readily accessible manner.
  2. Oleoresin capsicum should be carried during tactical operations, e.g., arrests or search warrants.
  3. During any other official duties, special agents may choose to carry OC along with their firearms. Special agents should not carry OC while assigned to Secret Service protection details, consistent with the policy guidelines promulgated by the Director of the Secret Service.
  4. Special agents may carry OC on board an aircraft if secured in checked baggage. The OC canister should be placed in a Zip-Loc type plastic bag, and locked in luggage that will be placed in the cargo compartment of the aircraft. Special agents should contact the airline they will be traveling on to verify permission to transport OC in the above manner. If the airline denies permission, the agents may obtain OC after arriving at their destination from the nearest CI office. The SAC of that field office will make OC available to visiting special agents upon verification that the agents have completed the approved training.

[9.2] 3.4.3  (07-29-1998)
When OC May Be Used

  1. Special agents may use OC when they perceive that weaponless control techniques are or may be insufficient to maintain lawful control and deadly force is not justified.
  2. Special agents may use OC to control animals in situations where the animal poses a threat to special agents or other individuals.

[9.2] 3.4.4  (07-29-1998)
Effect of OC

  1. Oleoresin capsicum is designed to temporarily render an individual incapable of continuing to resist lawful control.

[9.2] 3.4.5  (08-14-2000)
Purchase and Disposal of OC

  1. Oleoresin Capsicum may be purchased by field offices and assigned either to individual special agents on a permanent basis or retained in a pool in the local office and withdrawn as needed.
  2. Oleoresin Capsicum purchased by the Directors of Field Operations and Headquarters will be retained in a pool and withdrawn as needed.
  3. The Chief, Criminal Investigation (CI), Directors of Field Operations, and SAC's, shall make provisions to ensure that chemical weapons are properly disposed of at the expiration of their shelf life.

[9.2] 3.5  (07-29-1998)
DEADLY FORCE

  1. Deadly force is any force likely to cause serious physical injury or death.

[9.2] 3.5.1  (08-14-2000)
Authority to Carry Firearms

  1. Special agents' authority to carry firearms is implied from the authority to make arrests found in 26 USC 7608 (b).

[9.2] 3.5.2  (08-14-2000)
When Deadly Force May Be Used

  1. Special agents may use deadly force only as a last resort when, in the considered opinion of the special agent, the agent or another person is in imminent danger of loss of life or serious physical injury.
    1. "Imminent" has a broader meaning than "immediate" or
      "instantaneous."
    2. A subject may pose an imminent danger even if he or she is not at that very moment pointing a weapon at the agent.
    3. Deadly force may be used to prevent the escape of a fleeing subject if there is probable cause to believe the subject has committed a felony involving the infliction or threatened infliction of serious physical injury or death and the escape of the subject would put the agents or others in imminent danger of serious physical injury or death.
    4. Special agents may direct deadly force against dogs or other vicious animals when necessary in self defense or defense of others.

[9.2] 3.5.3  (08-14-2000)
When Deadly Force Results in Injury (Role of Agents)

  1. The following procedures apply when deadly force is used resulting in injury, property damage, or death. These procedures are furnished as guidelines; they are not intended to be all-inclusive or limiting.
  2. Special agents involved in the use of deadly force should:
    1. Place the subject under arrest (if appropriate), read the subject the Statement of Rights, and secure any weapons present.
    2. Call for medical assistance for all injured parties.
    3. Notify their SSA.
    4. If the situation coincides with a protection detail, evacuate the protectee(s) to a safe location.
    5. Notify local law enforcement authorities and the Treasury Inspector General for Tax Administration (TIGTA) and secure the scene until they arrive.
    6. Identify individuals with knowledge of the incident for subsequent interviews by local law enforcement authorities and the TIGTA.
    7. Compile notes as soon as possible to maintain accuracy.
    8. Furnish their firearms, if discharged, to local law enforcement authorities. This should be done through the SSA or senior special agent on site and a receipt should be obtained.
    9. Cooperate with local law enforcement authorities and the TIGTA by identifying themselves and providing such information as is consistent with the constitutional protection of the special agents, i.e., that firearms were discharged (or other deadly force employed) while acting in an official capacity; that medical assistance has been requested; that suspects are in custody.
    10. When discussing the incident, exercise caution so that confidential tax information is not disclosed.

[9.2] 3.5.4  (07-29-1998)
Rights of Agents When Deadly Force Results in Injury

  1. Special agents have the same constitutional protections as other individuals, i.e., due process, the right to counsel, etc.
  2. Special agents cannot be compelled to make self-incriminating
    statements.
  3. The Service may provide legal representation, depending on the facts of the incident and the type of action(s) initiated.
  4. Special agents may choose to consult a private attorney before providing any oral or written statements.
  5. Special agents will be responsible for selecting and paying for a private attorney.

[9.2] 3.5.5  (08-14-2000)
When Deadly Force Results in Injury (Role of Supervisory Special Agents)

  1. The SSA or senior special agent at the site should:
    1. Oversee protection of subject(s), witness(es), other agents, and the evidence.
    2. Notify local law enforcement authorities and the TIGTA.
    3. Act as an intermediary or assign a "companion agent" to act as an intermediary between the special agents, the TIGTA, and local law enforcement authorities until the agents regain their composure and understand their rights.
    4. Ensure that the special agents involved in the incident receive prompt medical attention, if needed; are removed from the scene as soon as possible; and are not subject to media attention
    5. If the discharge of a special agent's firearm resulted in injury or death, ensure that the firearms and spent cartridges are placed into evidence with local law enforcement authorities. Normally, a different firearm is issued to the special agent until his/her regular weapon is returned.
    6. If special agents are injured, personal contacts should be afforded to their families and transportation provided to the site of treatment. If feasible, the contacts should be by someone who knows the families, by a senior special agent, or by a SSA.
    7. For more detailed information about the role of a SSA in trauma situations, see the Managers Handbook , Chapter 9, Trauma Management for Managers.

[9.2] 3.6  (08-14-2000)
USE OF FIREARMS BY SPECIAL AGENTS (FIREARMS POLICY)

  1. Special agents may discharge their firearms only as a last resort when, in the considered opinion of the special agent, there is an imminent danger of loss of life or serious physical injury to the agent or to another person.
  2. Special agents must conceal their firearms upon their persons, keeping them away from public view when conducting official business. However, special agents may display their firearms, if they feel it will relieve a threat against agents or others.
  3. Special agents should draw their firearms only if there is sufficient cause to expect they will be used and be prepared to use them.
  4. Special agents may not fire their firearms solely to disable a moving vehicle except in the limited circumstances when agents are exercising the Secret Service's protective responsibilities consistent with policy guidelines promulgated by the Director of the Secret Service.
  5. Special agents may fire their firearms at the driver or other occupants of a moving motor vehicle only when:
    1. Agents and others are in imminent danger of serious physical injury or death;and
    2. Public safety benefits of using such force outweigh the safety risk to agents or others.
  6. Warning shots are prohibited because they pose a hazard to innocent parties. However, special agents may use warning shots while exercising the Secret Service's protective responsibilities, consistent with policy guidelines promulgated by the Director of the Secret Service.

[9.2] 3.6.1  (08-14-2000)
Discharge of Firearms

  1. Whenever special agents discharge their firearms while in the performance of official duty, the post use of force procedures outlined in this chapter must be followed. These procedures do not apply to routine firearms discharges, such as during firearms training, qualification, testing, etc.
  2. Whenever special agents have an accidental discharge of their firearms, they must report the incident via memorandum and forward through channels to the Director, National CI Training Academy.

[9.2] 3.6.2  (08-14-2000)
Investigation of Discharged Firearms

  1. The TIGTA will investigate all instances where a discharged firearm resulted in injury, serious property damage, or death.

[9.2] 3.7  (08-14-2000)
POST USE OF FORCE PROCEDURES

  1. After force is used in an official capacity special agents must follow these procedures.

[9.2] 3.7.1  (08-14-2000)
Notification When Force Results in Injury

  1. In all instances where use of force resulted in injury, serious property damage, or death, the following notifications must be made:
    1. The involved special agents or assisting special agents (if the involved agents are incapacitated due to injury) must immediately notify their immediate supervisor of the incident regardless of the time of day.
    2. The immediate supervisor must immediately notify TIGTA and the SAC.
    3. The SAC must then notify the Director of Field Operations, who will in turn notify the Chief, (CI).
    4. Special agents must complete page 1 of Form 9776, Use of Force Incident Report, including a narrative and submit it to the SAC.

[9.2] 3.7.2  (08-14-2000)
If a Firearm was Discharged

  1. If a firearm was discharged and resulted in injury, serious property damage, or death, the following notifications must be made:
    1. The Undersecretary of the Treasury (Enforcement).
    2. The Director, National CI Training Academy.
  2. Special agents must complete Form 9776, including a narrative. A copy of this report and attached narrative must be sent, through channels to the Director, National CI Training Academy, Attention: Use of Force Program Manager.
  3. This procedure must be followed regardless if shots were fired by agents/officers of other law enforcement agencies, a subject, or a third party.

[9.2] 3.7.3  (08-14-2000)
Coping with the Incident

  1. Psychological counseling is available to special agents involved in a use of force incident which resulted in serious injury or death. All communications between the agents and the psychological counselor will fall under the patient-doctor confidentiality rules.
  2. Psychological counseling is also available to their immediate family members.
  3. At the discretion of the SAC, administrative leave may be granted to special agents involved in an incident which resulted in serious injury or death.

[9.2] 3.7.4  (08-14-2000)
Notification When Force Does Not Result in Injury

  1. If a special agent uses force the level of compliance techniques or higher on the Use of Force Model, he/she must complete Form 9776, including a narrative and submit it to the SAC. See 9.2.3-1 and 9.2.3-2, Use of Force Model. A copy of this report and attached narrative must be sent to the Director National Criminal Investigation Training Academy (NCITA): Attention Use of Force Program Manager.
  2. If a firearm is discharged, special agents must complete page 2 of Form 9776. A copy of this report and attached narrative must be sent to the Director, National CI Training Academy, Attention: Use of Force Program Manager.

[9.2] 3.8  (07-29-1998)
AGENTS' RESPONSIBILITIES AND AUTHORITY TOWARD CRIMES COMMITTED OUTSIDE THE JURISDICTION OF IRS

  1. Agents' responsibilities and authority toward crimes committed outside the jurisdiction of IRS is governed by whether the crimes committed are federal or non-federal.

[9.2] 3.8.1  (07-29-1998)
Federal Crimes

  1. Special agents on official duty are expected to respond when a federal crime is committed in their presence by
    1. Immediately calling the appropriate federal or local agency, or
    2. Responding as federal law enforcement officers if it is a life-death situation or an incident in which the agents are inextricably involved.

[9.2] 3.8.2  (08-14-2000)
Non-Federal Crimes

  1. The Federal Law Enforcement Officers Good Samaritan Act provides Federal law enforcement officers "scope of employment coverage and protection when taking reasonable action to protect individuals from injury or bodily harm during the commission of a crime of violence."
  2. The law states "...a law enforcement officer shall be construed to be acting within the scope of his or her office of employment, if the officer takes reasonable action, including the use of force, to: Protect an individual in the presence of the officer from a crime of violence. Provide immediate assistance to an individual who has suffered or is threatened with bodily harm. Prevent the escape of any individual who the officer reasonably believes to have committed in the presence of the officer, a crime or violence."
  3. The importance of "Scope of Employment" coverage is that it allows the agency to not only represent the agents, but also to indemnify the agents if a monetary judgment is awarded against them.
  4. This act does not enhance the law enforcement authority or jurisdiction of any Federal law enforcement officer nor does it require Federal law enforcement officers to become involved. Rather, it assures the agents that if they take reasonable actions to intervene in a crime of violence that may result in a loss of life or serious bodily harm, they will not be personally liable in any lawsuits or judgments filed against them.
  5. Any actions taken must be considered to be "a reasonable officer's response" as established in Graham vs. Connor, 490 U.S. 386, (1989). In some circumstances, notifying the local authorities rather than becoming involved would be the appropriate response.
  6. Special agents must follow the Treasury Department's Use of Force Guidelines at all times when a firearm is used. These guidelines must be followed regardless of the fact that a state or local law may be more liberal in allowing law enforcement officers to use firearms.

[9.2] 3.8.2.1  (08-14-2000)
Department of Justice's Position on Representation

  1. The Department of Justice (DOJ) is currently prohibited by statute from representing agents who acted outside the scope of their employment.
  2. The Department of Justice will determine on a case-by-case basis whether agents acted within the scope of their employment.

[9.2] 3.9  (08-14-2000)
MEDICAL AND LIABILITY CONSIDERATIONS

  1. Whenever a subject is injured during the application of a weaponless control technique or the intermediate weapon (OC), special agents must ensure that the subject receives medical attention as soon as possible.
    1. If an injured subject refuses medical assistance, special agents cannot force the subject to receive treatment.
    2. If a subject in custody refuses treatment, documentation should be obtained from medical personnel that the subject refused treatment.
  2. If special agents cause injury to a person, the injured person is responsible for paying for needed medical services regardless of how the person was injured, even if by accident.
  3. Special agents do not have the authority to pay or commit federal funds for medical services to a person injured by special agents, Antideficiency Act: 31 U.S.C. 1341(a)(1)(A).
    1. Inadvertently violating this Act could result in administrative discipline, including job loss (31 U.S.C. 1518).
    2. Violating this Act knowingly could result in a fine and imprisonment (31 U.S.C. 1519).

[9.2] 3.9.1  (08-14-2000)
The Federal Tort Claims Act

  1. The Federal Tort Claims Act (FTCA), 28 U.S.C. 1346(b), 2671-2680, allows an individual to claim damages against the United States for injury or death caused by the negligent or wrongful acts or omissions by special agents acting within the scope of their employment, where the United States, if a private person, would be liable under applicable state law.
  2. In order for a person to obtain damages, special agents must have acted in a negligent manner.
  3. In order for the United States to assume liability, special agents must have been acting within the scope of their employment, as determined by the state law where an injury occurred. Otherwise, the United States will not assume liability and special agents acting outside the scope of their employment could be sued in state court and be held personally liable for damages upon a judgment against them.

[9.2] 3.9.1.1  (08-14-2000)
If Injured Person Alleges Violation of His or Her Constitutional Rights

  1. If an injured person alleges a violation of his or her constitutional rights, that person could file a lawsuit against the special agents. Unlike FTCA cases, special agents are the defendants and not the United States. Special agents will be represented by the government if the special agents were acting within the scope of their official duties. The special agents would be personally liable upon a judgment against them. However, IRC Section 7423(2) authorizes the Secretary of Treasury to repay damages and costs recovered against federal employees in any suit brought against them by reason of anything done within the scope of their official duties.

[9.2] 3.9.2  (08-14-2000)
Special Agents' Rights

  1. If special agents are injured in the performance of their official duties, the special agents may file claims under the Federal Employees' Compensation Act (5 U.S.C. 8101).

[9.2] 3.9.3  (07-29-1998)
Personal Liability Insurance

  1. Professional liability insurance is available. It is the discretion and financial responsibility of the special agents if they want the insurance.

    Exhibit [9.2] 3-1  (08-14-2000)
    Use of Force Model

Exhibit [9.2] 3-2  (08-14-2000)
Color Codes
>
COLOR CODES
The perception of threat has often been associated with the color spectrum. The five perception levels and their color counterparts include:
Level One--Blue-STRATEGIC
-> The agent is engaged in duties with an occupationally produced perception of responsibilities and risks. The agent can control the subject by using officer presence and verbalization skills.
Level Two--Green-TACTICAL
-> The agent perceives an increase in risks with the confrontational environment, evolving into a procedural process, and the deployment of tactics. The subject exhibits the preliminary level of noncompliance and requires some degree of physical contact by the agent on order to elicit compliance.
Level Three--Yellow-VOLATILE
-> The agent perceives the situation escalating and the level of noncompliance has increased. The subject is using force and/or energy to maintain resistance. The agent uses physical control tactics of sufficient force to overcome the active resistance.
Level Four--Orange-HARMFUL
-> The agent has the perception of an attack or the potential for such an attack on the agent or others. The agent is justified in using defensive countermeasures designed to cease the subject's nonlethal assault on the agent or others, regain control, and assure continued compliance.
Level Five--Red-LETHAL
-> The agent perceives an imminent threat that could result in death or serious physical injury to the agent or others. Immediate countermeasures must be used to stop the threat.
ACTION ARROWS
Double-headed assessment/selection arrows represent the potential for a threatening situation to rapidly escalate, de-escalate, or stabilize. Agent's control responses should also escalate, de-escalate, or stabilize.

Internal Revenue Manual  

Hndbk. 9.2 Chap. 3 USE OF FORCE PROCEDURES

  (07-29-1998)


05/02/2001 14:29:27 EST