Attorney General October 17, 1995 Memorandum on Resolution 14 (Attachment)
Commentary Regarding the Use of Deadly Force
in Custodial Situations
I. Introduction
The Department of Justice hereby establishes a uniform policy with respect to the use of deadly force in both custodial and non-custodial situations. This commentary addresses the use of deadly force in custodial situations including conditions of prison unrest and when a subject is escaping custody. 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 achieve uniformity among the various Departmental components, which previously had established their own standards for 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 within any facility dedicated to the incarceration of persons or by any officer who is responsible for the transporting or custody of persons incarcerated or to be incarcerated. Those portions of the policy which address custodial or prison situations specifically, do not apply to officers who are merely detaining an arrestee or transporting an arrestee from the place of arrest; nor do these portions of the policy apply to the transporting of an arrestee to a facility dedicated to incarceration. In addition, the Immigration and Naturalization Service (INS) officers, in INS controlled facilities, are not authorized to use deadly force except in self-defense or defense of others.
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 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 Department deliberately did not formulate this policy to authorize force up to constitutional or other legal limits.(2)
II. Definitions
Deadly force is 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 intended to cause death or serious physical injury, but unexpectedly results in such injury or death, is not governed by this policy.
Escape for the purposes of this policy encompasses the concept of immediacy of an attempt to leave custody. A person in custody is escaping from a facility or vehicle when he or she is attempting to escape and is still within the facility's immediate environs. Hence the concept of escape is different under this policy than under 18 U.S.C. § 751 and 28 U.S.C. § 1826(c), which provide that escapes are continuing offenses.
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. Deadly Force Generally
The Department of Justice 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 a serious prison disturbance occurs, or when a prisoner confined to a secure facility attempts to escape from custody. 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, including the nature and the severity of prison disturbance, whether officers at the facility carry firearms, the use or threat of use of force upon the officer or others in any escape attempt, and the escapee's response to any warning.
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 unreasonably to place his or her life, that of another officer, another prisoner or suspect, or the public in danger of death or serious injury before using deadly force. Persons who have been determined to require confinement in a secure facility ordinarily pose such a danger when attempting to escape.
IV. Prison Control
No force, deadly or non-deadly, may be used wantonly, maliciously or sadistically by prison officials against prisoners. Force may never be used solely for the purpose of causing harm. Deadly force may be used in maintaining or regaining control of a prison, correctional institution, or any portion or facility of such an institution, in the event of a mutiny, rebellion, riot, or disturbance that threatens the safety of inmates, prison staff, or other persons. Deadly force may be used only when it is necessary and the officer reasonably believes that the subject is him or herself participating in a disturbance. Participation for these purposes is more than simply being in the area where others are visibly creating the disturbance, particularly if the subject has had no opportunity to exit that area. On the other hand, in considering the use of, deadly force in the exigent circumstances of a prison disturbance, an officer need not ascertain who is instigating or leading the disturbance before finding that someone is sufficiently participating in the disturbance. The reasonableness of an officer's determination to use deadly force may turn on the officer's vantage point and assignment. Deadly force may also be used when a single prisoner presents an imminent danger of serious physical injury to another person or persons.
V. Escapes
The Department's responsibility to protect the public is at its zenith when the Department, performing its custodial function, determines that a prisoner is to be confined in a secure facility. Acting in that capacity, the Department's obligation to ensure that prisoner's continued custody entails strict procedures including the threat of the use of deadly force should such a prisoner attempt to escape. Correctional officials may display firearms at federal correctional institutions to deter the escape of such prisoners. Officers may presume that a prisoner attempting an escape from a secure institution, as defined by the Bureau of Prisons, would pose an imminent danger of death or serious physical injury to members of the public if permitted to consummate the escape. Similarly, the use of deadly force is governed by the same principles in the case of prisoners in transit. If the prisoner is in transit to or from a secure facility, deadly force ordinarily would be necessary if no other means were reasonably likely to stop the escape from being consummated. A person attempting an escape is considered to be attempting an escape from a secure institution or in transit to or from it when the limits of such secure confinement have been specially extended, as, for instance, when the subject has been transferred to a hospital or permitted to attend a funeral under armed escort.
The presumption that those attempting to escape from secure facilities pose an imminent danger (and are thus subject to the use of deadly force) runs in the other direction if the facility is non-secure. A determination has already been made that, in non-secure facilities, persons would not pose an imminent danger to the public if the person escaped. Accordingly, and in the absence of other factors demonstrating an imminent threat, it would be unreasonable to use deadly force to prevent escapes of persons from non-secure facilities or to prevent escapes of persons in transit to or from a non-secure facility unless accompanied by persons going from or to a secure facility. Examples of factors demonstrating an imminent threat include the circumstances where the prisoner has become armed or has used or threatened to use force likely to cause serious physical injury. In making the "imminent threat" determination, it should be recognized that "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, for example, a prisoner may pose an imminent threat, even if he or she is not at that very moment in possession of a weapon, if he or she is running to a place where the officer has reason to believe a weapon is available.
Once an escape is no longer in progress, but has been accomplished, that is, once the subject is no longer in the immediate environs of the facility, officers must attempt to effect a rearrest of the subject. In such cases, the policy pertaining to escaping prisoners is no longer applicable. Deadly force would then be authorized only consistent with the policy governing the use of such force in circumstances other than those of escaping prisoners.
VI. Destruction of Property
In accord with the policy permitting the necessary use of deadly force to maintain control of prisons and correctional institutions and to stop attempted escapes, deadly force may be used when someone is destroying or attempting to destroy property, if the loss of or damage to the property could contribute directly to an escape or attempted escape, serious physical injury, or death. Examples of this type of situation include using explosives in order to effect an escape from prison or attempting to disable a fire truck during a fire within an institution. If the destruction of property does not reasonably appear to be likely to so contribute to an escape, serious physical injury, or death, using deadly force would probably be unreasonable and thus forbidden.
VI. Lesser Means
Verbal warnings. The Department of Justice requires that 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 the danger is increased thereby. However, if giving such a command would itself pose a risk of death or grievous bodily harm to the officer or others, it need not be given.
Warning shots. Within or from the immediate environs of a secure facility, warning shots may be fired as an intermediate measure at the discretion of the officer if verbal warnings are to no avail. If the officer determines that the firing of a warning shot is a necessary step to deterring or preventing an escape or preventing the loss of life or the infliction of serious physical injury, the officer may fire warning shots only if he or she can do so safely; that is, there is no apparent danger of injury to an innocent person.
VII. Limitation
Nothing in the policy and this commentary is intended to create or does create an enforceable legal right or private right of action.
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 arrests, prison riots, and escapes; 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. Relatedly, the judicial deference paid to decisions of correctional officers in use-of-force situations, coupled with immunity doctrines, may at least as a theoretical matter result in upholding (or at least failing to sanction) conduct that might not have been undertaken as a matter of policy.
2. The leading Eighth Amendment case, arising in the context of force used during prison unrest, is Whitley v. Albers, 475 U.S. 312 (1986). The courts have not fully resolved the demarcations among the Fourth Amendment, the Fifth Amendment's due process clause, and the Eighth Amendment in limiting the use of force following an arrest. See, e.g., Graham v. Connor, 490 U.S. 386 (1989); Albright v. Oliver, 114 S. Ct. 1340 (1994) (arrest without probable cause, no force involved); Brothers v. Klevenhaqen, 28 F.3d 452 (5th Cir.), cert. denied, ll5 S. Ct. 639 (1994) (analyzing shooting of detainee under Fourteenth Amendment due process); Wricht v. Whiddon, 951 F.2d 297 (llth Cir. 1992).
Attachment A: (Policy Statement on the Use of Deadly Force)
Attachment B: (Commentary on the Use Deadly Force in Non-Custodial Situations)
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