**CHAPTER 400 -- INVESTIGATIONS**

**(400)-120** **[Use of Force and Critical Incidents]{.underline}**

120.1 [Overview.]{.underline}

This section establishes the TIGTA Office of Investigations (OI) policy
and procedures regarding use of force by OI special agents (SA) in
pursuit of TIGTA's law enforcement mission. It includes essential
information related to the use of force and response to use of force and
critical incidents by OI personnel. SAs must be knowledgeable about the
policies and procedures contained in this section, which include the
following:

-   [Reporting Requirement](#ReportingRequirement)

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-   [Use of Force](#UseofForce)

-   [Use of Non-Deadly Force](#NonDeadlyForce)

-   [Use of Deadly Force](#DeadlyForce)

-   [Use of Force Incident Response](#UseOfForceIncidentResponse)

-   [Unintentional Discharge of a Firearm
    Response](#UnintendedDischargeFirearmResponse)

-   [Investigation of Use of Force Incident and Unintentional Discharge
    of a Firearm](#InvFirearmDischargeUseForce)

-   [Critical Incident Response](#RespDuringHazMatCBRNE)

120.1.1 [Acronyms
Table.](../../../../../../../../I:/chapter400-inv/acronyms-table/acronyms-table.doc#Intro11)

120.1.2 [Definitions.]{.underline}

**Deadly Force** is the use of any force that is likely to cause death
or serious physical injury in pursuit of a law enforcement objective.
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.

**Non-Deadly Force** is the use of a reasonable level of force, other
than deadly force, necessary to effect an arrest or otherwise accomplish
a law enforcement objective*.*

A **Shooting** is any discharge of a TIGTA-issued firearm that results
in death, injury, or property damage, including discharges that are:

-   Intentional or unintentional;

-   On-duty or off-duty; and/or

-   During firearms training.

This definition also applies to the intentional or unintentional
discharge of a personally-owned firearm that results in death or injury.

**Use of Force Incident** is any use of force in pursuit of a law
enforcement objective (e.g., discharge of a TIGTA-issued firearm,
deployment of an intermediate weapon, weaponless control techniques,
physical force, etc.) by a TIGTA SA or by any officer or agent of
another agency during a joint investigation and/or enforcement operation
with TIGTA that results in death, injury, or property damage.

2.  []{#ReportingRequirement .anchor}[Reporting
    Requirement.]{.underline}

The following events must be reported to the Special Agent-in-Charge
(SAC), Special Inquiries and Intelligence Division (SIID):

-   Any use of force incident. See the use of force incident definition
    in 120.1.2 of this section;

-   Any discharge of a TIGTA-issued firearm, or other firearm in TIGTA's
    custody, other than at training events;

-   Any unintentional discharge of a TIGTA-issued firearm at a training
    event that results in death, injury, or property damage;

-   Any use of a TIGTA-issued intermediate force weapon, other than at
    training events;

-   Any discharge of a firearm that results in the disclosure of, or
    otherwise impacts, the TIGTA SA's position as a Federal law
    enforcement officer.

[]{#UseofForce .anchor}

120.3 [Use of Force.]{.underline}

The Treasury Use of Force Policy is contained in [Treasury Order
105-12](http://www.ustreas.gov/regs/to105-12.htm). The primary
consideration in any 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.

The utilization of force is based upon the threats presented and the
subject\'s degree of compliance or noncompliance.

SAs will apply a reasonable level of force necessary to achieve their
law enforcement objective based on their perceptions of the actions of
the subject.

120.4 []{#NonDeadlyForce .anchor}[Use of Non-Deadly Force.]{.underline}

This policy incorporates the Federal Law Enforcement Training Center's
(FLETC) "Use of Force Model" as illustrated in
[Exhibit(400)-120.1](http://web.tigta.treas.gov/IMDS/chapter400-inv/400-exhibits/exhibit400-120-1.doc).

SAs will use a reasonable level of force necessary to effect an arrest
or otherwise accomplish the law enforcement objective*.*

120.4.1 [Use of Weaponless Control Techniques.]{.underline} When
appropriate, SAs will utilize weaponless control techniques, including
officer presence, identification, verbal commands, comealongs, touch
pressure points, and empty hand strikes.

120.4.2 [Use of Intermediate Weapons.]{.underline} When appropriate, SAs
will utilize a TIGTA intermediate weapon, including an oleoresin
capsicum aerosol and/or an extendable baton. See [Section
130.3](http://web.tigta.treas.gov/IMDS/chapter400-inv/400-130/chapter400-130.doc#IntermediateWeapons)
of this chapter for more information on intermediate weapons.

120.5 []{#DeadlyForce .anchor}[Use of Deadly Force.]{.underline}

SAs may use deadly force only when necessary in pursuit of a law
enforcement objective, that is, when the SA has a reasonable belief that
the subject of such force poses an imminent danger of death or serious
physical injury to the SA or to another person.

120.5.1 [Use of Verbal Warnings Prior to Use of Deadly
Force.]{.underline} If feasible, and if doing so would not increase the
danger to the SA or others, SAs must give a verbal warning to submit to
the SA's authority prior to the use of deadly force.

120.5.2 [Use of Deadly Force Against Fleeing Felons.]{.underline} Deadly
force may be used to prevent the escape of a fleeing suspect 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 pose an imminent danger of death or
    serious physical injury to the SA or another person.

    3.  [Use of Deadly Force Involving Moving Vehicles.]{.underline}
        Weapons may not be fired

solely to disable moving vehicles.

Weapons may be fired at the driver or other occupant of a moving vehicle
only when:

-   The SA has a reasonable belief that the subject poses an imminent
    danger of death or serious physical injury to the SA or to another
    person; and

-   The public safety benefits of using such force outweigh the risks to
    the safety of the SA or other persons.

120.5.4 [Use of Deadly Force Against Vicious Animals.]{.underline}
Deadly force may be directed against dogs or other vicious animals, when
necessary, in self-defense or defense of others.

120.5.5 [Use of Warning Shots.]{.underline} Warning shots are not
permitted.

120.6 []{#UseOfForceIncidentResponse .anchor}[Use of Force Incident
Response.]{.underline}

All use of force incidents will be handled as described in this section.
See 120.1.2 and 120.2 of this section for use of force incident
definition and reporting requirement.

120.6.1 [Senior SA Responsibilities.]{.underline} In a use of force
incident, the senior SA on the scene, unless otherwise unable, shall
assume responsibility for the scene until relieved by an Assistant
Special Agent-in-Charge (ASAC) or other TIGTA OI manager. The senior SA
on the scene is responsible for the following:

-   Making sure the area is safe;

-   Immediately securing medical aid for injured parties. If a person is
    injured by an SA, make a reasonable effort to provide first aid and
    to make medical attention available to the person. An SA has no
    authority to commit Federal funds for payment of medical expenses;

-   Notifying the appropriate local law enforcement agency and securing
    the scene of the incident until their arrival;

-   Separating all SAs involved in the incident and/or witnesses, as
    soon as possible;

-   Preserving evidence until it can be collected by local law
    enforcement or other law enforcement agency having jurisdiction to
    investigate the matter. Do not collect or move evidence unless
    absolutely necessary. If evidence must be moved, clearly mark its
    location and position;

-   Identifying individuals with knowledge of the incident for
    interviews at a later time by local law enforcement and TIGTA SAs;

-   Immediately notifying his/her ASAC or SAC, regardless of the time of
    day;

-   Cooperating with the responding law enforcement agency by presenting
    identification and providing such information as is consistent with
    official duties of the involved SA (e.g., firearms were discharged
    while acting in an official capacity, medical assistance has been
    requested, suspects are in custody);

-   Not disclosing confidential information (e.g., grand jury, tax
    returns and return information) when discussing the incident;

-   Not allowing media personnel to interfere with the crime scene or
    with involved personnel; and

-   Assigning SAs to accompany injured suspects to the hospital to
    record statements. If possible, these SAs should be agents not
    involved in the incident.

120.6.2 [ASAC Responsibilities.]{.underline} An ASAC will be dispatched
to the scene of a use of force incident. If an ASAC or other TIGTA OI
manager is not available to respond, then the senior SA on the scene
will assume the role of the ASAC. An ASAC at the scene is responsible
for the following:

-   Removing the SAs who were involved as primary participants or as
    witnesses from the scene after advising the investigative agency;

-   Assisting the employees involved in the incident, as needed;

-   Assigning a companion to assist employees involved in the incident.
    The companion should be a person not involved in the incident;

-   If an SA discharged a firearm that resulted in death, injury, or
    property damage, taking possession of the firearm and surrendering
    it to the investigating law enforcement agency with the approval of
    the SAC, a higher-level TIGTA OI manager, or their designee. See
    [120.6.4](#FirearmsDisposition) of this section for further guidance
    on disposition of a firearm;

-   Inspecting the firearms of all TIGTA SAs at the scene to ensure that
    all firearms fired and not fired during the incident are identified;

-   Ensuring that the involved SA\'s family is advised that a family
    member was involved in an incident. If feasible, the contact should
    be someone who knows the family. If the SA is injured, ensure that
    the family has transportation to the medical facility. After
    evaluating the circumstances and on a case-by-case basis, the SAC
    can authorize an SA to use a GOV to transport the family to the
    medical facility;

-   Remaining at the scene until all physical evidence has been
    collected, all appropriate investigative details have been attended
    to and the investigative agency has departed the scene. Where
    appropriate, the ASAC shall respond to inquiries posed by the
    investigative law enforcement agency; and

-   Referring all inquiries of the news media to the TIGTA
    Congressional/Media Liaison at Headquarters.

120.6.3 [SAC Responsibilities.]{.underline} In a use of force incident,
the SAC is responsible for the following:

-   Immediately dispatching an ASAC and SAs to the scene of the incident
    to act as liaison and provide investigative and other assistance;

-   Immediately notifying the appropriate Assistant Inspector General
    for Investigations (AIGI) or the Deputy Inspector General for
    Investigations (DIGI) by telephone;

-   Assigning a TIGTA Point of Contact to assist the family/survivors
    when an SA is injured or killed. See the [TIGTA OI Survivor Protocol
    Guide](http://intranet.tigta.treas.gov/oi/operations/policy/survivor.asp)
    for information on providing assistance to family/survivors of a
    deceased OI employee;

-   Notifying the SAC-SIID of the incident;

-   Consulting with the U.S. Attorney's office (USAO) in the SAC's
    geographical area to discuss the USAO's guidelines and TIGTA's
    policy on use of force. These discussions should be held prior to an
    incident. See [Section
    250.13](../../../../../../../../I:/chapter400-inv/400-250/chapter400-250.doc#ReferringCasesCrimAction)
    of this chapter for SAC responsibilities regarding consultation with
    United States Attorneys;

-   Making an initial statement to the media as specified in
    [Exhibit(400)-120.2](../../../../../../../../I:/chapter400-inv/400-exhibits/exhibit400-120-2.doc),
    only after consultation with TIGTA Counsel;

-   Briefly advising the division that a use of force incident occurred;
    and

-   Preparing a Form OI 2020, Fact Sheet, within 24 hours of the
    incident, unless otherwise directed, that includes the following
    information in the case synopsis section:

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-   A synopsis of the incident, including the case number, if case
    related;

-   Date, time and place of the incident;

-   Type(s) of firearm(s) and the approximate number of rounds of
    ammunition fired, if known;

-   If an assault, state the type of weapon used (e.g., gun, bomb,
    knife, etc.);

-   Injuries caused or received;

-   Description of property damage, if applicable;

-   Names of any persons arrested and list of offenses charged;

-   Identification of other persons witnessing or involved in the
    incident; and

-   Name and address of any other agency investigating the incident,
    including agency case number, name and telephone number of the
    assigned investigator, if known at the time of the notification.

The appropriate AIGI or the DIGI will advise the Congressional/Media
Liaison of possible media contacts and request that the
Congressional/Media Liaison not release the names of involved SAs, IRS
employees, or assisting law enforcement officers.

The appropriate AIGI or the DIGI will briefly advise all OI employees
that a use of force incident occurred.

120.6.4 []{#FirearmsDisposition .anchor}[Firearms
Disposition.]{.underline} A TIGTA SA who discharges a firearm during a
TIGTA law enforcement operation may be requested to furnish the
TIGTA-issued firearm to the investigating law enforcement agency. If
this occurs, a TIGTA SA involved in the incident will not surrender
his/her firearm directly to any non-TIGTA investigative agency. The
senior TIGTA SA on the scene will advise the investigating law
enforcement agency of TIGTA's policy on surrendering a firearm. The SAC
or a higher-level TIGTA OI manager must be consulted and approve of the
transfer of a TIGTA-issued firearm to a Federal, state or local law
enforcement agency.

The SAC or a higher level TIGTA OI manager should consider the following
when determining to surrender a TIGTA-issued firearm:

-   Purpose of the surrender (e.g., evidence, ballistic testing, etc.);

-   Request is reasonable (e.g., needed for the investigation of the
    incident); and

-   Serial number, make, and model of the TIGTA-issued firearm are
    documented on a receipt.

If the TIGTA-issued firearm will be surrendered, the firearm will be
provided to the ASAC or the senior TIGTA SA on the scene, who will
surrender it to the appropriate law enforcement agency. The ASAC or the
senior TIGTA SA on the scene will obtain a receipt that contains the
serial number, make, and model of the firearm.

A TIGTA-issued firearm that is discharged will be taken out of service
and its working condition will be examined by the National Firearms
Coordinator (NFC), unless the firearm is being held as evidence or for
ballistic testing by another law enforcement agency. Once a firearm is
returned by another law enforcement agency, forward it to the NFC for
examination.

If there is no resulting death, injury, or property damage, the NFC, or
a person designated by the NFC, will examine the firearm before it is
returned to service.

Based on the circumstances, the SAC will determine if another firearm
will be issued to the SA.

120.6.5 [Statements and Interviews.]{.underline} Any TIGTA employee
involved in a use of force incident, either as a primary participant or
witness, may be interviewed by TIGTA and/or any other investigating law
enforcement agency. A TIGTA employee has the same constitutional and
procedural protections afforded to all subjects of a criminal
investigation and/or prosecution (e.g., the right to remain silent, the
right to due process, the right to counsel, etc.).

All statements made by a TIGTA employee to any TIGTA investigator or to
an employee of another law enforcement agency, are not privileged or
protected. Except as noted below, statements made to Department of
Justice (DOJ) attorneys, or state prosecutors are not generally covered
by the attorney-client privilege.

A TIGTA employee may request DOJ representation in civil actions, and in
state criminal proceedings arising from his/her employment, including
use of force incidents. DOJ representation is generally not available in
Federal criminal proceedings.

Official requests for DOJ representation must be made by the TIGTA
employee, through the SAC, to TIGTA Counsel. Communications between a
TIGTA employee, DOJ attorneys, and TIGTA Counsel attorneys during the
inquiry process to determine eligibility for DOJ representation, are
considered privileged communications. After the inquiry phase is
completed, and if DOJ decides not to represent the TIGTA employee, any
further communication with any of these attorneys, is not privileged.
See [Chapter 700, Chief Counsel, Section
80.1](http://web.tigta.treas.gov/IMDS/chapter700-counsel/700-80/700-80.doc#Overview)
of the TIGTA Operations Manual for further guidance on DOJ
representation.

Any TIGTA employee involved in a use of force incident will inform the
SAC, or his/her designee, before he/she is interviewed as a primary
participant and/or witness by any investigating law enforcement agency.
A TIGTA employee will not be interviewed until the employee has:

-   Been removed from the scene;

-   Met with TIGTA management;

-   Been afforded a reasonable amount of time, at least 24 hours, to
    compose himself/herself, consult with legal counsel, and is capable
    of understanding and exercising his/her rights; and

-   Has a TIGTA management representative with him/her during the
    interview, if desired by the employee.

An interview should be limited in frequency and conducted only after the
investigating law enforcement agency has sufficiently progressed in
their investigation to ask all relevant questions in the interview.

120.6.6 [Employee Assistance.]{.underline} A TIGTA employee involved in
a use of force incident that results in death or serious injury, must
attend a counseling session provided by an IRS Employee Assistance
Program (EAP) counselor or other designated counselor, as soon as
practical after the incident. TIGTA OI managers should be cognizant that
other persons, such as office support staff and family members, may also
experience trauma after a use of force incident. [IRS
EAP](http://erc.web.irs.gov/Displayanswers/AnswerType.asp?QuestionID=1950&SubCategoryID=214&CategoryID=129&FolderID=5)
is available to all TIGTA employees and their families.

Statements made to EAP or other counselors are generally privileged from
access and disclosure in civil litigation, such statements may not be
considered privileged in Federal or state criminal proceedings.

Any TIGTA employee involved in a use of force incident will be placed in
administrative duty status and/or may be placed on administrative leave.
The SAC, appropriate AIGI, or the DIGI may grant administrative leave.
See [Chapter 600, Section
70.4.8](../../../../../../../../I:/chapter600-ms/600-70/chapter600-70-4.doc#timeleave70_4_8)
for guidance on granting administrative leave.

120.7 []{#UnintendedDischargeFirearmResponse .anchor}[Unintentional
Discharge of a Firearm Response.]{.underline} An unintentional discharge
of a TIGTA-issued firearm that results in death, injury, or property
damage, or the unintentional discharge of a personally-owned firearm
that results in death or injury, must be reported to the ASAC, SAC, or a
higher-level TIGTA OI manager, as soon as possible. The SAC must
promptly notify the appropriate AIGI or the DIGI, and the SAC-SIID by
telephone.

When a TIGTA SA unintentionally discharges a TIGTA-issued firearm, the
NFC in conjunction with the appropriate Divisional Firearms Coordinator
(DFC), will arrange for remedial training for the SA.

120.8 []{#InvFirearmDischargeUseForce .anchor}[Investigation of Use of
Force Incident and Unintentional Discharge of a Firearm.]{.underline}

Multiple agencies may be involved in use of force investigations,
including local law enforcement agencies and the Federal Bureau of
Investigation. Generally, the primary purpose of any TIGTA investigation
will be to investigate potential issues involving the TIGTA SA's
actions.

120.8.1 [Roles and Responsibilities.]{.underline} The SAC-SIID will
determine if an investigation of a TIGTA use of force incident or
unintentional discharge of a firearm is warranted. SIID is responsible
for conducting all investigations into TIGTA use of force incidents and
unintentional discharges of a firearm; however, the SAC-SIID, with the
concurrence of an AIGI, may refer an investigation that does not involve
the discharge of a firearm to a field division.

If the investigation is referred to a field division, the investigation
must be conducted by an ASAC from a division that was not involved in
the incident. The appropriate AIGI will select the ASAC who will conduct
the investigation. The SAC-SIID will monitor the progress of the field
division's investigation. Upon receiving the assignment, the ASAC must
immediately contact the SAC-SIID.

120.8.2 [Investigation Requirements.]{.underline} TIGTA's investigation
will include, but will not be limited to, the determination of facts
directly related to the use of force incident or unintentional discharge
of the firearm. All TIGTA employees and others that have direct
knowledge of the incident will be interviewed. Events and circumstances
leading to the incident, such as, training, equipment, investigative
issues, raid planning, etc., will also be reviewed. The SIID SA or field
ASAC assigned the investigation will immediately advise the SAC-SIID of
any indications of individual culpability or continuing safety problems
for appropriate action.

The SIID SA or field ASAC assigned the investigation will prepare a Form
OI 2028, Report of Investigation (ROI) narrating the results of the
investigation. The ROI will be provided to the SAC-SIID as soon as
possible, but no later than 30 days after the incident, unless otherwise
directed by the SAC-SIID. The ROI will include the following:

-   A brief synopsis of the underlying investigation, including the type
    of investigation, if appropriate, and an overview of the incident;
    and

-   A chronology of events, including, but not limited to, the following
    areas, as applicable:

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-   Events and circumstances occurring prior to the incident, including
    any raid/arrest briefings;

-   Identification, assignment, and location of all persons present
    during the incident including TIGTA personnel, other law enforcement
    personnel, witnesses, and suspects;

-   Suspect\'s identification, including name, date of birth, address,
    criminal record, pending criminal charges, and current status;

-   Information concerning the suspect's/victim's actions and statements
    before, during and after the incident, including any evidence of
    drug or alcohol use, belligerence, or threatening behavior with or
    without a weapon;

-   Description and identification of all discharged firearms, expended
    ammunition, the identity of the possessor of each discharged firearm
    at the time of the incident;

-   Description of any verbal warnings given to the suspect. If no
    verbal warning was given, the basis for such decision;

-   An accounting of all rounds of ammunition fired;

-   Information regarding the manufacturer and/or source of acquisition
    of any discharged TIGTA firearms;

-   Results, when available, of technical examination of TIGTA firearms
    by an authorized person, relative to operation of the weapon;

-   The basis for the decision to use deadly force or other force
    resulting in death or injury;

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-   Identification of all injured persons, including cause and extent of
    injuries, and medical treatment provided;

-   Identification and value of any property damage, including cause,
    extent of damage, and responsible party;

-   The date and time of notification to the ASAC or SAC;

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-   Any unique factors contributing to the incident (e.g., weather
    conditions, equipment, communications, misinformation, operational
    planning, etc.);

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-   Topics or issues that should be reviewed by the Shooting and Assault
    Review Committee (SARC); and

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-   List of exhibits and the following exhibit items, as available:

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-   Copies of any statements and/or reports of interview provided to
    other law enforcement agencies;

-   Copies of all operational plans;

-   Copies of all official reports from other investigative agencies;

-   Schematic drawing of the shooting scene;

-   Photographs;

-   List of all relevant evidence recovered at the scene of the
    incident;

-   Copies of any arrest/search warrants;

-   The TIGTA SA's firearm qualification records;

-   Documentation of method of acquisition of involved firearms;

-   Press releases and/or newspaper reports to determine amount and type
    of media coverage; and

-   Any other relevant items.

The final ROI will be provided to the SAC-SIID. Upon review of the ROI,
the SAC-SIID may mandate additional inquiries.

120.8.3 [Shooting and Assault Review Committee .]{.underline} All TIGTA
use of force incidents and unintentional discharges of a firearm that
are investigated will be reviewed by the SARC. The SARC will normally be
convened within 30 days after the submission of the ROI. The SARC is
comprised of the following persons:

-   AIGI-Headquarters Operations;

-   SAC-SIID;

-   SAC-Operations;

-   TIGTA Counsel ;

-   ASAC-Technical and Firearms Support Division (TFSD) (Investigative
    Support); and

-   Two senior level managers from other Federal law enforcement
    agencies.

The SAC-SIID serves as the chairperson. The SARC will review each
incident to determine the following:

-   If the facts and circumstances surrounding each event have been
    accurately and completely reported;

-   If the TIGTA employee was acting within the scope of his/her
    authority;

-   If the employee's actions were reasonable, legal, and within policy;
    and

-   If the use of force was justified.

If the SARC finds all of the above to be true, the SARC can
administratively close the investigation. If the SARC determines there
was misconduct or malfeasance by a TIGTA employee, the findings will be
provided to the appropriate management official for administrative
adjudication. The SARC will also make recommendations, where
appropriate, relating to training, equipment, procedures, etc.

The ASAC-TFSD (Investigative Support) and the ASAC-Training Team will
review the incident to revise training curricula and incorporate
"lessons learned,\" as warranted.

[]{#RespDuringHazMatCBRNE .anchor}120.9 [Critical Incident
Response.]{.underline}

A TIGTA SA is not trained to identify, assess, or directly respond to
critical incidents. However, a TIGTA SA may be a "first responder" to a
suspected critical incident. The types of critical incidents that a
TIGTA SA may respond to, include the following:

-   Hazardous material;

-   Chemical, biological, radiological, nuclear, and explosives;

-   Hostage situation; and

-   Barricade situation.

When responding to a suspected critical incident, a TIGTA SA should
treat the incident as a crime scene, and depending on the circumstances
of the incident, should respond as follows:

-   Remain calm and assess the situation before taking action;

-   Not attempt to touch, smell, taste, or remove potentially
    contaminated material;

-   Remove ambulatory victims from the hazard area;

-   Ensure the area is cleared of personnel and maintain a safe
    distance;

-   Contact the appropriate law enforcement agency and/or response unit;

-   Ensure the safety of other responders;

-   Represent TIGTA's law enforcement interest in the incident; and

-   Establish contact with the senior IRS official on site, if the
    incident involves an IRS facility.

**Note:** A TIGTA SA should cooperate with the law enforcement agency
and/or response unit having jurisdiction to investigate the incident, as
warranted.