United States General Accounting Office

GAO Report to the Chairman, Subcommittee

on Treasury, Postal Service, and General

Government, Committee on

Appropriations, House of

Representatives

March 1996 USE OF FORCE

ATF Policy, Training

and Review Process

Are Comparable to

DEA’s and FBI’s

G O A

years

1921 - 1996

GAO/GGD-96-17

GAO United States

General Accounting Office

Washington, D.C. 20548

General Government Division

B-262134 

March 29, 1996

The Honorable Jim Lightfoot

Chairman, Subcommittee on Treasury,

 Postal Service, and General Government

Committee on Appropriations

House of Representatives

Dear Mr. Chairman:

Your August 2, 1995, letter requested that we review various aspects of the Bureau of Alcohol,

Tobacco and Firearms (ATF). This report responds to your questions concerning ATF’s use of

deadly force and dynamic entry. Specifically, the report discusses (1) ATF’s policies for the use

of deadly force; (2) how ATF conveys its policies to its agents; (3) the reasons for and the extent

to which ATF uses dynamic entry and the equipment it uses to accomplish these entries; and

(4) ATF’s compliance with its procedures for investigating shooting and alleged excessive

use-of-force incidents. The report also discusses how ATF addresses these issues in comparison

to the Drug Enforcement Administration and the Federal Bureau of Investigation.

As agreed with your office, unless you publicly announce its contents earlier, we plan no further

distribution of this report until 30 days from the date of this letter. At that time, we will send

copies to the Secretary of the Treasury, the Attorney General, the Director of ATF, the Director

of the Federal Law Enforcement Training Center, the Administrator of the Drug Enforcement

Administration, the Director of the Federal Bureau of Investigation, and other interested

parties. Copies will be made available to others upon request.

Major contributors to this report are listed in appendix VII. Please call me on (202) 512-8777 if

you or your staff have any questions.

Sincerely yours,

Norman J. Rabkin

Director, Administration of

 Justice Issues
Executive Summary

Purpose According to the International Association of Chiefs of Police, managing

officers’ use of force is one of the most difficult challenges facing law

enforcement agencies. The ability of officers to enforce the law, protect

the public, and guard their own safety is very difficult in an environment

where violent crime is commonplace and firearms are frequently used for

illegal purposes. Because the Bureau of Alcohol, Tobacco and Firearms

(ATF) is the federal agency primarily responsible for enforcing firearms

laws, its agents often face this difficulty.

Over the past several years, ATF has come under public criticism and

congressional scrutiny, in part, due to citizen accusations that ATF agents

used excessive force in carrying out their enforcement responsibilities. In

August 1995, the Chairman of the Subcommittee on Treasury, Postal

Service, and General Government, House Committee on Appropriations,

asked GAO to (1) identify and describe ATF’s policies for the use of deadly

force; (2) determine how ATF conveys its policies to its agents;

(3) determine the reasons for and the extent to which ATF uses dynamic

entry—a tactic used to gain rapid entry to premises when serving high-risk

search and arrest warrants and which may include forced entry—and the

equipment ATF uses to accomplish these entries; and (4) determine

whether ATF has complied with its procedures for investigating shooting

and alleged excessive use-of-force incidents. The Chairman also asked GAO

to compare how ATF addresses these issues with the way the Department

of Justice’s Federal Bureau of Investigation (FBI) and the Drug

Enforcement Administration (DEA) address them. While GAO determined

whether ATF complied with its procedures for investigating shooting and

alleged excessive use-of-force incidents on the basis of a review of

investigative file documents, it did not evaluate the quality and adequacy

of ATF’s investigations. Neither did GAO verify whether all incidents had

been reported nor whether all incidents that had been reported were

investigated.

Background ATF, an agency of the Department of the Treasury, is responsible for,

among other things, investigating criminal violations of federal firearms,

explosives, arson, alcohol, and tobacco laws. As of September 1995, ATF

had 1,944 special agents; 1,777 of these agents were assigned to 24 field

divisions nationwide.

Treasury’s use-of-force policy, revised in October 1995 and applicable to

ATF, is based on the premise of timely and effective application of the

appropriate level of force required to establish and maintain lawful

Page 2 GAO/GGD-96-17 ATF Use of Force
Executive Summary

control. Both Treasury and Justice define “deadly force” as use of any

force that is likely to cause death or serious physical injury. For example,

any firearm discharge directed at a suspect is considered to be deadly

force.

As shown in table 1, ATF, on average, conducted over 12,000 investigations

and arrested about 8,000 suspects during fiscal years 1990 through 1995. In

the course of these activities, ATF was involved in fewer than 10 reported

shooting or alleged excessive force incidents each year.

Table 1: Summary Table of ATF

Investigations, Arrests, Shootings, and

Alleged Excessive Force Incidents,

FYs 1990-1995

FY 1990 FY 1991 FY 1992 FY 1993 FY 1994 FY 1995

Total investigations 11,741 13,735 15,117 13,479 11,965 10,505

Suspects arrested 7,104 8,301 8,631 6,607 9,595 6,692

ATF shooting

incidentsa 4 9 9 2 8 7

Alleged excessive force

incidentsb 3 2 5 3 8 4

aReported intentional shootings at suspects by ATF agents.

bReported alleged excessive force incidents involving ATF agents.

Source: ATF.

Results in Brief In October 1995, Treasury and Justice issued uniform policies governing

the use of deadly force for each of their bureaus and agencies. The revised

policies permit law enforcement officers to use deadly force only when an

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

another person. GAO determined that the 1988 ATF use of deadly force

policy, which was in effect before the issuance of the October 1995

Treasury policy, was, with the two distinctions discussed in the principal

findings, consistent with the 1995 Treasury policy. In addition, ATF’s 1988

policy was, with the three distinctions discussed in the principal findings,

consistent with FBI and DEA policies that were in effect immediately before

the issuance of the 1995 uniform policies.

ATF conveys its deadly force policies to new agents through training. GAO’s

discussions with training officials, reviews of course materials, and

observations showed that the types of deadly force training provided new

ATF agents were consistent with the types of training provided new DEA

and FBI agents. Moreover, ATF policy requires that all ATF agents be

Page 3 GAO/GGD-96-17 ATF Use of Force
Executive Summary

instructed on the deadly force policy at least quarterly throughout their

careers. In the fall of 1995, GAO observed three ATF divisions’ quarterly

firearms qualifications. At each qualification, firearms instructors

reminded agents of the policy.

According to ATF officials and GAO analysis of selected ATF data for fiscal

year 1995, dynamic entry was a principal tactical procedure employed by

ATF when access to premises was required to execute search and arrest

warrants in high-risk operations—those posing a threat of violence—or in

operations where evidence could be easily destroyed. According to ATF

officials, ATF used dynamic entry when, given the specific situation, it

reduced the potential for injury to those involved. According to FBI and DEA

officials, dynamic entry also was a principal tactic used to execute their

high-risk warrants where entry to premises was required. The equipment

used by ATF, DEA, and FBI during dynamic entries is generally comparable

on the basis of GAO’s observations at division offices, discussions with

agency officials, review of ATF inventory listings, and analysis of selected

operations reports for fiscal year 1995.

ATF’s procedures for reporting, investigating, and reviewing shooting

incidents and alleged use of excessive force incidents are consistent with

standards recommended by organizations such as the President’s Council

on Integrity and Efficiency. Overall, ATF’s shooting incident procedures are

comparable with DEA’s and FBI’s with two distinctions. GAO identified

distinctions between ATF and these agencies in the delegation of

investigative responsibilities and representation on review boards. Also,

ATF’s excessive force procedures are comparable to DEA’s with one

distinction relating to delegation. However, ATF’s procedures are not

comparable to FBI’s mainly because of distinctions regarding the referral of

excessive force allegations to Justice for possible civil rights violations.

GAO’s review of ATF’s investigative files for its reported intentional shooting

incidents and alleged use of excessive force incidents for fiscal years 1990

through 1995 showed that ATF (1) complied with its investigative

procedures with an exception discussed below; (2) found that all

intentional shootings were justified; (3) found most allegations of

excessive use of force were unsubstantiated; and (4) sanctioned agents it

determined had engaged in misconduct.

Page 4 GAO/GGD-96-17 ATF Use of Force
Executive Summary

Principal Findings

ATF’s Deadly Force

Policies Have Remained

Generally Consistent in

Recent Years and Are

Generally Consistent With

FBI and DEA Policies

State rules and U.S. Supreme Court guidance on the use of deadly force

have been evolving for a number of years. Approaches among the states on

the use of deadly force have ranged from those that place a predominant

emphasis on the apprehension of a fleeing felon to those that permit such

force only with respect to dangerous suspects and impose several

qualifications on the use of such force. Within this context, federal law

enforcement agencies have adopted policies to govern their employees’

use of deadly force. (See p. 28.)

In October 1995, Treasury and Justice adopted use of deadly force policies

for their component agencies that are uniform with the exception of

certain agency mission-specific provisions covering, for example, Justice’s

prisoner-related responsibilities. Both policies provide that their

respective officers may use deadly force only when necessary, that is,

when the officer has a reasonable belief that the subject of such force

poses an imminent danger of death or serious physical injury to the officer

or another person. (See p. 33.)

The 1988 ATF use of deadly force policy, in effect before the issuance of the

October 1995 Treasury policy, was, with two distinctions, consistent with

the new policy. The two distinctions were that (1) the 1995 Treasury policy

referred to the use of “deadly force” while the 1988 ATF policy referred

more specifically only to the use of a “firearm” and (2) the 1995 Treasury

policy allows for the use of deadly force only when the law enforcement

officer has a “reasonable belief” that there is an imminent danger of death

or serious physical injury while the 1988 ATF policy allowed for the use of

such force when the agent “perceives” an imminent threat of death or

serious physical injury. (See p. 34.)

In addition, the prior ATF policy was, with three distinctions, consistent

with prior DEA and FBI policies. The three distinctions were that (1) ATF’s

policy alone provided the additional qualifying restriction that the threat of

death or serious bodily harm be “imminent,” (2) the ATF and DEA policies

referred to the shooting of “firearms” while the FBI policy used the term

“deadly force,” and (3) the ATF policy used the term “perceives” while the

DEA and FBI used the term “reasonably believe” and “reason to believe,”

respectively. (See p. 35.)

Page 5 GAO/GGD-96-17 ATF Use of Force
Executive Summary

ATF, DEA, and FBI Convey

Deadly Force Policies to

Their Agents in Similar

Ways

ATF conveys its deadly force policies to new agents through training. GAO’s

discussions with training officials, reviews of training materials and

policies, and observations showed that the training provided new ATF

agents to introduce them to the deadly force policies was consistent with

the Treasury/ATF deadly force policies and the types of training provided

were consistent with the training provided to new DEA and FBI agents. (See

p. 37.)

GAO’s discussions and review of course materials also showed that within

the first week of training, each agency provides new agent trainees with a

classroom lecture and discussion describing, with examples, the agency’s

use-of-force and deadly force policies. Thereafter, each agency integrates

use-of-force issues into other segments of the training where force could

be a relevant issue, such as training in physical control techniques. Each

agency employs training techniques, such as practical exercises, that use

role-playing and firearms judgment exercises that require shoot or

not-to-shoot decisions. Furthermore, each agency trains new agents in

how to recognize the perceived level of threat they face and in how to

respond to it with an appropriate level of force. (See p. 42.)

Once new agent training is completed, ATF requires that the use-of-force

policies are to be reiterated to agents throughout their careers at quarterly

firearms qualifications and during tactical operations briefings. In the fall

of 1995, GAO observed three divisions’ quarterly qualifications, interviewed

the divisions’ Firearms Instructor Coordinators, and reviewed

documentation of prior qualifications and used these observations,

interviews, and documentation to confirm that the deadly force policy was

reiterated during qualifications at these three divisions. Also, agents at the

qualifications with whom GAO spoke confirmed that the policy was

reviewed before every tactical operation. DEA and FBI officials said that

deadly force policies are also to be reiterated at their quarterly firearms

qualifications. (See p. 43.)

ATF’s Use of Dynamic

Entries and Related

Equipment Is Generally

Comparable to FBI’s and

DEA’s

Dynamic entry is one of several tactical procedures used by ATF to execute

search and arrest warrants. Dynamic entry, which relies on speed and

surprise and may involve forced entry, is a preferred tactic during

high-risk operations—those where ATF believes that suspects pose a threat

of violence—or in operations where evidence can be easily destroyed. ATF

statistics on suspects arrested from firearms investigations during fiscal

years 1990 to 1995 showed that 46 percent of the suspects had previous

Page 6 GAO/GGD-96-17 ATF Use of Force
Executive Summary

felony convictions, 24 percent had a history of violence, and 18 percent

were armed at the time of their arrests.1

 (See pp. 47 and 56.)

All ATF case agents, including those assigned to special weapons and

tactics units, known as Special Response Teams (SRT), are to be trained in

the dynamic entry technique. GAO observed new agent and SRT training

sessions where ATF agents made dynamic entries into buildings during

practical exercises. Moreover, according to ATF officials, ATF agents

primarily used the dynamic entry technique to gain entry to buildings

during high-risk search and arrest warrants. (See p. 53.)

From fiscal year 1993 through 1995, ATF conducted 35,949 investigations

and arrested 22,894 suspects. During this same period, SRTs were deployed

523 times, and SRT members were involved in 3 intentional shooting

incidents, 1 of which resulted in fatalities. GAO reviewed the available

documentation for all 157 SRT deployments for fiscal year 1995 and found

that the dynamic entry technique was used almost half the time and was

the predominant technique used when an entry to a building was required.

However, in none of the 1995 SRT dynamic entries did ATF agents fire their

weapons at suspects. (See p. 54.)

According to ATF, DEA, and FBI officials, the primary purpose of dynamic

entry is to ensure the safety of agents, as well as suspects and other

individuals, by reducing the potential for suspects to react to the

notification of warrant service. However, in October 1995, ATF decided that

a dynamic entry could be planned only after all other tactical options had

been considered. According to officials, DEA and FBI agents and specialized

teams also often use dynamic entries during high-risk search and arrest

warrant operations to ensure the safety of agents and suspects. (See p. 49.)

The equipment available for use by ATF agents during dynamic entries

generally includes weaponry; breaching equipment, such as battering

rams; and/or other tactical equipment designed for safety, such as ballistic

vests, helmets, and body bunkers. Body bunkers are ballistic shields that

can provide additional protection to agents as they enter and search

premises. In addition to the equipment available to all ATF agents, SRTs

have access to additional firearms, such as bolt-action rifles, and

specialized tactical equipment, such as diversionary devices. GAO’s review

of SRT deployment reports for fiscal year 1995 showed that diversionary

devices represented the specialized equipment most often used by SRTs.

(See p. 57.)

1

ATF did not compile data for suspects armed at arrest for fiscal years 1990 and 1991.

Page 7 GAO/GGD-96-17 ATF Use of Force
Executive Summary

Vehicles used by SRTs generally included vans and trucks that were used

for deployments and storing equipment. GAO’s review of fiscal year 1995

SRT deployment reports, found that SRTs most often used aircraft to obtain

aerial photography of suspects’ locations. In only one fiscal year 1995

operation did an SRT use aircraft to transport agents. ATF equipment,

vehicles, aircraft, and clothing used by SRT’s are generally comparable to

those used by DEA and FBI agents during similar operations on the basis of

GAO’s observations at divisions, discussions with agencies’ officials, review

of ATF equipment lists, and analysis of SRT deployment reports. (See pp. 60

and 63.)

ATF Complied With Its

Procedures for

Investigating Shooting and

Alleged Excessive Force

Incidents

ATF’s procedures for reporting, investigating, and reviewing shooting and

excessive force incidents were revised in October 1994. The revisions

included changes to shooting incident reporting requirements and

procedures, including which types of shooting incidents are and are not to

be reported. ATF procedures are consistent with guidelines and/or

standards recommended by the International Association of Chiefs of

Police, the President’s Council on Integrity and Efficiency, and the

Commission on Accreditation for Law Enforcement Agencies. For

example, agents are required to immediately report shooting incidents to

their supervisors, incidents are to be investigated by an independent unit,

and certain reports are to be reviewed by a review board on the basis of

the nature and seriousness of the incident. (See p. 65.)

Overall, DEA and FBI procedures for reporting, investigating, and reviewing

shooting incidents are comparable to ATF’s. For example, each agency

requires that investigations address similar issues and that reports contain

similar types of information. Distinctions in the procedures include (1) DEA

and FBI delegate some investigative responsibilities to their field

divisions—ATF does not delegate such responsibility and (2) DEA’s and FBI’s

review boards include representatives from Justice—ATF’s review board

does not include representatives from Treasury. While ATF’s excessive

force procedures are comparable to DEA’s with one distinction relating

again to delegation, they are distinct from those employed by FBI. ATF is to

investigate allegations of excessive force first and—if warranted—is to

refer them to Justice for possible criminal investigation. In contrast, FBI

refers all allegations of excessive force to Justice’s Civil Rights Division

for possible criminal investigation before investigating the allegations

itself. (See p. 73.)

Page 8 GAO/GGD-96-17 ATF Use of Force
Executive Summary

GAO’s review of documents in ATF’s investigative files for reported shooting

and excessive use-of-force incidents, for fiscal years 1990 through 1995,

showed that ATF complied with its investigative procedures except that

two investigative files did not include a required record of review2

 by the

designated unit at ATF headquarters. GAO’s review also showed that ATF’s

investigations of 38 reported shootings involving ATF agents’ discharging

their weapons at suspects found each to be justified and within the scope

of its use-of-force policy. In addition, ATF’s investigations found that 18 of

25 reported allegations of excessive force were unsubstantiated. Four

investigations found evidence of some agent misconduct, such as an agent

who confiscated drugs from an informant but failed to turn in or report the

drugs. Two of the investigations were ongoing at the time of GAO’s review,

and one was closed without action because ATF determined that there was

no need for adjudication. ATF agents found to have engaged in misconduct

received written reprimands and suspensions. (See p. 83.)

Due to time and/or methodological constraints, GAO did not evaluate the

events that resulted in the incidents or the quality and adequacy of ATF’s

investigations. In addition, GAO did not verify whether all shooting or

excessive force incidents were reported or whether all reported excessive

force incidents were investigated. Accordingly, GAO’s conclusions about

ATF’s compliance with its investigative procedures are based on GAO’s

review of ATF investigative file documentation required by these

procedures and apply only to these files. (See pp. 83 and 90.)

GAO did not review the shootings arising from ATF’s operation at the Branch

Davidians’ compound in Waco, TX. This incident was independently

investigated by Treasury, which identified shortcomings in ATF’s

operations and reported its findings in September 1993. In October 1995,

ATF reported the actions it had taken in response to Treasury’s findings.

(See p. 25.)

Recommendations GAO is making no recommendations in this report.

Agency Comments GAO requested comments on a draft of this report from the Secretary of the

Treasury and the Attorney General. In separate meetings on March 1, 1996,

the Senior Advisor to the Under Secretary of the Treasury for Enforcement

and ATF officials provided Treasury’s comments, and the Director of the

Audit Liaison Office under the Assistant Attorney General for

2

A document maintained in the investigative file that indicates who reviewed the file and, where

applicable, any annotated comments resulting from the review.

Page 9 GAO/GGD-96-17 ATF Use of Force
Executive Summary

Administration provided Justice’s comments. Also present at the Justice

meeting were officials from the Office of the Attorney General, the Office

of the Deputy Attorney General, the Criminal Division, DEA, and FBI.

Overall, the Treasury and Justice officials either characterized the report

as balanced, accurate, and thorough or had no comments. They provided

some technical comments that GAO has incorporated in this report, where

appropriate. (See p. 27.)

Page 10 GAO/GGD-96-17 ATF Use of Force
Page 11 GAO/GGD-96-17 ATF Use of Force
Contents

Executive Summary 2

Chapter 1 

Introduction

16

Overview of ATF Enforcement Activities 16

What Are Use of Force and Deadly Force? 18

Objectives, Scope, and Methodology 20

Agency Comments 26

Chapter 2 

Treasury and Justice

Use of Deadly Force

Policies Have Been

Adopted to Reflect

Supreme Court

Guidance and Are

Generally Consistent

28

State Rules and Supreme Court Guidance on the Use of Deadly

Force

28

Treasury and Justice Have Adopted Uniform Policies on the Use

of Deadly Force

33

ATF’s 1988 Policy on the Use of Deadly Force Was Generally

Consistent With the 1995 Treasury Policy

34

ATF’s 1988 Policy on the Use of Deadly Force Was Generally

Consistent With Prior DEA and FBI Policies

35

Conclusions 36

Chapter 3 

ATF, DEA, and FBI

Convey Deadly Force

Policies to Their

Agents in Similar

Ways

37

Initial Training Is Designed to Establish the Foundation for New

ATF Agents’ Understanding of Use-of-Force Policies

37

Training Provided New ATF Agents Is Consistent With the Types

of Training DEA and FBI Provided to Their New Agents

42

Agents Are to Be Kept Aware of Use-of-Force Policies at Tactical

Operations Briefings and at Quarterly Firearms Qualifications

43

Disseminating the Revised Treasury Use-of-Force Policy 45

Conclusions 45

Chapter 4 

ATF, DEA, and FBI

Often Use Dynamic

Entries and

Comparable

Equipment to Execute

High-Risk Warrants

47

Dynamic Entry Is a Principal Tactic Used by ATF During

High-Risk Search and Arrest Warrant Operations

47

Equipment ATF Used in Dynamic Entries Is Generally

Comparable to DEA’s and FBI’s

57

Conclusions 64

Page 12 GAO/GGD-96-17 ATF Use of Force
Contents

Chapter 5 

ATF Complied With

Its Procedures for

Investigating Shooting

and Alleged Excessive

Force Incidents

65

ATF Procedures Are Consistent With Recommended Guidelines

and Standards and Are Generally Comparable to Those

Employed by DEA and FBI

65

ATF Complied With Its Investigative Procedures 83

ATF Has Implemented Lessons Learned From Shooting

Investigations

91

Conclusions 94

Appendixes Appendix I: Treasury and Justice 1995 Uniform Use of Deadly

Force Policies and ATF, DEA, and FBI Prior Policies

96

Appendix II: Examples of Use-of-Force Scenarios Used to Train

New Agents

104

Appendix III: Case Examples of ATF SRT Tactical Operations 110

Appendix IV: Procedures for Reporting, Investigating, and

Reviewing Shooting Incidents

116

Appendix V: DEA and FBI Data on Investigations, Arrests,

Shooting Incidents, and Staffing Levels

121

Appendix VI: Information on ATF Adverse Personnel Actions

Resulting From the Waco Operation

123

Appendix VII: Major Contributors to This Report 125

Tables Table 1: Summary Table of ATF Investigations, Arrests,

Shootings, and Alleged Excessive Force Incidents, FYs 1990-1995

3

Table 1.1: Investigations Initiated by ATF, FYs 1990-1995 18

Table 1.2: Suspects Arrested by ATF, FYs 1990-1995 18

Table 3.1: Levels of Threat and Corresponding Force 39

Table 4.1: SRT Deployments, FYs 1993-1995 49

Table 4.2: SRT Intentional Shooting Incidents, FYs 1993-1995 55

Table 5.1: Reported Intentional Shooting Incidents Involving ATF

Agents, FYs 1990-1995

84

Table 5.2: Reported Excessive Force Incidents in Three

Categories Involving ATF Agents, FYs 1990-1995

85

Table V.1: Data on DEA Investigations, Arrests, Related Shooting

Incidents, and Agent Staffing Levels, FYs 1990-1995

121

Table V.2: Data on FBI Investigations, Arrests, Related Shooting

Incidents, and Agent Staffing Levels, FYs 1990-1995

122

Figures Figure 1.1: ATF Organization Chart, as of January 1996 17

Figure 3.1: The FLETC Use-of-Force Model 39

Page 13 GAO/GGD-96-17 ATF Use of Force
Contents

Figure 4.1: Primary Entry Tactic Used During SRT Deployments

in FY 1995

55

Figure 5.1: Procedures for Reporting, Investigating, and

Reviewing Shooting Incidents

68

Figure 5.2: Investigative Procedures for Shooting Incidents 71

Abbreviations

ACC ATF’s Associate Chief Counsel

ATF Bureau of Alcohol, Tobacco and Firearms

CITP Criminal Investigator Training Program

DEA Drug Enforcement Administration

ELRB ATF’s Employee Labor Relations Board

FBI Federal Bureau of Investigation

FLETC Federal Law Enforcement Training Center

FTCA Federal Tort Claims Act

HEAT High Risk Entry and Arrest Team

IACP International Association of Chiefs of Police

MSPB Merit System Protection Board

OCC ATF’s Office of Chief Counsel

OE ATF’s Office of Enforcement

OI ATF’s Office of Inspection

OJT On-the-Job Training

OPR Office of Professional Responsibility

PCIE President’s Council on Integrity and Efficiency

PRB ATF’s Professional Review Board

RAC Resident Agent-in-Charge

SAC Special Agent-in-Charge

SAR Significant Activity Report

SIR Shooting Incident Report

SIRB Shooting Incident Review Board

SIRT Shooting Incident Review Team

SRT Special Response Team

SWAT Special Weapons and Tactics

Page 14 GAO/GGD-96-17 ATF Use of Force
Page 15 GAO/GGD-96-17 ATF Use of Force
Chapter 1 

Introduction

According to the International Association of Chiefs of Police (IACP),

managing officers’ use of force is one of the most difficult challenges

facing law enforcement agencies. The ability of officers to enforce the law,

protect the public, and guard their own safety is very difficult in an

environment in which violent crime is commonplace and firearms are

frequently used for illegal purposes. For the agents of the Bureau of

Alcohol, Tobacco and Firearms (ATF), suspected illegal firearms activities

are the leading cause for their initiating enforcement actions.

Over the past several years, ATF has come under public criticism and

congressional scrutiny primarily as a result of its operation at the Branch

Davidians’ compound in Waco, TX, and citizen accusations that ATF agents

used excessive force in carrying out their enforcement responsibilities.

The February 1993 operation at the Branch Davidians’ compound was

initiated to serve an arrest warrant on David Koresh, the Davidians’ leader,

and to execute a search warrant on the compound. When Koresh refused

to accept the warrants, ATF tried to forcibly enter the compound using a

tactic known as dynamic entry but simultaneously was met with gunfire

from the Branch Davidians. In the ensuing gun battle, four ATF agents and

six Branch Davidians were killed.

Overview of ATF

Enforcement

Activities

ATF is a law enforcement agency within the Department of the Treasury

with responsibilities directed toward reducing violent crime, collecting

revenue, and protecting the public. ATF enforces the federal laws and

regulations relating to alcohol, tobacco, firearms, explosives, and arson.

Among its missions, ATF is to work directly and in cooperation with others

to (1) suppress and prevent crime and violence through enforcement,

regulation, and community outreach and (2) support and assist federal,

state, local, and international law enforcement.

To accomplish its criminal enforcement responsibilities, ATF has 24 field

divisions, headed by special agents-in-charge (SAC), located throughout the

United States. As of September 1995, ATF had a total of 1,944 special agents

of which 1,777 were assigned to its field divisions. ATF’s special agents are

to initiate criminal investigations when notified of suspected illegal

activities by such sources as informants; undercover operatives; and

referrals from ATF inspectors and other federal, state, and local law

enforcement agencies. Figure 1.1 is an ATF organization chart, as of

January 1996, that depicts the principal units discussed in this report.

Page 16 GAO/GGD-96-17 ATF Use of Force
Chapter 1 

Introduction

Figure 1.1: ATF Organization Chart, as of January 1996

Assistant

Director

Inspection

Assistant

Director

Training and

Prof.

Development

Assistant

Director

Liaison and

Public

Information

Deputy

Assistant

Director of

Training and

Professional

Development

Deputy

Assistant

Director of

Regulatory

Enforcement

Field

Operations

Director

Deputy Director

Chief

Counsel

Associate

Director

Enforcement

Assistant

Director

Management

(CFO)

Assistant

Director

Science and

Information

Technology

Deputy

Assistant

Director

of

Inspection

Deputy

Assistant

Director (2)

of Criminal

Enforcement

Field

Operations

Deputy

Assistant

Director of

Criminal

Enforcement

Programs

Deputy

Assistant

Director of

Regulatory

Enforcement

Programs

Inspections

Division

ATF

National

Academy

Field

Divisions

(24)

Districts (5)

Special

Operations

Division

Legal advisor to ATF but is overseen by Chief Counsel, Department of the Treasury

Source: ATF.

As table 1.1 shows, the vast majority of ATF’s enforcement activities have

been directed at suspects who are believed to be engaged in illegal

firearms activities. Suspicion of illegal firearms activities is the principal

reason that initiates ATF firearms investigations.

Page 17 GAO/GGD-96-17 ATF Use of Force
Chapter 1 

Introduction

Table 1.1: Investigations Initiated by

ATF, FYs 1990-1995 Investigation type FY 1990 FY 1991 FY 1992 FY 1993 FY 1994 FY 1995

Firearms 9,753 11,745 12,598 10,489 9,227 7,606

Arson 668 808 1,462 1,955 1,629 1,739

Explosives 1,192 1,079 952 873 888 890

Tobacco 8 15 13 14 19 33

Alcohol 12 9 10 17 9 29

Other 108 79 82 131 193 208

Total 11,741 13,735 15,117 13,479 11,965 10,505

Source: ATF.

On the basis of its investigations, ATF apprehends individuals that it

suspects of criminal violations. As can be seen from table 1.2, most of the

individuals ATF arrested were suspected of violating firearms laws.

Table 1.2: Suspects Arrested by ATF,

FYs 1990-1995 Investigation type FY 1990 FY 1991 FY 1992 FY 1993 FY 1994 FY 1995

Firearms 6,355 7,599 7,971 6,092 8,687 6,034

Arson 276 293 286 275 477 304

Explosives 422 365 342 218 374 284

Tobacco 8 3 3 3 10 21

Alcohol 1 10 9 4 0 12

Other 42 31 20 15 47 37

Total 7,104 8,301 8,631 6,607 9,595 6,692

Source: ATF.

What Are Use of

Force and Deadly

Force?

According to IACP, use of force has been construed to include a wide range

of techniques used to compel compliance. Such techniques range from

verbal persuasion—the lowest force level—to deadly force—the most

severe force level—and everything in between, including physical force,

stun guns, tear gas, batons, and other nonlethal equipment. The variety of

coercive options available to agents in a confrontational setting is often

referred to as the “force continuum.”

According to Treasury policy on the use of force, the primary

consideration in its use is the timely and effective application of the

appropriate level of force required to establish and maintain lawful

control. ATF training materials note that the use of force by law

Page 18 GAO/GGD-96-17 ATF Use of Force
Chapter 1 

Introduction

enforcement officers in the performance of their duties has been

traditionally limited to four categories. Under these categories, use of

force is allowed if necessary to

• overcome resistance to the officer’s lawful commands,

• effect an arrest or detain a suspect,

• maintain custody and prevent escape, or

• protect the officer or other persons.

Furthermore, the training materials note that in determining how much

force may be or should be used, the officer should consider such factors

as the

• nature of the offense for which the suspect is being arrested, e.g., felony or

misdemeanor arrest;

• number of participants on each side;

• size, age, and condition of participants;

• record and/or reputation of the suspect for violence;

• use of alcohol or drugs by the suspect;

• suspect’s mental or psychiatric history;

• presence of innocent bystanders; and

• availability of less violent or nonlethal weapons.

In October 1995, Treasury and the Department of Justice adopted use of

deadly force guidelines that are uniform with the exception of certain

agency mission-specific provisions. For example, while warning shots

generally are not permitted under the Treasury and Justice policies, the

U.S. Secret Service may use warning shots in exercising its protective

responsibilities, the U.S. Customs Service may use warning shots on the

open waters, and Justice agencies may use warning shots under certain

circumstances within the prison context.

In addressing the subject of nondeadly force, the Treasury and Justice

uniform policies recognize that if force other than deadly force reasonably

appears to be sufficient to accomplish an arrest or otherwise accomplish

the law enforcement purpose, deadly force is not necessary. In

commenting on the policy, both Departments committed to take all

reasonable steps to prevent the need to use deadly force.

Both Departments define deadly force as the use of any force that is likely

to cause death or serious physical injury. Therefore, any firearms

discharge that is intended to disable a suspect is considered to be deadly

Page 19 GAO/GGD-96-17 ATF Use of Force
Chapter 1 

Introduction

force. However, the use of other weapons, including those considered

nonlethal, could be construed as a law enforcement officer’s having used

deadly force, depending on the manner in which the weapon was used.

For example, hitting a suspect in the head with a baton is considered to be

the use of deadly force.

Objectives, Scope,

and Methodology

In August 1995, the Chairman of the Subcommittee on Treasury, Postal

Service, and General Government, House Committee on Appropriations,

asked us to (1) identify and describe ATF’s policies for the use of deadly

force; (2) determine how ATF conveys its policies to its agents;

(3) determine the reasons for and the extent to which ATF uses dynamic

entry and the equipment ATF uses to accomplish these entries; and

(4) determine whether ATF has complied with its procedures for

investigating shooting and alleged excessive use-of-force incidents. While

we determined whether ATF complied with procedures for investigating

shooting and alleged excessive use-of-force incidents on the basis of a

review of case file documents, we did not evaluate the quality and

adequacy of ATF’s investigations. In addition, except for a limited check

discussed later, we did not verify whether all shooting and alleged

excessive force incidents were reported or whether all reported

allegations of excessive force were investigated.

The Chairman also asked us to compare how ATF addresses the above

issues with the way that Justice’s Federal Bureau of Investigation (FBI) and

the Drug Enforcement Administration (DEA) address them. In addition, we

were asked to determine (1) whether ATF applies lessons learned from its

reviews of shootings and allegations of excessive use of force and (2) what

authority ATF has to take adverse personnel actions against agents,

particularly in connection with excessive use-of-force incidents.

Objective 1 To identify and describe ATF’s policies on the use of deadly force and

compare them to DEA’s and FBI’s, we reviewed pertinent Treasury, Justice,

ATF, DEA, and FBI policies and accompanying commentaries on the use of

deadly force that were available. Also, we reviewed certain relevant U.S.

Supreme Court and lower court decisions involving the use of deadly

force. We also interviewed appropriate ATF, DEA, and FBI officials

concerning their policies on the use of deadly force.

Page 20 GAO/GGD-96-17 ATF Use of Force
Chapter 1 

Introduction

Objective 2 To determine how ATF conveys its deadly force policies to its agents, we

(1) visited the Federal Law Enforcement Training Center (FLETC) and ATF’s

National Academy in Glynco, GA; (2) observed training facilities,

equipment, and ongoing classes—including Basic Marksmanship,

Judgment Pistol Shooting, Situational Response, Non-Lethal Control

Techniques, and Tactical Operations Planning; and (3) spoke with officials

about the overall training courses provided new agents, in general, and the

use-of-force and firearms training provided, in particular. We also

reviewed teaching guides and student training materials for FLETC’s

Criminal Investigator Training Course and ATF’s New Agent Course. At the

time of our visit to FLETC, ATF did not have any students enrolled in

criminal investigator training for new agents, although there were new

agent classes in progress. However, we observed a class of new ATF agents

attending the National Academy.

We also met with FBI and DEA training officials to discuss their new agent

training courses and use of deadly force training; toured the training

academy at Quantico, VA, and observed the training facilities and

equipment; participated in a demonstration of the Firearms Training

System1

 and reviewed summaries of course materials and instructor

teaching guides for training that discussed use of force. We compared

use-of-force course descriptions and the types of training provided new

ATF agents to course materials and DEA and FBI training officials’

descriptions of the types of training provided new DEA and FBI agents.

We also reviewed (1) ATF’s manual for its new agent On-the-Job Training

Course and identified training objectives dealing with use-of-force issues

and (2) course training materials provided to Special Response Teams

(SRT)—ATF’s version of special weapons and tactics units—on use of force

and deadly force.

We identified and reviewed ATF’s policies requiring use-of-force

discussions during quarterly firearms training and during tactical

operational planning and operation briefings. On September 28, 1995,

October 13, 1995, and December 11, 1995, respectively, we observed

quarterly firearms training at three ATF field divisions—Baltimore;

1

Reacting to realistic video scenarios and using laser pistols, new agents employ the Firearms Training

System in learning to make split-second decisions about whether to shoot a suspect during a

confrontation.

Page 21 GAO/GGD-96-17 ATF Use of Force
Chapter 1 

Introduction

Washington, D.C.; and Los Angeles2—to assure ourselves that the required

use-of-force discussion took place. We also interviewed the divisions’

Firearms Instructor Coordinators concerning firearms training and

use-of-force training and reviewed their records documenting use-of-force

discussions at prior quarters’ training sessions. At the firearms

qualification sessions, we also judgmentally selected and spoke with some

attending ATF agents to determine whether use-of-force discussions were a

regular part of tactical operation planning and operation briefings. Also, in

these divisions, we interviewed Assistant Special Agents-in-Charge

responsible for the SRT, SRT leaders, and group supervisors to determine

whether use-of-force discussions were a part of tactical operation planning

and operation briefings.

Finally, we compared FLETC and ATF training materials with relevant

Treasury/ATF use-of-force and deadly force policies to determine if training

materials complied with the policies.

While our review analyzed whether the agencies’ training reflected

applicable use-of-force policies, we did not assess the effectiveness of the

agencies’ training. In addition, we did not review new agent attendance

records while at FLETC or the ATF National Academy, nor did we review

agent personnel training records while we were at the field divisions.

Objective 3 To determine the reasons for and the extent to which ATF uses dynamic

entry and the equipment used in such entries, we reviewed ATF policies,

procedures, and documents regarding operational planning, dynamic

entries, equipment, and SRT units. Due to time constraints, we did not

review a sample of all ATF enforcement actions conducted by all ATF agents

to determine how often dynamic entry was used. Because (1) SRTs are to

be deployed to conduct ATF’s higher risk search and arrest warrants and

SRTs have access to all of the equipment available to ATF agents as well as

additional specialized equipment and (2) ATF maintains more thorough and

readily available data on SRT operations, including tactics and equipment

used, than it does on its other enforcement groups, we focused our review

and analysis of ATF’s use of dynamic entry and related equipment to

operations involving SRT deployments. However, whenever possible, we

discussed the use of dynamic entries and related equipment by non-SRT

agents with headquarters and division officials.

2

The Los Angeles division was chosen because of its relatively large number of SRT activations and its

more extensive inventory of equipment available during high-risk operations. The remaining two

divisions were chosen because of their proximity to Washington, D.C., in our effort to complete our

work in a timely and cost-effective manner.

Page 22 GAO/GGD-96-17 ATF Use of Force
Chapter 1 

Introduction

We analyzed all SRT deployment activation reports for fiscal year 1995 to

identify the reason for the deployment, the extent to which the

deployment used the dynamic entry tactic to enter a building, whether the

deployment resulted in force being used (e.g., shootings or physical force),

and whether the SRT used specialized equipment. We also obtained an ATF

statistical compilation of fiscal years 1993 and 1994 SRT activation data,

which showed the number of activations, the reason for deployments,

deployments that resulted in force being used (e.g., shootings), and

whether special equipment was used. Furthermore, we reviewed all

shooting incident reports for fiscal years 1990 through 1995 and

determined the number of SRT incidents in which ATF agents fired their

weapons at suspects.

We also interviewed ATF officials in the Special Operations Division to

determine ATF’s practices regarding the use of dynamic entries and other

tactics as well as the type of equipment used for these operations. In

addition, we discussed the use of dynamic entries with ATF division

officials, SRT team leaders, Tactical Operations Officers, and agents at

three ATF field divisions—Washington, D.C.; Baltimore; and Los Angeles.

We reviewed training materials and observed some of the training

provided new agents at FLETC regarding dynamic entries and other tactics

and related equipment. We also reviewed training materials used to train

new SRT members during their initial 2-week training session at Fort

McClellan, AL. We analyzed all SRT training reports for fiscal year 1995 to

determine the type of in-service training received, equipment used during

training, and sources that provided instruction. In addition, we observed

the Washington Division SRT’s fourth quarter 1995 training to determine

what tactical training was received.

We spoke with officials from ATF’s Property and Fleet Management Section

and Enforcement Support Branch regarding ATF policies and controls on

the equipment available for high-risk operations. We also observed the

equipment maintained and issued by the Enforcement Support Branch in

Rockville, MD, and the SRT equipment at the three field divisions we

visited. In addition, at the Washington, D.C., and Los Angeles divisions, we

obtained listings of the SRT equipment and vehicles as well as certain

firearms, breaching tools, and other tactical equipment available for

dynamic entries. Although we observed the SRT equipment maintained in

Baltimore, we did not obtain an equipment listing because at the time of

our visit the SRT had been recently merged into the Washington Division’s

SRT. We discussed the use and sources of this equipment with the Tactical

Page 23 GAO/GGD-96-17 ATF Use of Force
Chapter 1 

Introduction

Operations Officers, the SRT team leaders, and several agents in each of the

three division offices we visited. We also obtained and reviewed

comprehensive listings of rifles and tactical carbines, SRT and armored

vehicles, and aircraft in inventory throughout ATF from ATF’s Inventory

Tracking and Equipment Management System.

In addition, we visited the FBI and DEA Washington field divisions to

compare ATF’s use of dynamic entries and equipment to other federal law

enforcement agencies. At each division, we interviewed division officials,

including entry team leaders, to determine their use of dynamic entries

and other tactics and observed the equipment used by the FBI Special

Weapons and Tactics (SWAT) and DEA entry teams during high-risk

operations. On the basis of the standardization of training provided for

high-risk warrant service, both FBI and DEA officials opined that their

division’s use of dynamic entry and related equipment generally was

representative of other field divisions in their respective agencies. We also

reviewed the literature available from IACP and other law enforcement

experts regarding the use of equipment, dynamic entries, and other tactics

by law enforcement agencies.

Objective 4 To determine whether ATF complied with its procedures for investigating

shooting and use-of-force incidents, we obtained and reviewed the

following information: (1) procedures for reporting, investigating, and

reviewing shooting and misconduct incidents; (2) policies on

administering adverse personnel actions against agents found to have

violated use-of-force policies; (3) policies on protecting complainants from

retaliation; (4) policies on ensuring that lessons learned from

investigations are transmitted to agents; and (5) investigative guidelines

and/or standards recommended by IACP, the President’s Council on

Integrity and Efficiency (PCIE), and the Commission on Accreditation for

Law Enforcement Agencies. We obtained similar information, where

applicable, from DEA and FBI. We also identified and reviewed legislation,

regulations, and court cases related to the use of force by law enforcement

agencies.

We identified and reviewed files related to the investigation of reported

shooting and use of excessive force incidents during fiscal years 1990

through 1995. For shooting incidents, we identified and reviewed 38 of 39

incidents where ATF agents intentionally discharged their weapons at

suspects.3

 For use of excessive force incidents, we identified and reviewed

3

We did not review the Waco incident. No ATF file existed because Treasury investigated the incident.

Page 24 GAO/GGD-96-17 ATF Use of Force
Chapter 1 

Introduction

92 investigations in three categories of alleged agent misconduct:

(1) misconduct during the execution of a search warrant, (2) violation of a

person’s civil rights, and (3) assault by an agent on a person. Because ATF

does not maintain a separate category for use of excessive force, we

judgmentally selected these categories following consultations with ATF

officials and a review of misconduct incident categories. The selection was

based on the likelihood that these categories would include most, if not

all, incidents of alleged use of excessive force. Of the 92 investigations, we

found that 25 involved allegations of the physical abuse of persons and/or

property.

To place the shooting and use of excessive force incidents in perspective,

we obtained statistics related to ATF enforcement actions, such as arrests

and SRT deployments. At the request of the Subcommittee, we also

obtained shooting incident and enforcement action data from DEA and FBI.

However, it should be emphasized that these data were not comparable to

ATF’s, given the agencies’ differences in missions, personnel levels, and

some data definitions. These data are presented in appendix V. As agreed

with the Subcommittee, we did not verify the accuracy of ATF’s, DEA’s, or

FBI’s statistical data because of time limitations.

To determine ATF’s compliance with its investigative procedures, we

reviewed ATF’s investigative files for all 38 intentional shooting incidents

that were reported to and investigated by ATF from fiscal years 1990

through 1995 as well as for the 25 alleged excessive force incidents we

selected. We based our compliance determination on whether the

information in the files indicated that the investigative procedures had

been followed. We looked for the required information on (1) the incident,

such as whether it resulted in injuries or the type of law enforcement

activity that resulted in the incident, and (2) the investigation, such as who

conducted the investigation, who reviewed it, the types of information the

investigation obtained and analyzed, and the outcome of the investigation.

Where documentation was not initially found, we obtained documents

and/or explanations from ATF officials and considered them in our

determination.

Due to time and methodological constraints, we did not evaluate the

quality and adequacy of the shooting and use of excessive force

investigations or the validity of their conclusions. We also did not evaluate

the circumstances, such as law enforcement actions, that resulted in the

shooting or use of excessive force incidents. In addition, we did not verify

the accuracy of the information in ATF’s files. Finally, we did not verify

Page 25 GAO/GGD-96-17 ATF Use of Force
Chapter 1 

Introduction

whether all shooting and alleged excessive force incidents were reported

or whether all reported allegations of excessive force were investigated.

We did, however, do a limited check related to this matter by searching a

computerized news database and contacting two organizations with

possible knowledge of some incidents. The results of this limited check

are discussed in chapter 5.

We discussed issues related to our review, including the use of excessive

force, with officials from (1) ATF’s Office of Inspection, Office of Chief

Counsel, and Office of Enforcement; (2) DEA’s Office of Inspections; (3) the

FBI’s Office of Inspection; and (4) organizations that monitor law

enforcement practices.

Additional Issues To determine whether, and how, ATF applies lessons learned from its

investigations, we (1) identified and reviewed the relevant sections in ATF’s

investigative procedures; (2) obtained from ATF and reviewed examples of

lessons learned being implemented; (3) reviewed ATF’s October 1995

report on the actions taken in response to the lessons learned from the

Waco operation; and (4) discussed related issues with cognizant ATF

officials, including the Associate Director for Enforcement.

To determine ATF’s authority for administering adverse actions against its

personnel—including managers who perform poorly—we (1) obtained and

reviewed the relevant ATF adverse action orders, (2) identified examples of

personnel actions from our review of ATF’s investigative files, and

(3) discussed adverse action issues with staff from ATF’s Employee Labor

Relations Branch (ELRB) and the chairman of the unit charged with

reviewing incidents that may result in adverse action being taken against

ATF personnel. We also obtained relevant documentation from DEA and FBI

and compared it with ATF’s to identify any similarities and differences.

Our review was made between August 1995 and January 1996 in

accordance with generally accepted government auditing standards. We

provided drafts of this report to the Secretary of Treasury and the Attorney

General for comment. Responsible Treasury and Justice officials provided

oral comments at separate meetings on March 1, 1996.

Agency Comments At the March 1, 1996, meetings, the Senior Advisor to the Under Secretary

of the Treasury for Enforcement and ATF officials provided Treasury’s

comments, and the Director of the Audit Liaison Office under the Assistant

Page 26 GAO/GGD-96-17 ATF Use of Force
Chapter 1 

Introduction

Attorney General for Administration provided Justice’s comments. Also

present at the Justice meeting were officials from the Office of the

Attorney General, the Office of the Deputy Attorney General, the Criminal

Division, DEA, and FBI. The Treasury and Justice officials either

characterized the report as balanced, accurate, and thorough or had no

comments. They provided some technical comments that we have

incorporated in this report, where appropriate.

Page 27 GAO/GGD-96-17 ATF Use of Force
Chapter 2 

Treasury and Justice Use of Deadly Force

Policies Have Been Adopted to Reflect

Supreme Court Guidance and Are Generally

Consistent

State rules and Supreme Court guidance on the use of deadly force have

been evolving for a number of years. Approaches among the states on the

use of deadly force have ranged from those that place an emphasis on the

apprehension of a fleeing felon to those that permit such force regarding

dangerous suspects but with certain qualifications. Within this context,

federal law enforcement agencies have, over the years, adopted policies to

govern their employees’ use of deadly force. In October 1995, Treasury and

Justice adopted uniform policies on the use of deadly force. These uniform

policies, like those they replaced, were adopted to reflect applicable

Supreme Court guidance. Treasury’s and Justice’s commentaries,1

 in

general, explain that their policies were formulated to be more restrictive

on the law enforcement officer than constitutional or other legal limits.

ATF’s 1988 use of deadly force policy, which was in effect before the

issuance of the 1995 Treasury policy, was, with two distinctions as

discussed in this chapter, consistent with the new Treasury policy. In

addition, the 1988 ATF policy, was, with three distinctions as discussed in

this chapter, consistent with prior DEA and FBI policies.

State Rules and

Supreme Court

Guidance on the Use

of Deadly Force

State Rules Have Varied By 1985, the rules in the states governing the use of deadly force by law

enforcement officers varied.2

 These rules can generally be grouped into

three categories: (1) the common-law rule, (2) a modified common-law

approach, and (3) the Model Penal Code approach.

Many states followed something similar to the English common-law rule

on the use of deadly force, which existed at the time of this country’s

founding. Generally, deadly force could be used by a law enforcement

officer if necessary to arrest a felony suspect. Because the type of felony

involved is not taken into account, this rule is generally referred to as the

“fleeing felon” rule. An officer could use deadly force when he reasonably

1

Treasury and Justice issued written comments discussing and elaborating upon their 1995 use of

deadly force policies.

2

The issue of the use of deadly force was described by a 1975 decision of the U.S. Court of Appeals for

the Second Circuit as an area characterized by “shifting sands” and “obscured pathways.” Jones v.

Marshall, 528 F. 2d 132, 141 (2d Cir. 1975).

Page 28 GAO/GGD-96-17 ATF Use of Force
Chapter 2 

Treasury and Justice Use of Deadly Force

Policies Have Been Adopted to Reflect

Supreme Court Guidance and Are Generally

Consistent

believed that he was justified in arresting an individual for a felony as long

as the officer also reasonably believed that such force was necessary to

protect himself or prevent escape. To a great extent, the rationale behind

the fleeing felon rule was based on the fact that common-law felonies3

were punishable by death, and the use of deadly force was seen as merely

accelerating the penal process, albeit without providing a trial. For

example, the 1982 Tennessee statute, which was found unconstitutional in

a landmark Supreme Court decision discussed later, was based on the

fleeing felon rule. The decision provided, in part, that “[i]f, after notice of

the intention to arrest the defendant, he either flees or forcibly resists, the

officer may use all the necessary means to effect the arrest.”4

Some states used a modified common-law rule by specifying the felonies

for which deadly force may be used to arrest or by stating that only

“forcible felonies”—also called dangerous felonies—justify the use of

deadly force. An Illinois statute, for example, listed the felonies that may

trigger the use of deadly force:

“’Forcible felony’ means treason, murder, voluntary manslaughter, aggravated criminal

sexual assault, criminal sexual assault, robbery, burglary, arson, kidnapping, aggravated

battery and any other felony which involves the use or threat of physical force or violence

against any individual.”5

Legislatures in other states abandoned the common-law rule for some

form of the Model Penal Code approach, which imposes several

qualifications on the use of deadly force. The Model Penal Code, as

formulated by the American Law Institute6

 in 1962, generally permits the

use of deadly force only when the crime for which the arrest is made

involves conduct including use or threatened use of deadly force or when

there is a substantial risk that the person to be arrested will cause death or

serious bodily harm if his apprehension is delayed. More specifically,

under the Model Penal Code approach, the use of deadly force is not

justified unless (1) the arrest is for a felony, (2) the actor effecting the

arrest is a peace officer or is assisting a peace officer, (3) the actor

3

Common-law felonies were murder, rape, manslaughter, robbery, sodomy, mayhem, burglary, arson,

and larceny.

4

Tenn. Code. Ann. section 40-7-108 (1982).

5

Criminal Code of 1961 section 2-8, Ill. Ann. Stat. ch. 38, section 2-8.

6

The American Law Institute was founded in 1923 and is composed of judges, law professors, and

practitioners. Its objective is to encourage the fair administration of justice throughout the nation by

advancing the uniformity of law, whenever practicable. This goal is accomplished by the work of the

Institute in proposing Model Acts—statutory provisions that legislatures may enact in whole, in part,

or not at all.

Page 29 GAO/GGD-96-17 ATF Use of Force
Chapter 2 

Treasury and Justice Use of Deadly Force

Policies Have Been Adopted to Reflect

Supreme Court Guidance and Are Generally

Consistent

believes such force creates no substantial risk of injury to innocent

persons, and (4) the actor believes that the felony included the use or

threatened use of deadly force or there is a substantial risk that the

suspect will cause death or serious bodily harm if apprehension is

delayed.7

The Supreme Court noted, in 1985, that while there was not a constant or

overwhelming trend away from the common-law rule, a long-term

movement has been away from the emphasis that deadly force may be

used against any fleeing felon.8

Two Supreme Court Cases

Have Provided Some

Guidance on the Use of

Deadly Force

In the 1985 Tennessee v. Garner decision9 and the 1989 Graham v. Connor

decision,10 the Supreme Court addressed the issue of when police may

reasonably use deadly force and provided some clarification as to how

courts should examine allegations that law enforcement officers have used

excessive force.

In Garner, a police officer shot and killed Edward Garner to prevent his

escape from the scene of a burglary, even though Garner did not appear to

be armed. Garner, after being told to halt, tried to climb over a fence at

night in the backyard of a house he was suspected of burglarizing. With

the aid of a flashlight, the officer was able to see Garner’s face and hands.

Even though the officer saw no sign of a weapon, he shot Garner in order

to prevent his escape. The officer argued that his actions were reasonable

under a Tennessee statue that provided that a law enforcement officer

could use any means necessary to make an arrest.

The Supreme Court, basing its determination on a Fourth Amendment11

balancing test, struck down Tennessee’s statute to the extent that it

authorized the use of deadly force against all fleeing suspected felons,

including nondangerous suspects. The Court noted that a seizure occurs

7

American Law Institute, Model Penal Code, section 3.07(2)(b).

8

Tennessee v. Garner, 471 U.S. 1, 18 (1985).

9

Garner, 471 U.S. 1 (1985).

10Graham v. Connor, 490 U.S. 386 (1989).

11The Fourth Amendment contains a prohibition against unreasonable seizures of the person. The

Supreme Court has stated that the Fourth Amendment’s proper function is to constrain, not against all

intrusions as such, but against intrusions that are not justified in the circumstances, or that are made

in an improper manner. Schmerber v. California, 384 U.S. 757, 768 (1966).

Page 30 GAO/GGD-96-17 ATF Use of Force
Chapter 2 

Treasury and Justice Use of Deadly Force

Policies Have Been Adopted to Reflect

Supreme Court Guidance and Are Generally

Consistent

whenever an officer restrains the freedom of a person to walk away.12 The

constitutionality of a seizure is determined by balancing the nature and

quality of the intrusion on the individual’s Fourth Amendment interests

against the importance of the governmental interests alleged to justify the

intrusion. The Court then reasoned that an apprehension using deadly

force is also a seizure subject to the reasonableness requirement of the

Fourth Amendment. In using this balancing test, the Court was not

persuaded that shooting nondangerous fleeing suspects is so vital as to

outweigh the suspect’s interest in his own life. Thus, the Court found that

the use of deadly force to prevent the escape of all felony suspects,

whatever the circumstances, is constitutionally unreasonable. Hence, the

Court found Tennessee’s statute unconstitutional to the extent that it

authorized the use of deadly force against nondangerous fleeing suspects.

However, the Court also found that it is not constitutionally unreasonable

to prevent escape by using deadly force in certain limited circumstances:

“Where the officer has probable cause to believe that the suspect poses a threat of serious

physical harm, either to the officer or to others, it is not constitutionally unreasonable to

prevent escape by using deadly force. Thus, if the suspect threatens the officer with a

weapon or there is probable cause to believe that he has committed a crime involving the

infliction or threatened infliction of serious physical harm, deadly force may be used if

necessary to prevent escape, and if, where feasible, some warning has been given.”

In the 1989 Graham decision,13 the Supreme Court provided some

clarification as to how courts should examine allegations that law

enforcement officers have used excessive force. In Graham, a diabetic felt

the onset of an insulin reaction and drove with a friend to a convenience

store to purchase orange juice. Upon entering the store and seeing the

number of people ahead of him at the checkout line, Graham hurried out

of the store to go to a friend’s house instead. A police officer became

suspicious, followed Graham’s car, and made an investigative stop.

Backup police officers arrived, handcuffed Graham, and ignored Graham’s

attempts to explain and treat his diabetic condition. Graham sustained

various physical injuries during the incident, was thrown headfirst into the

police car, and the officers refused to let him have some orange juice as a

remedy for his condition. Graham was later released when the officers

learned that nothing had happened at the store.

12Garner, 471 U.S. at 7 (1985). It is well settled that police officers may use some degree of force in

effectuating a lawful arrest. Graham, 490 U.S. at 396 (1989).

13Graham, 490 U.S. 386 (1989).

Page 31 GAO/GGD-96-17 ATF Use of Force
Chapter 2 

Treasury and Justice Use of Deadly Force

Policies Have Been Adopted to Reflect

Supreme Court Guidance and Are Generally

Consistent

Graham brought an action against the officers involved in the incident

alleging that the officers had used excessive force in making the

investigatory stop. The District Court applied a four-factor test14 and ruled

in the officers’ favor. The Court of Appeals for the Fourth Circuit, without

attempting to identify the specific constitutional provision under which

Graham’s claim arose, endorsed the four-factor test applied by the District

Court and affirmed the District Court decision.

However, the Supreme Court ruled that the lower courts had applied the

incorrect legal standard and remanded the case in order for the Court of

Appeals to consider the claim under the Fourth Amendment’s

reasonableness standard. In doing so, the Court declared that it was

making

“explicit what was implicit in the Garner analysis—that all claims alleging that law

enforcement officers have used excessive force—deadly or not—in the course of an arrest,

investigatory stop, or other seizure of a free citizen should be analyzed under the Fourth

Amendment’s ’reasonableness’ standard . . . .”

The Court explained that determining whether the force used to effect a

particular seizure is “reasonable” under the Fourth Amendment requires a

careful balancing of “the nature and quality of the intrusion on the

individual’s Fourth Amendment interests against the countervailing

governmental interests at stake.” While recognizing that the test of

reasonableness under the Fourth Amendment is not capable of precise

definition or mechanical application, the Court explained that its proper

application requires careful attention to the facts and circumstances of

each particular case, such as the severity of the crime at issue, whether the

suspect poses an immediate threat to the safety of the officers or others,

and whether the suspect is actively resisting or attempting to evade arrest

by flight. Among other things, the Court noted that the reasonableness of a

particular use of force must be judged from the perspective of a

reasonable officer on the scene, rather than with the 20-20 vision of

hindsight. The Court further noted that the calculus of reasonableness

must allow for the fact that police officers are often forced to make

split-second judgments—in circumstances that are tense, uncertain, and

rapidly evolving—about the amount of force that may be necessary in a

particular situation.

14The District Court considered the following four factors: (1) the need for the application of force,

(2) the relationship between that need and the amount of force that was used, (3) the extent of the

injury inflicted, and (4) whether the force was applied in a good faith effort to maintain and restore

discipline or maliciously and sadistically for the very purpose of causing harm.

Page 32 GAO/GGD-96-17 ATF Use of Force
Chapter 2 

Treasury and Justice Use of Deadly Force

Policies Have Been Adopted to Reflect

Supreme Court Guidance and Are Generally

Consistent

Treasury and Justice

Have Adopted

Uniform Policies on

the Use of Deadly

Force

In October 1995, Treasury and Justice adopted use of deadly force policies

to standardize the various policies their component agencies had adopted

over the years. The policies are uniform with the exception of certain

agency mission-specific provisions covering, for example, Justice’s

prisoner-related responsibilities. Justice’s Resolution 14, which created the

Justice uniform policy, notes that in view of Supreme Court decisions

addressing constitutional restrictions on the use of deadly force,15 Justice’s

investigative agencies have, over the years, adopted policies to govern

their employees’ use of deadly force, albeit in a manner that was not

standardized. Both Justice and Treasury note in their commentaries that

the policies are intended to maintain uniformity among their various

respective departmental components and to achieve uniform standards

and training with respect to the use of deadly force. While components

may develop and conduct their own training on the use of deadly force,

the commentaries state that the new uniform policies govern the use of

deadly force under all circumstances.

The Justice and Treasury uniform policies provide that their respective

officers may use deadly force only when necessary, that is, when the

officer has a reasonable belief that the subject of such force poses an

imminent danger of death or serious physical injury to the officer or

another person. The Treasury and Justice commentaries, in general,

explain that their policies were formulated to be more restrictive on the

law enforcement officer than constitutional or other legal limits. Following

are Treasury’s and Justice’s 1995 policies:

• Treasury: “Treasury Law Enforcement Officers may use deadly force only

when necessary, that is, when the officer has a reasonable belief that the

subject of such force poses an imminent danger of death or serious

physical injury to the officer or to another person.”16

• Justice: “Law enforcement officers and correctional 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.”17

15The Treasury and Justice commentaries explain that in developing the policies, it became apparent

that decisional law provides only limited guidance regarding the use of deadly force.

16The Department of the Treasury, Uniform Policy on the Use of Force, Treasury Order No. 105-12,

section (4)(a) (1995).

17U.S. Department of Justice, Uniform Policy on the Use of Deadly Force, section I (1995).

Page 33 GAO/GGD-96-17 ATF Use of Force
Chapter 2 

Treasury and Justice Use of Deadly Force

Policies Have Been Adopted to Reflect

Supreme Court Guidance and Are Generally

Consistent

Accompanying Treasury and Justice commentary provide that “probable

cause,” “reason to believe,” or a “reasonable belief,” for purposes of their

policies, mean facts and circumstances, including reasonable inferences,

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 commentaries also recognize that 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.

Justice and Treasury commentaries also state that as used in their

respective policies, “imminent” has a broader meaning than “immediate”

or “instantaneous.” The commentaries further state that the concept of

“imminent” should be understood to be elastic, that is, involving a period

of time dependent on the circumstances, rather than the fixed point of

time implicit in the concept of “immediate” or “instantaneous.” Thus, a

subject may pose an imminent danger even if he or she is not at that very

moment pointing a weapon at the officer if, for example, he or she has a

weapon within reach or is running for cover carrying a weapon or running

to a place where the officer has reason to believe a weapon is available.

In addition, the policies provide that if force other than deadly force

appears to be sufficient to accomplish an arrest or otherwise accomplish

the law enforcement purpose, deadly force is not necessary. The

commentaries further provide that if force less than deadly force could

reasonably be expected to accomplish the same end, such as the arrest of

a dangerous fleeing subject, without unreasonably increasing the danger

to the officer or others, then it must be used.

ATF’s 1988 Policy on

the Use of Deadly

Force Was Generally

Consistent With the

1995 Treasury Policy

The 1988 ATF use of deadly force policy, which was in effect before the

issuance of the October 1995 Treasury uniform policy, was, with two

distinctions, consistent with the October 1995 Treasury policy. ATF’s 1988

use of deadly force policy stated that

“A firearm may be discharged when the special agent believes that there is no other means

of control and perceives an imminent threat of death or serious bodily injury to

himself/herself or other innocent persons.”18

18ATF Order No. 3000.8, ch. A, section (3)(a) (1988).

Page 34 GAO/GGD-96-17 ATF Use of Force
Chapter 2 

Treasury and Justice Use of Deadly Force

Policies Have Been Adopted to Reflect

Supreme Court Guidance and Are Generally

Consistent

The 1988 ATF and 1995 Treasury policies are consistent in that both

policies generally authorize the use of such force only when the law

enforcement officer reasonably believes or perceives that there is an

imminent threat or danger of death or serious physical injury to the officer

or another person. Moreover, both the 1988 ATF and 1995 Treasury policies

limit the degree of force authorized to that which is needed to accomplish

the law enforcement purpose. More specifically, the 1988 ATF policy

provided that the degree of force authorized was limited to that which was

necessary to establish lawful order and control in a timely manner, and the

1995 Treasury policy provides that if force other than deadly force appears

to be sufficient to accomplish an arrest or otherwise accomplish the law

enforcement purpose, deadly force is not necessary.

One distinction between the policies is that the 1995 Treasury policy refers

to the use of “deadly force” while the 1988 ATF policy referred more

specifically only to the use of a “firearm.” With respect to the 1988 ATF

policy, an ATF official noted that until 1995, firearms were the only

equipment issued to ATF agents that could inflict deadly force. A second

distinction is that while the 1995 Treasury policy allows for the use of

deadly force only when the law enforcement officer has a “reasonable

belief” that there is an imminent threat of death or serious physical injury,

the 1988 ATF policy allowed for the use of such force when the special

agent “perceives” an imminent threat of death or serious physical injury.

An ATF official noted that, under the 1988 policy, the special agent’s

perception of an imminent threat would have been within the context of

additional policy language which provided that “the authority to bear

firearms carries with it an obligation to exercise discipline, restraint, and

good judgement.”

ATF’s 1988 Policy on

the Use of Deadly

Force Was Generally

Consistent With Prior

DEA and FBI Policies

The 1988 ATF use of deadly force policy was, with three distinctions,

consistent with DEA and FBI policies in effect prior to the issuance of the

1995 uniform policies. Following are DEA’s and FBI’s prior policies:

• DEA: “Agents are not to shoot any person except in self-defense, when they

reasonably believe they or another person are in danger of death or

grievous bodily harm.”19

• FBI: “Agents are not to use deadly force against any person except as

necessary in self-defense or the defense of another, when they have reason

19Drug Enforcement Administration, Policy on the Use of Deadly Force, section 6122.13 (A).

Page 35 GAO/GGD-96-17 ATF Use of Force
Chapter 2 

Treasury and Justice Use of Deadly Force

Policies Have Been Adopted to Reflect

Supreme Court Guidance and Are Generally

Consistent

to believe they or another are in danger of death or grievous bodily

harm.”20

The prior ATF policy was consistent with prior DEA and FBI policies in that

they generally authorized the use of deadly force only when the agents

reasonably believed or perceived that there was a threat or danger of

death or serious bodily harm to the agent or another person. One

distinction among the three policies was that the ATF policy alone provided

the additional qualifying restriction that such threat be “imminent.” In

addition, the aforementioned “firearm/deadly force” and “reasonably

believes/perceives” distinctions also existed among the prior policies.

More specifically, (1) the ATF and DEA policies referred to the shooting of a

“firearm” while the FBI policy used the term “deadly force” and (2) the ATF

policy used the term “perceives” while the DEA and FBI used the terms

“reasonably believe” and “reason to believe,” respectively.

The policies described in this chapter contain additional guidance

regarding specific situations, such as fleeing persons, escaping prisoners,

verbal warnings, warning shots, and shooting at or from vehicles. This

additional information can be found in appendix I.

Conclusions As Supreme Court guidance and state rules on the use of deadly force have

evolved over the years, so have the policies of federal agencies. In

addition, the ability of officers to enforce the law, protect the public, and

guard their own safety is a very difficult task. Officers are often forced to

make split-second judgments in circumstances that have been described

as tense, uncertain, and rapidly evolving. Recently, Treasury and Justice

adopted uniform policies to standardize the policies of their component

agencies. Since 1988, ATF has maintained a policy that was, with three

distinctions as discussed in this chapter, consistent with prior FBI and DEA

policies. ATF’s 1988 policy was also, with two distinctions as discussed in

this chapter, consistent with Treasury’s current uniform policy.

20Manual of Investigative Operations and Guidelines, Part II - Section 12. FBI materials assert that this

policy is more restrictive than the constitutional standard announced in Garner.

Page 36 GAO/GGD-96-17 ATF Use of Force
Chapter 3 

ATF, DEA, and FBI Convey Deadly Force

Policies to Their Agents in Similar Ways

Use of deadly force training provided new ATF agents at FLETC1 and the ATF

National Academy reflected the ATF/Treasury deadly force policy. This

policy is also to be reiterated to new agents during their probationary

period when they receive on-the-job training (OJT). Furthermore, the types

of deadly force training new ATF agents received at FLETC and the ATF

National Academy were consistent with the types of training provided new

FBI and DEA agents. Moreover, ATF policy requires that ATF agents be

reminded of the deadly force policy at least quarterly throughout their

careers.

Initial Training Is

Designed to Establish

the Foundation for

New ATF Agents’

Understanding of

Use-of-Force Policies

The first year with ATF, new agents are to receive about 17 weeks of formal

training—about 8 weeks in general criminal investigator skills and

techniques at FLETC and 9 weeks in ATF-specific training at the National

Academy. In addition, agents also participate in ATF’s OJT for new agents.

Training at FLETC FLETC requires that all students who attend the basic criminal investigator

course be trained in Treasury’s/FLETC’s Use-of-Force Policy and Firearms

Policy, including deadly force. Because Treasury’s use-of-force and deadly

force policies are applicable to all of its bureaus, the use-of-force policies

taught at FLETC are generally consistent with ATF’s policies. Once trained

on the policies and tested on their knowledge of them, students are

required to demonstrate their knowledge and apply the policies where

applicable throughout their training.

All new ATF agents are required to attend the FLETC’s Criminal Investigator

Training Program (CITP).2

 This program, which in fiscal year 1996 is to be

expanded to approximately 9 weeks from slightly over 8 weeks in fiscal

year 1995, provides basic training in a broad range of skills that criminal

investigators require. Among the more than 70 course topics presented are

interviewing, case management, surveillance, undercover operations,

crime scene investigation, fingerprints, constitutional law, court

testimony, and search and seizure. All Treasury bureaus’ and many

1

FLETC, which was established in 1970, is a Treasury bureau but has an interagency Board of

Directors. FLETC serves as a law enforcement training organization for more than 70 federal agencies,

as well as offering training programs for state and local enforcement personnel.

2

Exceptions are made for new agents who have transferred from other law enforcement agencies and

have completed equivalent training.

Page 37 GAO/GGD-96-17 ATF Use of Force
Chapter 3 

ATF, DEA, and FBI Convey Deadly Force

Policies to Their Agents in Similar Ways

non-Treasury agencies are to send their new agents to FLETC for basic

criminal investigator training.

CITP training consists of three methods of presentation—

classroom/lecture; laboratory, where students practice skills under an

instructor’s guidance; and practical exercises, where students participate

in a related law enforcement scenario and demonstrate law enforcement

skills. Students are to receive over 175 hours of training in the

classroom/lecture, 117 hours of laboratory work, and 39 hours of practical

exercises. They are to be graded in both lecture material and practical

exercises. During CITP, students are to be given 5 written examinations on

which they must score at least 70 percent and satisfactorily complete all

required tasks during the practical exercises.

Use-of-Force Training According to FLETC officials, in about 1990, the FLETC Use-of-Force

Oversight Committee developed a use-of-force continuum model,

consistent with Treasury policies, which has been used to train all

students. Furthermore, the Committee recommended and FLETC agreed to

integrate use-of-force issues, where applicable, into all FLETC courses. As a

result, FLETC provides a 2-hour course on Firearms Policy during the first

week of training that presents, among other things, the basic concepts in

the use of force, including deadly force, and introduces students to FLETC’s

Use-of-Force Model (discussed below). Among the performance objectives

of this course are that the student is to be able to (1) identify basic

principles governing the use of force, (2) identify and apply the

appropriate force, and (3) identify and apply the firearms policy and

guidelines to hypothetical situations and practical exercises that are given

throughout the training program.

The FLETC Use-of-Force Model The FLETC Use-of-Force Model is composed of five color-coded levels of

force designed to correspond to officers’ perceptions of the level of threat

with which they are confronted and describes the progression or

de-escalation of force on the basis of the demonstrated level of

compliance or resistance from a subject. Students are shown a video

illustrating a situation that poses various levels of threat and emphasizes

how threats in real-life situations can escalate and de-escalate from one

level to another. Table 3.1 shows the levels of threat and the

corresponding force represented in the Use-of-Force Model.

Page 38 GAO/GGD-96-17 ATF Use of Force
Chapter 3 

ATF, DEA, and FBI Convey Deadly Force

Policies to Their Agents in Similar Ways

Table 3.1: Levels of Threat and

Corresponding Force Level of threat Corresponding force

(1)Compliant (blue level) Communication, such as verbal commands

(2)Passive resistance (green level) Low-level physical tactics, such as

grabbing a suspect’s arm

(3)Active resistance (yellow level) Use of come-along holds, pressure points,

and chemical sprays

(4)Assaultive with the potential for bodily

harm (orange level)

Defensive tactics, such as striking

maneuvers with the hands or a baton

(5)Assaultive with the potential for serious

bodily harm or death (red level)

Deadly force

Source: FLETC.

In addition to its presentation in training courses, FLETC officials said that

the Use-of-Force Model is prominently displayed in all classrooms and

throughout FLETC hallways. We observed that the Use-of-Force Model was

displayed in the FLETC classrooms we visited as well as in hallways, firing

ranges, and the cafeteria (see fig. 3.1).

Figure 3.1: The FLETC Use-of-Force Model

Compliant


(cooperative)

Resistant


(passive)

Resistant


(active)

Assaultive


(bodily harm)

Assaultive


(serious bodily


harm/death)

Deadly force

Defensive tactics

Compliance


techniques

Contact controls

Communication


skills

Reasonable officer's


response

Reasonable officer's


perception


V

IV

III

II

I

Enforcement


electives

Source: FLETC.

Page 39 GAO/GGD-96-17 ATF Use of Force
Chapter 3 

ATF, DEA, and FBI Convey Deadly Force

Policies to Their Agents in Similar Ways

Other CITP Courses That

Address Use of Force and

Deadly Force

Our review of FLETC CITP course materials identified seven other courses

(besides the Firearms Policy course) in which use-of-force topics were

presented in varying amounts. These courses were (1) Detention and

Arrest, (2) Execution of a Search Warrant, (3) Judgment Pistol Shooting,

(4) Situational Response, (5) Introduction to Physical Techniques,

(6) Non-lethal Control Techniques, and (7) The Removal and Positioning

for Transportation of Reluctant Suspects. These courses contain

components whose objectives are to train students in identifying threats

and use-of-force concepts, applying the proper use of force to the threat,

and honing judgmental skills in applying the various levels of force,

including deadly force.

For example, in the Detention and Arrest course (10 hours), terms used in

the use-of-force policy are to be defined, Supreme Court rulings on deadly

force are to be discussed, and the FLETC Use-of-Force Model is to be

presented. One of the objectives of the course is to train students to

recognize the degree of force, which may include deadly force, that may

be used to effect an arrest, according to Treasury/FLETC Firearms Policy.

In Judgment Pistol Shooting (3 hours), students are to use a weapon that

has been altered to shoot a laser beam. They are confronted by realistic

video scenarios on a giant screen that require them to use proper

judgment in making shoot or not-to-shoot decisions. Students are required

to identify the elements of jeopardy with which they are confronted and to

provide a rational explanation in each instance of questionable judgment.

Failure to properly respond to the video could result in the video

perpetrator’s “killing” the agent or another person. To successfully pass

the course, students must score 100 percent in judgment and 70 percent in

shooting accuracy.

In Situational Response (2 hours), students are to be given a scripted

scenario in which they are placed into a situation and have to react to the

threat posed by an instructor/role-player. Both students and role-players

are to wear protective clothing and have weapons that fire paint bullets

(commonly referred to as simunitions), which mark the target they hit.

Students have to react to shoot and not-to-shoot situations and

demonstrate the application of the deadly force policy.

In Non-Lethal Control Techniques (30 hours), students are to be provided

the basic skills required to control and arrest a compliant and a

noncompliant suspect without using deadly force. As part of the training,

students are required to assess the threat and resistance level of the

Page 40 GAO/GGD-96-17 ATF Use of Force
Chapter 3 

ATF, DEA, and FBI Convey Deadly Force

Policies to Their Agents in Similar Ways

suspect and respond with the correct level of force and control as required

by the FLETC Use-of-Force Model.

Training at ATF’s National

Academy

ATF students who successfully complete CITP are also required to attend

New Agent Training at ATF’s National Academy, which is located on the

FLETC campus. New Agent Training is 9 weeks and focuses on the laws,

policies, procedures, and specialized investigative techniques that are

specific to ATF and designed to orientate new agents to their roles as

special agents. Our review of course materials identified three courses that

address ATF’s use of deadly force policy:3

 (1) Firearms Usage Policy,

(2) Situational Response for ATF New Agent Training, and (3) Tactical

Operations Planning. A portion of the Firearms Usage Policy course is to

be devoted to reiterating ATF’s use-of-force and deadly force policies and

the authority and limitations that agents bear in exercising the use of

force.

In Situational Response for ATF New Agent Training (4 hours), students are

to work in two- or more person teams with simunitions and participate in

7 realistic scenarios. These scenarios are designed from real-life

experiences of ATF agents to challenge the students’ ability to make proper

decisions regarding the use of force, tactics, the use of cover, and, if

appropriate, marksmanship. In this course, emphasis is placed on

resolving the exercises with the use of surprise, speed, and, if necessary,

violence without the use of deadly force. Among the objectives of the

course are to allow the students to (1) demonstrate the ability to make

proper deadly force decisions, (2) utilize the principles of tactics to gain

control of situations and to avoid shootouts, and (3) demonstrate the

ability to articulate a rational explanation of shooting decisions.

In Tactical Operations Planning (2 hours), students are to compile the

necessary intelligence to develop and execute tactical plans relating to

search warrants, high-risk search warrants, arrests, and undercover

operations. As part of the training in operational briefings, students are to

be taught that the Treasury/ATF Firearms Policy is required to be presented

before the execution of tactical plans.

ATF On-the-Job Training During the first year with ATF, new agents are supposed to complete phase

1 of the training program. For phase 1, new agents, in addition to attending

3

Use-of-force policies, including deadly force, are contained in ATF’s Firearms Policy, ATF Order

3000.8.

Page 41 GAO/GGD-96-17 ATF Use of Force
Chapter 3 

ATF, DEA, and FBI Convey Deadly Force

Policies to Their Agents in Similar Ways

CITP and New Agent Training, are to continue their training at their post of

duty under the guidance of an experienced agent who has been designated

as an OJT instructor. The purpose of OJT is to acquaint the new agent with

applicable policies and procedures and to expose the trainee to various

investigative activities. During this period, the trainee is expected to

display the appropriate skill, knowledge, and judgment that is needed

during their involvement in situations related to the training objective,

such as during an arrest situation. For example, during OJT on arrest

procedures, students are expected to understand the limitations on the use

of force and the restrictions and limitations on using firearms when

making an arrest. The student is also to understand and demonstrate

proper custody and control of subjects.

Training Provided

New ATF Agents Is

Consistent With the

Types of Training DEA

and FBI Provided to

Their New Agents

The types of training provided to new ATF agents in fiscal year 1995 to

introduce them to and train them in the use-of-force and deadly force

policies was consistent with the types of training provided to DEA and FBI

new agents.

Each agency provided new agent trainees with an initial 2-hour classroom

lecture4

 and discussion describing with examples the agency’s

use-of-force/deadly force policy within the first week of the training. (App.

II provides FLETC and FBI excerpts from nine training scenarios in which

the use of force was used and the rationale for whether the force used was

appropriate.) Thereafter, each agency employed a building-block approach

that integrates the use-of-force/deadly force issues into other segments of

the training in which the use of force could be a relevant issue, such as

physical control techniques, arrests, and on search and seizure training.

Each of the agencies employed training techniques, such as practical

exercises using role-playing, simunitions exercises, and firearms judgment

exercises that use realistic video scenarios requiring shoot or not-to-shoot

decisions. Furthermore, each agency trained its new agents in recognizing

the perceived level of threat they face and in responding to it with an

appropriate level of force.

FBI training officials stated that DEA and FBI have similar use-of-force

training programs for new agents. One official noted that although the

exact language of their policies might be somewhat different (the Treasury

and Justice policies applicable to DEA and FBI were revised in October 1995

and are now generally uniform for DEA and FBI), DEA and FBI interpret and

4

According to FBI officials, for fiscal year 1996, legal instruction on the deadly force policy was being

expanded to 4 hours during the first week of new agent training.

Page 42 GAO/GGD-96-17 ATF Use of Force
Chapter 3 

ATF, DEA, and FBI Convey Deadly Force

Policies to Their Agents in Similar Ways

apply their use-of-force policies almost identically in training programs.

This official said that he instructs on legal issues for the use-of-force policy

course for FBI’s new agents and has taught DEA’s new agents as well and

that he had also provided training assistance at FLETC.

Agents Are to Be Kept

Aware of Use-of-Force

Policies at Tactical

Operations Briefings

and at Quarterly

Firearms

Qualifications

Even after the training of new agents is completed and agents are provided

full special agent responsibilities, they are to be frequently exposed to the

use-of-force and deadly force policies. ATF policy requires that these

policies be reiterated during the planning process for tactical operations

and quarterly during firearms requalification training.

Tactical Operations Plans

and Briefings

For over a decade, ATF policy has required that for every search warrant

obtained, a plan is to be developed to execute the warrant and that all

persons participating in the warrant are to be briefed on the plan.

Moreover, the policy requires that every person participating in the plan,

especially those who are not Treasury enforcement officers, are to be

advised of Treasury’s policy on the use of firearms.

A January 27, 1995, ATF policy brief stated that due to the increase in

violence encountered by agents during the execution of search warrants,

arrest warrants, and undercover operations, special agents planning to

execute such operations are required to prepare an operational plan. The

ATF guidance for operational plans stated that “the use of a well written

operational plan, in concert with a thorough briefing, substantially

enhances the safety of the special agents, public, and suspects.” ATF policy

requires that all enforcement officers involved in the operation be

provided a copy of the operational plan. Among the issues to be discussed

at the operational plan briefing is ATF’s firearms policy on the use of deadly

force. The plan, which is to be prepared on a standardized form, contains a

block that is to be checked when the policy is discussed.

ATF agents with whom we spoke at the Washington, Los Angeles, and

Baltimore divisions stated that the firearms policy on use of deadly force

was reiterated before all operations.

Page 43 GAO/GGD-96-17 ATF Use of Force
Chapter 3 

ATF, DEA, and FBI Convey Deadly Force

Policies to Their Agents in Similar Ways

Quarterly Firearms

Training

ATF’s firearms policy requires all special agents to qualify in marksmanship

with their primary duty firearm each quarter. Agents who fail to meet

minimum qualification requirements are not to be certified to use that

weapon until they requalify. Because the requirement applies to the

primary duty weapon, each agent,5

 even those in supervisory positions at

headquarters, must attend and qualify each quarter. Furthermore, the ATF

policy requires that as part of each firearms training session, no less than 1

hour of instruction is to be provided on ATF firearms/ammunition

standards and procedures and the use-of-force policy. Each Firearms

Instructor Coordinator is required to document the training provided and

certify that the firearms policy instruction was provided.

We observed one quarterly firearms training session at each of the

Washington, Los Angeles, and Baltimore divisions. At each session, the

divisions’ Firearms Instructor Coordinator read the use-of-force and

deadly force policies to the agents. At the fourth quarter of the Washington

Division’s fiscal year 1995 qualification, the coordinator elaborated on

various points in the policies, such as the prohibitions against firing at

moving vehicles and firing warning shots. At the Los Angeles Division’s

first quarter of fiscal year 1996 qualification, the coordinator reviewed the

revised October 1995 Treasury use of deadly force policy and confirmed

that all agents had received copies of the new policy. He also gave the

agents a quiz that included questions on the policy, among other topics.

At the Washington, Los Angeles, and Baltimore divisions, we discussed

with the Firearms Instructor Coordinators the training they provided and

also reviewed their records, including quarterly firearms training

documentation, to determine if the use-of-force policies were discussed at

all quarterly firearms training in fiscal year 1995. Our review of ATF agent

firearms qualification records for the Washington Division showed that at

each quarterly session the division’s coordinator had certified on the

records to reviewing ATF’s firearms policy.

In Los Angeles, the division’s former Firearms Instructor Coordinator said

that he reviewed the policy at each quarterly qualification session during

fiscal year 1995 and had every agent sign their qualification records to

attest that they understood the policy. However, Los Angeles’ new

coordinator for 1996, said that instead of having agents’ attest that they

understood the policy, he would meet the policy requirement by certifying

5

Exceptions to the qualification requirement can be permitted by the SAC due to medical or leave

reasons or where operational duties do not permit (e.g., agents who are working in certain undercover

capacities or agents who are required to be in court when the qualifications take place).

Page 44 GAO/GGD-96-17 ATF Use of Force
Chapter 3 

ATF, DEA, and FBI Convey Deadly Force

Policies to Their Agents in Similar Ways

on the agents’ qualification record that the use-of-force policy had been

reviewed.

At the Baltimore Division, the Firearms Instructor Coordinator had

instituted, on his own initiative, a new computerized firearms qualification

record form for each division agent. The computerized document did not

show whether the firearms policy had been discussed. When asked about

whether the policy had been discussed at each session, the coordinator

said that he had discussed it and that, henceforth, he intended to certify to

doing so in his written records. Furthermore, documentation at each of

these offices showed that the firearms policy had been discussed at

qualification sessions going back to at least the early 1990s.

DEA and FBI officials confirmed that deadly force policies are to be

reiterated at their quarterly firearms qualifications.

Disseminating the

Revised Treasury

Use-of-Force Policy

In October 1995, shortly after Treasury revised its use-of-force policy to

make it uniform among its components and with the Justice policy, ATF

sent the revised policy to all of its field divisions. In his cover letter

transmitting the revised policy, ATF’s Associate Director for Enforcement

pointed out that the policy sets forth uniform standards for the use of

deadly force and provides broad guidelines for all Treasury enforcement

agencies. Moreover, he emphasized that the uniform policy was effective

immediately and that it was the responsibility of each supervisor to ensure

that all special agents under their supervision receive a copy of the policy.

The letter also stipulated that the policy should be addressed at the next

quarterly firearms qualification.

Agents we spoke with in the Washington, Los Angeles, and Baltimore

divisions all confirmed that supervising agents discussed the revised

Treasury use-of-force policy with agents under their supervision. And, as

noted above, we observed the Los Angeles Division’s quarterly firearms

qualification in which the Firearms Instructor Coordinator discussed the

new policy.

Conclusions ATF conveys its deadly force policies to new agents through training.

Use-of-force and deadly force training provided new ATF agents reflected

Treasury/ATF policies. The types of training new ATF agents receive were

consistent with the training provided DEA and FBI new agents.

Furthermore, ATF policy requires that the use-of-force and deadly force

Page 45 GAO/GGD-96-17 ATF Use of Force
Chapter 3 

ATF, DEA, and FBI Convey Deadly Force

Policies to Their Agents in Similar Ways

policies be reiterated to agents throughout their careers during quarterly

firearms qualifications and tactical operations briefings. According to DEA

and FBI officials, their use-of-force policies are also to be reiterated during

firearms qualification.

Page 46 GAO/GGD-96-17 ATF Use of Force
Chapter 4 

ATF, DEA, and FBI Often Use Dynamic

Entries and Comparable Equipment to

Execute High-Risk Warrants

Dynamic entry has been a principal tactical procedure ATF has used to gain

entry to premises when executing search and arrest warrants in high-risk

operations. ATF believes dynamic entry is a useful tactic that can reduce

the potential for injury to both agents and suspects in particular situations.

However, on the basis of Treasury’s report on the Waco operation1

 and

views of tactical operations experts and ATF’s own personnel, ATF decided

in October 1995 that dynamic entry would only be planned after all other

options have been considered and began to adjust its training accordingly.

Similarly, according to DEA and FBI Washington Division officials, their

agencies use dynamic entry when necessary to execute high-risk warrants

and believe the tactic promotes safety.

ATF, DEA, and FBI use generally comparable weaponry and equipment to

effect dynamic entries. The exceptions are noted in this chapter. In

addition, all three agencies have aircraft that can be used for intelligence

and surveillance operations, such as obtaining aerial photography, and

their specialized teams generally have similar vehicles, such as sports

utility vehicles, from which they can deploy and in which they store

equipment. The clothing and additional gear worn by agents of all three

agencies when executing warrants are designed to promote agent safety.

Dynamic Entry Is a

Principal Tactic Used

by ATF During

High-Risk Search and

Arrest Warrant

Operations

Dynamic entry is one of several tactical procedures used by ATF to gain

entry to premises to execute search and arrest warrants. Dynamic entry,

which may involve a forced entry, relies on speed and surprise and often is

used during high-risk operations, such as ones where suspects pose a

threat of violence, or where evidence can be easily destroyed. Both ATF’s

case agents and SRTs are to be trained in the dynamic entry technique.

However, ATF did not compile any statistics regarding the number of times

various tactics, such as a dynamic entry, were used during enforcement

operations, according to ATF officials. Due to time constraints, we did not

review a sample of all ATF enforcement operations to determine how often

various tactics were used. However, we discussed the use of dynamic

entries with ATF headquarters and division officials who all agreed that

dynamic entry was the principal tactic used by ATF agents during high-risk

search and arrest warrant operations.

Furthermore, as agreed with the Subcommittee, since SRTs are to be

deployed to conduct ATF’s higher risk search and arrest warrants and have

access to all of the equipment available to ATF agents as well as additional

1

Report of the Department of the Treasury on the Bureau of Alcohol, Tobacco, and Firearms

Investigation of Vernon Wayne Howell also known as David Koresh, September 1993.

Page 47 GAO/GGD-96-17 ATF Use of Force
Chapter 4 

ATF, DEA, and FBI Often Use Dynamic

Entries and Comparable Equipment to

Execute High-Risk Warrants

specialized equipment, we primarily focused our review of ATF’s use of

dynamic entry and related equipment on operations involving SRT

deployments. Our review of SRT deployments for fiscal year 1995 found

that the dynamic entry technique was used almost half of the time and was

the predominant technique used when an entry to a premise was required.

Moreover, during the period we reviewed, when the dynamic entry

technique was used, no SRT member fired a weapon at a suspect.

Executing High-Risk

Search and Arrest

Warrants Was the Primary

Purpose of SRT

Deployments

ATF has established an SRT in each of its 24 criminal enforcement field

divisions2

 to conduct high-risk operations. These situations include

high-risk arrest, search, and undercover operations. SRT membership is

voluntary and a part-time duty and ranges from 11 to 20 ATF agents

depending on the location of the team.

ATF defines high-risk situations, in which activation of the SRT should be

considered, as those in which an increased propensity for violence exists

based on the nature of the subject, the monetary value of the transaction,

or the underlying circumstances of the situation. Some of the factors to be

used to determine whether the SRT should be deployed include the

suspect’s criminal history and propensity for armed violence, the weapons

expected at the location, and the fortification of the buildings involved.

SRTs are to be deployed at the discretion of the SAC of the division to

ensure the safety of ATF agents, other law enforcement officers, and the

public during high-risk operations. As seen in table 4.1, SRTs were most

often deployed to execute search and/or arrest warrants.

2

In fiscal year 1996, ATF plans to restructure the SRTs to more effectively use its resources from 24

divisional teams to 5 regional teams consisting of about 40 agents each. Each regional team is

expected to consist of several squads of about seven agents located geographically throughout its

region. The teams are expected to obtain more multifunctional training, in areas such as surveillance,

as well as continue to receive tactical training (e.g., entry techniques).

Page 48 GAO/GGD-96-17 ATF Use of Force
Chapter 4 

ATF, DEA, and FBI Often Use Dynamic

Entries and Comparable Equipment to

Execute High-Risk Warrants

Table 4.1: SRT Deployments, FYs

1993-1995 FY 1993 FY 1994 FY 1995 Reason for

deployment Number Percent Number Percent Number Percent

Search warrant 150 69 97 66 68 43

Arrest warrant 21 10 13 9 23 15

Both search and

arrest warrants

(at same time) 25 12 22 15 38 24

Other

(undercover

operations, etc.) 22 10 16 11 28 18

Total 218 100a 148 100a 157 100a

aDoes not add to 100 percent due to rounding.

Source: ATF for fiscal years 1993-1994. GAO analysis of SRT After Action Reports for fiscal year

1995.

Dynamic Entries and Other

Tactics Used to Promote

Safety

According to ATF, DEA, and FBI officials as well as training literature

prepared by IACP and local law enforcement agencies, dynamic entry is a

principal tactic available to law enforcement agencies for use during

high-risk enforcement operations. According to these officials, the primary

purpose for using dynamic entry is to ensure the safety of law enforcement

personnel as well as suspects and other individuals during a high-risk

operation. In addition, dynamic entries may be a preferred tactic when the

possibility exists that evidence may be destroyed.

Furthermore, these officials as well as other law enforcement officials

agree that two characteristics of dynamic entry are speed and surprise.

Various law enforcement articles as well as ATF, DEA, and FBI officials

assert that law enforcement studies show reaction time to be slower than

action time—it takes longer for individuals to respond to a threat than to

make a threat. Thus, through the use of dynamic entries in certain

high-risk situations, law enforcement agents hope to act so quickly that the

suspects do not have time to respond or, at a minimum, give agents the

advantage by forcing suspects to react to agent actions rather than the

reverse. While dynamic entries may require a forcible entry, such as

breaking down a door, dynamic entries can also be accomplished through

open or unlocked doors.

Dynamic entry is only one of several tactical techniques ATF agents can use

to execute search and arrest warrants or conduct other enforcement

operations. Additional techniques include

Page 49 GAO/GGD-96-17 ATF Use of Force
Chapter 4 

ATF, DEA, and FBI Often Use Dynamic

Entries and Comparable Equipment to

Execute High-Risk Warrants

• “stealth” or “static” entries, which involve slow, methodical entry and

movement in a premise during which each area or room is cleared of

danger before proceeding (e.g., when a suspect opens the door in response

to the knock and announcement, agents may arrest or detain the suspect

and then slowly clear the remainder of the premise of danger before

proceeding with a search);

• containment call-outs, which are situations where agents surround a

location and, from covered positions, contact the suspect and order the

person to exit the premise;

• ruses, such as when agents create a ploy to draw the person out of their

premise before making an entry or arresting them; and

• arresting or detaining the suspect away from the location (e.g., vehicle

stops) before making an entry or, in the case of an arrest, to avoid having

to make an entry.

Whether an entry is required after using certain tactics, such as

containment call-outs or ruses, would depend on the purpose of the

operation. If a search warrant needs to be executed, even after arresting or

detaining the suspect outside of the premise, an entry may still need to be

made. According to ATF agents and our review of SRT deployment reports

for fiscal year 1995, agents often conducted a stealth or static entry, rather

than a dynamic entry, after detaining or arresting the primary suspect.

According to ATF, DEA, and FBI officials, flexibility in tactical operations is

important. Thus, agents may use a combination of these tactics or change

tactics during an operation, as necessary. For example, ATF training

materials and officials stressed that even after a decision is made to use a

dynamic entry, a situation can emerge in the middle of an operation that

dictates a change in tactics. Accordingly, during one SRT deployment in

fiscal year 1995, agents planned to conduct a dynamic entry to execute

arrest and search warrants. However, after the SRT’s arrival at the primary

suspect’s home, the suspect was located in the backyard and detained

before the SRT entered the premise. The agents then used a stealth entry to

execute the search warrant. (App. III provides detailed examples of actual

SRT operations in which these various tactics were used.)

According to ATF, DEA, and FBI officials, the decision regarding whether to

use dynamic entry or another technique is dictated by the unique

circumstances presented in each operation, with safety as the primary

objective. ATF, DEA, and FBI officials agreed that factors, such as the

suspect’s criminal history and violent tendencies, the location of the

premise, and the amount of fortification expected, are to be considered

Page 50 GAO/GGD-96-17 ATF Use of Force
Chapter 4 

ATF, DEA, and FBI Often Use Dynamic

Entries and Comparable Equipment to

Execute High-Risk Warrants

when determining whether dynamic entry or another tactic should be

used.

In 1994, ATF developed and began requiring an Operational Risk

Assessment form to be completed by agents when planning an operation.3

This document is designed to identify critical elements that can affect

high-risk tactical operations. The assessment is divided into four

categories, including the type of enforcement activity, the suspect’s

criminal history, the weapons possessed by the suspect, and the suspect’s

location. According to ATF agents, factors, such as the suspect’s violent

tendencies, the location of the premise, and the amount of fortification

expected, also are considered. The factors developed in the assessment

are assigned point values and are totaled to determine the amount of risk

believed to be present in the operation. Depending on the amount of risk

present, a decision is made whether to use the SRT to accomplish the

operation. Above a certain point total, deployment of the SRT is highly

recommended. Below that point total, deployment is to be considered but

is optional.

The information gathered for the risk assessment represents critical

intelligence information needed by ATF agents to develop an operational

plan (discussed below). According to one SRT leader, one specific factor, if

present, would not dictate the use of a particular tactic. Instead, he said

agents consider the totality of the factors in a situation when developing

the operational plan. For example, because a person is expected to be

armed and has a history of violence, does not result in the SRT employing

the same tactic in each case. Other factors also present are considered in

conjunction with what is known about the suspect—possibly leading

agents to chose different tactics in each case. Thus, according to the SRT

leader, agents must consider all factors and determine the most

appropriate tactic for each operation. For example, agents have to

consider whether a prolonged containment call-out could result in needed

evidence being destroyed; whether the surrounding neighborhood would

have to be evacuated; or, if the location is in certain high-crime

neighborhoods, whether a call-out would create a more dangerous

situation (e.g., sniping or a riot).

In January 1995, ATF began requiring agents to complete a standard written

planning document for enforcement operations called an operational plan.

According to ATF documents, ATF instituted this change due to the increase

3

Some divisions were using similar risk assessment forms before being directed to do so by the

Tactical Response Branch.

Page 51 GAO/GGD-96-17 ATF Use of Force
Chapter 4 

ATF, DEA, and FBI Often Use Dynamic

Entries and Comparable Equipment to

Execute High-Risk Warrants

in violence ATF agents encountered during the execution of search and

arrest warrants and undercover operations. An operational plan is

required before executing any search or arrest warrants or conducting

certain undercover operations.4

 The plan is to specify the tactics and

personnel to be used during the operation. According to ATF policy, the

agent(s) responsible for the planning portion of the operation prepares the

plan, and the group supervisor or Resident Agent-in-Charge (RAC) reviews

and approves it. According to division officials, in operations involving the

SRT, the SRT team leader and/or other SRT members are to develop the plan,

which is then to be reviewed and approved by the assistant SAC

responsible for supervising the SRT.

5

 Copies of the approved plans are to

be sent to the SAC of the division.

Since the decision to use a dynamic entry or other technique requires

consideration of the unique factors present in each situation, ATF has not

had any specific policies regarding the use of dynamic entry. However, as

a result of Treasury’s review of the Waco operation and the views of

tactical operations experts and ATF’s own personnel, ATF decided in

October 1995 to implement lessons learned from Waco. One change ATF

decided to make was that dynamic entry would only be planned after all

other options had been considered. Given the choice, it was decided that

the first tactical option to be considered during operational planning

would be a ruse—luring the suspect out. It was believed that luring the

suspect out would reduce the risks to the public and agents and ensure a

safe, peaceful resolution to the situation.

Regardless of whether dynamic entry or another technique is used, ATF

agents are required to follow Treasury’s use-of-force policy as discussed in

chapter 2. Also, ATF agents generally are required by law to knock and

announce their identity and purpose before executing search and arrest

warrants. Courts, nevertheless, have permitted unannounced entries in

certain exigent circumstances. Several agents stated that knocking and

announcing also helps to protect their safety—through identifying

themselves and their purpose they sometimes can prevent a situation in

which the suspect might react without knowing that they are law

enforcement officers.

4

Previously, ATF agents were required to complete a written plan for search warrant operations.

However, there was no standard planning requirement throughout ATF for all enforcement operations,

such as arrest warrants and undercover operations. Also, previous ATF guidance permitted plans to be

in outline form.

5

The only exception to mandatory completion of the operational plan is on SRT activations in which

the SRT leader chooses to complete a five-paragraph order. According to ATF officials, a

five-paragraph order is a type of operational planning document that is commonly used by special

weapons and tactics teams and contains all of the information required in ATF’s operational plan.

Page 52 GAO/GGD-96-17 ATF Use of Force
Chapter 4 

ATF, DEA, and FBI Often Use Dynamic

Entries and Comparable Equipment to

Execute High-Risk Warrants

ATF Agents and SRTs Are

to Be Trained in Dynamic

Entry and Other Tactics

ATF training is to emphasize that no one tactic is an absolute and that a

number of factors, beyond the agents’ control, will influence whether a

dynamic entry or other technique is best. During New Agent Training, ATF

agents are to be taught to differentiate between situations that require a

dynamic or stealth/static entry. Agents are to be taught to consider various

factors—such as the characteristics of the suspect, location, and weapons

expected—when determining the best tactics to employ during an

operation. Agents are to participate in simulation exercises during which

they are required to determine and use the appropriate tactics to gain

control of situations. ATF course materials emphasize resolving these

exercises by using tactics involving speed, surprise, and, if necessary,

violence without employing deadly force. During our visit to the ATF

National Academy, we were able to confirm through observation that a

class of new agents were trained on dynamic entries through practical

exercises.

Agents assigned to SRTs are to receive additional training in tactics,

including dynamic entries, during their 2 weeks of SRT basic training at

Fort McClellan. Among the more than 20 course topics to be presented are

tactical shooting, hostage situations, vehicle assaults, felony vehicle stops,

and tactics. Over half of the instruction time allotted during this training is

to cover tactics that include team entry and movement techniques during

high-risk operations. However, according to an October 1995 ATF report,

the basic SRT course curriculum has been revised to include instruction on

some of the techniques needed to conduct containment call-out

operations. This change was initiated by ATF, on the basis of lessons

learned from Waco, to address situations in which there was no evidence

in the suspect’s premise that could be easily destroyed. The new basic SRT

training also is to emphasize that dynamic entries are to be planned only

after all other tactical options have been considered.

SRTs also are to continue to train on these skills at regularly scheduled

in-service sessions. SRTs are required to receive a minimum of 8 hours

training each month, or 24 hours each quarter, in addition to the quarterly

firearms training to be received by all ATF agents. This continuing training

must be provided by qualified sources, which includes other law

enforcement agencies.

We reviewed SRT quarterly in-service training records for fiscal year 1995

and determined that all 24 SRTs conducted training on entry techniques,

such as dynamic and/or stealth/static entries, including practical exercises

frequently using simunitions or live fire rounds. However, we did not

Page 53 GAO/GGD-96-17 ATF Use of Force
Chapter 4 

ATF, DEA, and FBI Often Use Dynamic

Entries and Comparable Equipment to

Execute High-Risk Warrants

confirm whether all SRT members attended all training sessions. Our

review also showed that most of the training was conducted by ATF

instructors. The most common non-ATF source of training was state and

local law enforcement agencies. For example, we observed the

Washington Division’s SRT training for the fourth quarter of 1995. Two days

of this training was conducted by representatives of the Los Angeles

County Sheriff’s Department’s Special Enforcement Branch—the SWAT

team—and primarily consisted of instruction and practical exercises on

stealth entry techniques. In 10 instances, Department of Defense or

National Guard units provided some training to SRTs but generally not

regarding entry tactics. ATF forward observers6

 received most of the

training provided by Department of Defense or National Guard units,

covering subjects such as winter survival and surveillance techniques.

Furthermore, our review showed that some SRTs’ quarterly training

exceeded the minimum hourly requirements, such as training conducted

by the Los Angeles and Washington divisions’ SRTs.

ATF Most Often Used

Dynamic Entry Tactic in

High-Risk Search and

Arrest Warrant Services

According to ATF division and headquarters officials, dynamic entry has

been the primary technique used by both SRTs and non-SRT agents to gain

entry to premises when executing high-risk search and arrest warrants. We

reviewed reports of each of the total 157 SRT deployments during fiscal

year 1995. During these deployments, about 185 suspects were arrested.

As seen in figure 4.1, SRTs used the dynamic entry technique almost half

the time during these deployments, and it was the predominant tactic used

when an entry to a premise was made. However, none of the 77

deployments in 1995 in which SRTs used dynamic entries resulted in ATF

agents’ firing their weapons at suspects, according to the deployment

reports. During only one SRT deployment, involving a “buy/bust”

undercover operation in an open area where no entry was required, did

ATF agents fire their weapons at suspects. During this incident, three

suspects were wounded.

6

ATF forward observers support SRT operations by providing up-to-date intelligence and by ensuring

the safety of participating enforcement personnel. Their initial training at Fort McClellan emphasizes

weapons selection, marksmanship, and observation techniques.

Page 54 GAO/GGD-96-17 ATF Use of Force
Chapter 4 

ATF, DEA, and FBI Often Use Dynamic

Entries and Comparable Equipment to

Execute High-Risk Warrants

Figure 4.1: Primary Entry Tactic Used

During SRT Deployments in FY 1995

49% • Dynamic (77)

19%•

Stealth/Static (29)b

•33%

No entry made (51)a

Note: Does not add to 100 percent due to rounding.

aIncludes situations such as undercover operations in open areas, vehicle stops, and arrests

following containment call-outs or ruses in which search warrants were not executed.

bIncludes situations such as entering a premise to execute a search warrant after detaining or

arresting a suspect via a vehicle stop, containment call-out, or ruse.

Source: GAO analysis of fiscal year 1995 SRT After Action Reports.

Furthermore, from fiscal years 1993 through 1995, ATF conducted 35,949

investigations, arrested 22,894 suspects, and deployed SRTs 523 times.

During this same period, as seen in table 4.2, SRT members were involved

in 3 intentional7

 shooting incidents, one of which resulted in fatalities.

Table 4.2: SRT Intentional Shooting

Incidents, FYs 1993-1995 FY 1993 FY 1994 FY 1995

SRT intentional shooting incidents 1a 1 1

aThe Waco operation.

Source: GAO analysis of ATF Shooting Incident Reports, fiscal years 1993 through 1995.

7

ATF defines intentional as the discharge of a firearm by a law enforcement officer directed at a

suspect in response to a perceived threat of death or serious bodily injury to the officer or an innocent

person.

Page 55 GAO/GGD-96-17 ATF Use of Force
Chapter 4 

ATF, DEA, and FBI Often Use Dynamic

Entries and Comparable Equipment to

Execute High-Risk Warrants

According to several ATF agents, one reason they used dynamic entries so

frequently was the type of suspects they generally encountered. According

to these agents, with most of their enforcement investigations involving

firearms, ATF suspects frequently had previous convictions, were known to

have committed or are suspected of past violent acts, and were believed to

be armed. According to ATF reports of its firearms enforcement

investigations from fiscal years 1990 to 1995, 46 percent of the suspects

ATF arrested had previous felony convictions, 24 percent had a history of

violence, and 18 percent were armed at the time of their arrests.8

According to one SRT leader, ATF encounters basically three types of

suspects, those (1) who do not attempt, or even consider, doing anything

other than following agents’ instructions; (2) who will attempt to flee or

provoke an incident if they are given an opportunity or perceive any

weaknesses on the part of the agents; and (3) who are willing to do

whatever it takes not to be taken into custody. Thus, according to the SRT

leader, ATF agents try to prevent incidents from occurring through

following proper procedures and eliminating opportunities for suspects to

provoke incidents. However, he also said that agents must always plan and

be prepared for the worst, so training is very important.

FBI and DEA Also Use

Dynamic Entries for

High-Risk Search and

Arrest Warrants

FBI and DEA officials said they also use dynamic entry as the primary tactic

when entry to premises is required to execute high-risk search and arrest

warrants. According to FBI and DEA officials, ensuring agent, suspect, and

the public’s safety is the predominant reason they would choose to use

dynamic entry versus another tactic. FBI and DEA officials agreed with ATF

that the decision to use a dynamic entry or another technique is dictated

by the unique circumstances presented in each operation and that factors

such as the suspect’s criminal history and violent tendencies, the location

of the premise, and the amount of fortification expected are considered.

FBI has SWAT units in each of its field divisions that, like SRTs, generally are

deployed for high-risk operations primarily involving search and arrest

warrants. According to the FBI Washington Division’s SWAT team leader,

dynamic entry is the predominant technique used by the SWAT team as well

as non-SWAT agents to gain entry to a premise during a high-risk search and

arrest warrant operation. According to the SWAT team leader, although FBI

special agents and/or the SWAT team will move rapidly to enter and secure

the immediate entry area, they generally will de-escalate the speed and

move more slowly through the rest of a premise. According to division

8

ATF did not compile data for suspects armed at arrest for fiscal years 1990 and 1991.

Page 56 GAO/GGD-96-17 ATF Use of Force
Chapter 4 

ATF, DEA, and FBI Often Use Dynamic

Entries and Comparable Equipment to

Execute High-Risk Warrants

officials, the Washington Division’s use of dynamic entry generally is

representative of other FBI field divisions.

DEA has established a High Risk Entry and Arrest Team (HEAT) in its

Washington, D.C., Division that, like SRTs, is deployed for high-risk

operations primarily involving search and arrest warrants. According to

Washington Division officials, the principal difference between HEAT and

other DEA agents who conduct operations is that HEAT agents train more

frequently as a unit and, thus, are better coordinated tactically. According

to the DEA Washington Division’s HEAT leader, dynamic entries represent

the predominant tactic used by both DEA agents and the HEAT team to gain

entry to a premise during high-risk search and arrest warrants.

DEA and FBI agents as well as their respective SWAT and HEAT teams are to

receive training on the use of dynamic entries and other tactics during

initial training. Also, according to Washington Division officials, SWAT and

HEAT teams, like SRTs, train as a unit on a monthly basis in areas such as

tactics and firearms.

Equipment ATF Used

in Dynamic Entries Is

Generally Comparable

to DEA’s and FBI’s

The equipment ATF agents used during dynamic entries generally included

weaponry; breaching equipment, such as battering rams; and/or other

tactical equipment designed for safety, such as body bunkers, ballistic

vests, and helmets. In addition to the equipment available to all agents,

SRTs have access to additional firearms, such as bolt-action and automatic

rifles, and specialized tactical equipment, such as diversionary devices. SRT

vehicles generally include vans and trucks from which SRT teams can

deploy and in which they store equipment. The equipment, vehicles,

aircraft, and clothing used by ATF generally are comparable to that used by

FBI and DEA during similar operations except where noted.

ATF Used Weapons,

Breaching Equipment,

And/Or Other Tactical

Equipment During

Dynamic Entries

ATF weaponry available for use during dynamic entries includes any of the

agency’s authorized firearms and less-than-lethal weapons, which include

oleoresin capsicum (OC or pepper) spray9

 and expandable tactical batons.

According to ATF policy, agents are to be assigned a 9mm semi-automatic10

pistol as their primary duty weapon, and, if requested, a revolver as a

9

An inflammatory agent that may cause an intense burning sensation and an almost immediate swelling

of the eyes and breathing passages. Physical effects may include involuntary closing of the eyes,

coughing, choking, lack of upper-body strength and coordination, and nausea.

10A semi-automatic firearm is defined as one that ejects empty cartridge cases after the first shot and

loads the next cartridge from the magazine but requires release and another pressure of the trigger for

each successive shot.

Page 57 GAO/GGD-96-17 ATF Use of Force
Chapter 4 

ATF, DEA, and FBI Often Use Dynamic

Entries and Comparable Equipment to

Execute High-Risk Warrants

backup weapon. Divisional offices or agents also are to be issued

shotguns, semi-automatic rifles (e.g., Colt AR15s), and tactical carbines11

(e.g., Heckler and Koch MP5s), which agents may use during various

enforcement operations, including search and arrest warrants. Some MP5s

are equipped with a selector switch that, when activated, permits the

weapon to fire two rounds with a single depression of the trigger and

qualifies them as automatic weapons. According to ATF officials, only SRT

agents are allowed to use automatic MP5s. Also, forward observers on

SRTs are to be issued bolt-action rifles and AR15s, which can be used to

provide additional cover for agents during warrant services.

During our review of division training, we observed ATF agents qualifying

with the 9mm pistols, revolvers, shotguns, AR15s, and MP5s at quarterly

qualification sessions. Also, we observed the Washington and the

Baltimore divisions’ in-service SRT training sessions in which they used the

9mm pistols, shotguns, and MP5s. The only weapon we did not observe

during these training sessions was the bolt-action rifle issued to forward

observers because the forward observers did not qualify with this weapon

on the days that we attended. However, the Washington Division forward

observer stated that he has taken the bolt-action rifle on SRT activations to

provide cover for agents during operations.

We obtained and reviewed listings of the firearms issued to agents and/or

the division for use during dynamic entries from the Washington and Los

Angeles divisions and determined that they included 9mm pistols,

shotguns, AR15s, and MP5s as indicated by ATF policy. Furthermore, we

reviewed listings from ATF’s Inventory Tracking and Equipment

Management System of the rifles and tactical carbines issued to agents

and/or divisions throughout ATF and determined that the types of weapons

included AR15s, MP5s, and bolt-action rifles as indicated by ATF policy. In

addition, these inventories showed that some divisions were credited with

having obtained or seized certain automatic weapons, such as M16s, for

agent use. When asked about these automatic weapons in the inventory

listings, the Chief of ATF’s Special Operations Division said that ATF had

acquired some M16s from the Department of Defense and converted them

to semi-automatic rifles (e.g., AR15s) for use by agents. In addition, we

spoke with the Chief of the Firearms and Technology Branch who

confirmed that the M16s ATF had acquired for use by agents had been

converted to semi-automatic rifles. Both these officials noted that some of

the other automatic weapons in the inventory lists were incorrectly coded

11A modern repeating rifle that is shorter and lighter than the standard rifle and fires lighter

ammunition.

Page 58 GAO/GGD-96-17 ATF Use of Force
Chapter 4 

ATF, DEA, and FBI Often Use Dynamic

Entries and Comparable Equipment to

Execute High-Risk Warrants

as available for agent use when in actuality they were used only as display

or prop weapons—usually seized weapons that are then used as show

weapons during undercover operations. We contacted Baltimore and

Washington division officials who also confirmed that the automatic

weapons shown on the inventory listing for their divisions had either been

converted to semi-automatic rifles or were being used only as prop

weapons. Each of these officials stressed that the only automatic weapon

used by ATF is the two-shot burst MP5, which is limited to use only by

trained SRT members.

ATF agents also can use various breaching equipment during dynamic

entries to gain entry through doors and windows during search and arrest

warrant operations when there is no response to the ATF agents’ knock and

announcement, particularly at locations where the entrances have been

reinforced or fortified to deter entry. ATF breaching equipment includes

items such as one- and two-person battering rams, hydraulic door

spreaders, pry bars, and other firemen’s entry tools. Shotgun and explosive

breaching has not been authorized by ATF. Agents also can use body

bunkers, which are ballistic shields with clear viewports, during dynamic

entries. These bunkers are capable of withstanding direct shots fired from

various firearms and provide additional protection to agents as they enter

and search premises. During our visit to the ATF National Academy, we

observed agents making dynamic entries into buildings using body

bunkers. Moreover, during our division reviews, agents demonstrated

and/or provided examples of how this equipment has been used during

dynamic entries.

SRTs have access to the weapons and equipment available to all ATF agents

as well as some specialized equipment, including flash/sound diversionary

devices (commonly called flash/bangs),12 rappelling equipment, and night

vision goggles. On the basis of our review of reports of all SRT deployments

and in-service training sessions in fiscal year 1995 as well as course

materials from the initial training received by SRT members at Fort

McClellan, we determined that flash/sound diversionary devices

represented the specialized equipment SRTs most frequently trained with

and used during deployments. According to agents, flash/sound

diversionary devices are used to disorient and confuse individuals to more

safely obtain their compliance and detainment during enforcement

operations. Factors such as the presence of children or elderly individuals

12A flash/sound diversionary device is a device that generates a loud noise and a blinding light upon

detonation that can be used for a tactical diversion as well as to confuse suspects within a location.

Training is essential in their use because they are capable of causing injury and fire if not properly

deployed.

Page 59 GAO/GGD-96-17 ATF Use of Force
Chapter 4 

ATF, DEA, and FBI Often Use Dynamic

Entries and Comparable Equipment to

Execute High-Risk Warrants

are to be considered before the use of these devices, according to agents

and SRT training materials. According to agents and several SRT deployment

reports, these devices greatly assisted SRTs in subduing suspects,

controlling situations, and avoiding shooting incidents.

Although SRT members conducted training on rapelling from buildings and

aircraft at their initial training and/or fiscal year 1995 in-service training

sessions, this tactic was not used during any deployments in 1995,

according to the ATF records we reviewed. In addition, our review of fiscal

year 1995 SRT deployment reports and several operational plans showed

that SRTs used the weapons discussed earlier as well as body bunkers and

various breaching tools during dynamic entries.

Depending on the unique circumstances present during an operation, SRT

agents may be authorized to use any or all of the equipment during a

dynamic entry. The following scenario represents an example of how this

equipment has been used by both ATF SRTs and non-SRT agents during

dynamic entries. An ATF agent knocks and announces ATF’s identity and

purpose. If there is no response after a reasonable period and the door is

locked or fortified, one or two agents breach the door using a ram or other

tool to gain entry to the premise. Teams carrying body bunkers then

quickly enter and search the premise to locate suspects and clear the

premise of any danger. A bunker team generally consists of two or three

agents—one agent carrying the bunker and holding a 9mm pistol on one

side, another agent following closely and holding a 9mm pistol on the

opposite side of the bunker, and the last agent following closely and

carrying a MP5. Additional agents follow the bunker team and handcuff or

detain suspects as they are located, and agents located outside the premise

provide rear and front security.

SRTs Use Vehicles and

Aircraft for Deployment

and Surveillance

The Enforcement Support Branch of ATF’s Special Operations Division

provides vehicles to ATF divisions for use in enforcement operations.

According to ATF officials, they have not provided any armored vehicles to

ATF field divisions. The vehicles provided generally include sedans, vans,

and trucks. SRTs may have designated vehicles from which they can deploy

during high-risk operations and in which they maintain their equipment.

On the basis of vehicle listings from ATF’s Inventory Tracking and

Equipment Management System and our review of all SRT deployments in

1995, vehicles such as large delivery trucks, excess military ambulances,

vans, and utility trucks have been obtained or donated to ATF for use by

SRTs. Furthermore, our review of the 1995 SRT deployment reports showed

Page 60 GAO/GGD-96-17 ATF Use of Force
Chapter 4 

ATF, DEA, and FBI Often Use Dynamic

Entries and Comparable Equipment to

Execute High-Risk Warrants

that SRTs had used these trucks and vans during actual operations. The

only armored vehicles used by the SRTs identified through our review of

the inventory listings and 1995 SRT deployment reports included: (1) a

truck donated to the Los Angeles SRT by a private company that is engaged

in the security and transfer of money and negotiable instruments and (2) a

Dallas Police Department vehicle borrowed by the Dallas SRT on two

occasions for search warrant operations in fiscal year 1995.

We observed the Washington, Baltimore, and Los Angeles divisions’ SRT

vehicles, which are used to store equipment and from which the SRTs had

deployed during operations. The Washington Division’s SRT vehicles

included a van and large delivery truck, similar to those used by bread or

package delivery companies, in which they had installed benches along

each side and storage units for equipment. A similar large delivery truck

was donated to the Baltimore Division’s SRT and used for its operations. In

addition to the armored truck, the Los Angeles Division’s SRT vehicles

included two large sports utility vehicles. All of the Los Angeles Division’s

SRT vehicles we observed had public address and siren systems installed.

The Los Angeles Division’s SRT also reported having a large delivery truck

and van, which we were unable to observe, due to time constraints and

their remote location.

ATF obtained five excess military armored “peacekeeper” vehicles from the

U.S. Air Force in 1993 to test for possible tactical use, such as to protect

agents from additional danger while they extract a wounded agent from a

hostile situation. One of these vehicles was sent to the SRT training facility

at Fort McClellan, and the rest remained at the Enforcement Support

Branch in Rockville. According to Enforcement Support Branch officials,

none of these vehicles was ever assigned to a division or used for

enforcement operations. ATF decided not to keep these vehicles or obtain

others for enforcement operations. At the time of our review, ATF had

provided four of these vehicles to local law enforcement agencies. The

remaining vehicle at Fort McClellan was awaiting disposal. Our

examination of vehicle listings from ATF’s Inventory Tracking and

Equipment Management System confirmed that none of the peacekeeper

vehicles was assigned to field divisions at the time of our review.

As of February 1996, ATF had obtained nine excess military fixed-wing twin

engine two-seater aircraft for use in enforcement operations. Seven of

these airplanes were strategically located within the United States and had

been equipped with an advanced thermal imaging system that can be used

for surveillance during low visibility conditions. According to ATF’s Chief

Page 61 GAO/GGD-96-17 ATF Use of Force
Chapter 4 

ATF, DEA, and FBI Often Use Dynamic

Entries and Comparable Equipment to

Execute High-Risk Warrants

Pilot, the remaining two airplanes were in storage. According to ATF policy,

the airplanes primarily are intended for use during surveillance operations,

such as aerial photography and general area surveys. According to the

Chief of the Special Operations Division, these aircraft and/or previously

leased fixed-wing aircraft have been used between 200 and 300 times a

year in the past 4 years. In addition, ATF may obtain assistance from other

agencies, such as the U.S. Customs Service, Department of Defense, and

local law enforcement units, in conducting surveillance operations and

transporting agents via aircraft. However, according to ATF policy, ATF

agents must obtain approval from ATF’s Chief Pilot in the Air Operations

Branch of the Special Operations Division before using any non-ATF

aircraft.

On the basis of the records we reviewed, in only one instance did an SRT

use aircraft to transport agents during an operation in fiscal year 1995. In

this operation, the SRT was deployed to provide surveillance and possible

assistance in the arrest of a suspect in the Oklahoma City bombing

investigation and was transported to the desert by the U.S. Customs

Service’s and a local Sheriff department’s helicopters. Aircraft were more

frequently used by SRTs for assistance in operational planning efforts. For

example, we observed aerial surveillance photographs of locations at

which the Los Angeles Division’s SRT conducted several of its activations

in fiscal year 1995. We were told that these photographs were used during

operational planning.

ATF Clothing Used for

Agent Safety

ATF agents’ basic duty uniform for enforcement operations consists of a

dark-blue jacket with matching teeshirt, pants, baseball cap, and ballistic

vest. The uniform has yellow lettering in numerous places indicating “ATF,”

“AGENT,” “POLICE,” and/or the ATF shield. The uniform also includes a

black pistol belt, black nylon holster, and magazine pouch. Agents are not

issued footwear, but may obtain tactical boots for which they are to be

reimbursed by ATF. Also, according to ATF officials, almost all agents are

issued a U.S. Army excess tactical helmet—painted black—with a

detachable, clear plexiglass shield for eye protection. The purpose of the

tactical helmets is to provide additional safety for the agents’ heads during

high-risk operations.13 The clear shield provides no ballistic protection, but

is intended to provide protection from flying debris.

13According to Enforcement Support Branch officials, ATF has documented three confirmed situations

during which the tactical helmet protected ATF agents from receiving shots to their head.

Page 62 GAO/GGD-96-17 ATF Use of Force
Chapter 4 

ATF, DEA, and FBI Often Use Dynamic

Entries and Comparable Equipment to

Execute High-Risk Warrants

Agents assigned to SRTs are to wear the same basic duty uniform described

above with some additional clothing during enforcement operations. SRT

members wear a black-webbed vest, which is used to carry extra

equipment (e.g., diversionary devices, radios, and extra ammunition) over

their ballistic vest. SRTs may also wear fire-retardant gloves for added

protection during operations in which diversionary devices are authorized.

In addition, the Los Angeles Division’s SRT wears fire-retardant balaclavas14

for further protection during these operations. However, according to the

Los Angeles Division’s SRT leader, division management requires the

balaclavas to be removed as soon as the entry or operation is complete

and the area is secure. ATF has obtained excess military clothing, such as

camouflage battle dress, for use by agents during training, to reduce the

wear on agents’ basic duty uniforms. According to ATF agents, this clothing

also may be worn during surveillance operations in rural areas. However,

according to SRT agents and ATF headquarters officials, with only an

occasional exception in rural areas, the camouflage clothing is not to be

worn by entry teams during the execution of search and arrest warrants.

During our review of division training, we observed ATF agents wearing the

basic duty uniform, tactical helmets and boots as well as SRT agents

wearing their additional carrier vests. Agents with whom we spoke stated

that this clothing represented what they wear during enforcement

operations.

ATF Equipment Is

Generally Comparable to

FBI’s and DEA’s

On the basis of our discussions with FBI and DEA training and field division

officials as well as our observations of the equipment at their Washington

field divisions, ATF weaponry generally is comparable to the weapons used

by FBI and DEA. However, unlike ATF, both FBI and DEA have and are

authorized to use certain automatic weapons (e.g., M16 rifle) that, with a

single depression of the trigger, will continue to fire rounds until the

trigger is released or the ammunition is exhausted. However, DEA

Washington Division officials stated they had never used the M16 during

enforcement operations, and both DEA and FBI officials agreed that the M16

is not a very practical weapon for urban operations.

In addition, the breaching equipment, body bunkers, vehicles, aircraft,

clothing, and specialized equipment used by SRTs also generally are

comparable with those used by FBI SWAT and DEA HEAT teams. For example,

FBI SWAT team members have black or green uniforms and DEA HEAT team

members have green uniforms. Both FBI SWAT and DEA HEAT teams have

14A balaclava is a knit hood covering the head and neck.

Page 63 GAO/GGD-96-17 ATF Use of Force
Chapter 4 

ATF, DEA, and FBI Often Use Dynamic

Entries and Comparable Equipment to

Execute High-Risk Warrants

ballistic helmets and fire-retardant balaclavas. Also, FBI and DEA have

aircraft that can be used for intelligence and surveillance operations, such

as obtaining aerial photography, and the FBI SWAT and DEA HEAT teams

generally have similar vehicles, such as sports utility vehicles, from which

they can deploy and in which they store equipment. However, while FBI

SWAT teams have some additional tactical equipment not available to SRTs

for dynamic entries, such as additional breaching equipment, the DEA HEAT

team has somewhat less equipment. For example, the DEA HEAT team does

not train with or have equipment for rappelling, is not allowed to use

flash/sound diversionary devices, and does not include a sniper/forward

observer position and its related equipment.

Conclusions Dynamic entry is a common tactic used by ATF, DEA, and FBI when entry to

premises is used to execute high-risk search and arrest warrants. Dynamic

entry is to be used when it is believed to be the safest alternative given the

particular circumstances and requirements of an operation. The weaponry

and equipment available for use by ATF, DEA, and FBI to effect dynamic

entries are generally comparable.

Page 64 GAO/GGD-96-17 ATF Use of Force
Chapter 5 

ATF Complied With Its Procedures for

Investigating Shooting and Alleged

Excessive Force Incidents

ATF has procedures in place for reporting, investigating, and reviewing

shooting incidents and use of excessive force allegations involving ATF

agents. These procedures are consistent with guidelines and/or standards

recommended by IACP, PCIE, and the Commission on Accreditation for Law

Enforcement Agencies.1

 Overall, ATF’s procedures for shooting incidents

also are comparable to those employed by DEA and FBI. However, while

ATF’s excessive force procedures are comparable to DEA’s, there are

distinctions with those employed by FBI.

Our review of available information in ATF’s investigative files of reported

intentional shootings and alleged use of excessive force incidents for fiscal

years 1990 through 1995 showed that ATF complied with its investigative

procedures in effect at the time of the investigation except that two

investigative files did not contain a record of review2

 by the designated

unit at ATF headquarters as required by procedures. Our review also

showed that ATF investigations determined that all reported intentional

shootings were justified and most reported allegations of excessive force

were unsubstantiated. In addition, our review showed that ATF agents

found to have engaged in misconduct received sanctions in the form of

written reprimands and suspensions, and that ATF has implemented

lessons learned from its investigations.

ATF Procedures Are

Consistent With

Recommended

Guidelines and

Standards and Are

Generally Comparable

to Those Employed by

DEA and FBI

ATF’s procedures for reporting, investigating, and reviewing shooting

incidents and allegations of use of excessive force are consistent with

recommended guidelines and/or standards for law enforcement agencies

established by IACP, PCIE, and the Commission on Accreditation for Law

Enforcement Agencies. Overall, the shooting incident procedures are

comparable to those employed by DEA and FBI. However, while the

excessive force procedures are comparable to DEA’s, there are distinctions

with those employed by FBI.

ATF also has procedures for addressing administrative tort claims and civil

lawsuits filed by complainants. Complainants may file such administrative

claims and lawsuits in addition to reporting allegations of excessive force

use.

1

The Commission on Accreditation for Law Enforcement Agencies, a not-for-profit corporation, was

established in 1979 by major law enforcement membership associations, including IACP. The purposes

of the Commission are to offer (1) standards on law enforcement topics, such as the role and authority

of law enforcement agencies, and (2) a process for addressing and complying with the standards.

Compliance with standards to gain Commission accreditation is voluntary.

2

A document maintained in the investigative file that indicates who reviewed the file and, where

applicable, any annotated comments resulting from the review.

Page 65 GAO/GGD-96-17 ATF Use of Force
Chapter 5 

ATF Complied With Its Procedures for

Investigating Shooting and Alleged

Excessive Force Incidents

Procedures for Reporting,

Investigating, and

Reviewing Shooting

Incidents

ATF has procedures in place for reporting, investigating, and reviewing

shooting incidents. These procedures were revised in October 1994.3

 The

revisions were initiated by the ATF Director as part of an overall

reorganization of ATF’s operations. Under the revised procedures, ATF’s OI4

is responsible for investigating reported shooting incidents. Before the

revision, ATF’s Office of Enforcement (OE) was responsible for

investigating shooting incidents. According to an OI official, the transfer of

responsibility was part of an effort to make the investigative process

independent of the enforcement process. As a result of the overall

reorganization, OI reports directly to the ATF Director. The revisions also

include changes in the reporting requirements and procedures and in the

procedures for reviewing shooting incident reports. Appendix IV contains

a detailed description of ATF’s procedures for reporting, investigating, and

reviewing shooting incidents.

As shown in figure 5.1, once a shooting incident occurs, the ATF agents

involved in or present at the incident are required to immediately notify

their supervisors. The incident is then to be reported through the chain of

command to OE and OI, followed by a written notification within 12 hours

of occurrence. Agents are not required to report shooting incidents related

to authorized training and recreational shooting. According to the

procedures, OI is to determine whether to conduct an investigation of any

incident involving the discharge of a firearm within the criteria established

by ATF. For example, the intentional discharge of a firearm by an agent is

to be investigated. However, shootings of canines or other animals, while

required to be reported, are not normally investigated. If an investigation

of a shooting incident is required, OI is to assign it to a shooting incident

review team (SIRT).

3

According to an Office of Inspection (OI) official, as of December 1995, an ATF order finalizing these

revisions was being reviewed within ATF; but the revised procedures had been in effect since

October 1994.

4

According to an OI official, OI is also responsible for, among other things (1) inspecting ATF’s 24 field

divisions and their sub-offices and (2) reviewing the weapons and training qualifications of ATF

agents.

Page 66 GAO/GGD-96-17 ATF Use of Force
Chapter 5 

ATF Complied With Its Procedures for

Investigating Shooting and Alleged

Excessive Force Incidents

Page 67 GAO/GGD-96-17 ATF Use of Force
Chapter 5 

ATF Complied With Its Procedures for

Investigating Shooting and Alleged

Excessive Force Incidents

Figure 5.1: Procedures for Reporting,

Investigating, and Reviewing Shooting

Incidents

Shooting incident

occurs

ATF agent involved is to

notify supervisor

Supervisor is to

notify SAC and

field division

SAC

is to notify ATF 

Headquarters by phone

and by written SAR 

Notification to

ATF Headquarters by phone and

by written SAR

Regional OI

is to receive

notification by phone

from field division

A

B

ATF Field Division

Page 68 GAO/GGD-96-17 ATF Use of Force
Chapter 5 

ATF Complied With Its Procedures for

Investigating Shooting and Alleged

Excessive Force Incidents

A

Deputy Associate 

Director of the

Region

is to receive

notification by phone

is to receive 

notification by phone 

and in writing and 

determine whether 

an incident will be 

investigated

OI Regional -- 

designated entity is

to conduct a formal

investigation and

prepare a report

OI Headquarters --

designated entity

is to investigate all

incidents involving

injuries and/or

death and prepare

a report

SIR

Designated entity is to prepare a SIR

and supporting documents are to be

submitted to OI Assistant Director

SIRB

all members are to

receive copies and are

to review draft 

SIRB

is to meet and

determine findings/

recommendations

and reach concurrence

on draft 

SIRB

is to draft final report

with recommendations

and submit copy to

Associate Director of

Cognizant Directorate

is to review

 final report and

implement

recommendations

by sending report to

appropriate SAC for

implementation

B

ATF Headquarters

OI Assistant Director

 is to sign off on

report and submit copies

to SIRB members for

evaluation and comment

and schedule SIRB

meeting 

Indicates the two areas from which one designated entity will be chosen to prepare a report. 

either/or

Associate Director

of Cognizant

Directorate

(ex. Enforcement)

Page 69 GAO/GGD-96-17 ATF Use of Force
Chapter 5 

ATF Complied With Its Procedures for

Investigating Shooting and Alleged

Excessive Force Incidents

Note: ATF Bureau of Alcohol, Tobacco and Firearms

OI Office of Inspection

SAC Special Agent-in-Charge

SAR Significant Activity Report

SIRB Shooting Incident Review Board

SIR Shooting Incident Report

Source: GAO analysis of ATF data.

An SIRT is to investigate the shooting incident according to the process

described in figure 5.2. The investigation is to include, among other things,

the determination of facts and the analysis of the events and

circumstances relating to the incident. The SIRT is then to issue a Shooting

Incident Report (SIR) that is to include, among other things, background on

the incident, information on suspects’ actions, and exhibits. The report is

to be submitted to the OI Assistant Director. On the basis of the incident’s

nature and seriousness, the Assistant Director is to submit copies of the

report to all members of the Shooting Incident Review Board (SIRB). The

SIRB is composed of the following ATF officials: (1) the OI Assistant

Director; (2) the Deputy Associate Director for Criminal Enforcement

Programs; (3) the two Deputy Associate Directors for Criminal

Enforcement Field Operations in the West and East Regions, respectively;

(4) the Associate Chief Counsel for Litigation, Office of the Chief Counsel

(OCC); (5) the Assistant Director for Training and Professional

Development; and (6) the Chief of the Special Operations Division.

According to the OI Assistant Director (and current Chairman), the SIRB

meets at the Chairman’s request, generally within 2 to 3 weeks after a

SIR(s) has been submitted, to review the report(s) and determine whether

the shooting(s) was justified. The SIRB may accordingly recommend,

among other things, changes to training and operational policies.

Cognizant ATF Directorate heads are responsible for implementing the

recommendations and are to respond in writing within 30 days describing

the actions taken. If the SIRB finds the shooting to be not justified, and

potential misconduct by ATF agents, it is to forward the matter to ATF’s

Professional Review Board (PRB). As discussed below, PRB is to review

incidents of alleged agent misconduct, including the alleged use of

excessive force.

Page 70 GAO/GGD-96-17 ATF Use of Force
Chapter 5 

ATF Complied With Its Procedures for

Investigating Shooting and Alleged

Excessive Force Incidents

Figure 5.2: Investigative Procedures for Shooting Incidents

Designated Entity

(OI Regional/OI Headquarters)

is to determine the facts,

Process

is to interview those with direct

knowledge of the incident and

is to analyze the events and

circumstances leading up

to the shooting,

is to confer with the

field division SAC to discuss

the preliminary results,

and

Information/circumstances

to be collected/analyzed

Product

Background

information on

 incident

Steps

is to document

the results in a SIR .

SIR

is to be sent to

OI Assistant Director

Description of

participants

Data on suspects Suspect(s) actions

Description of 

firearms and rounds

fired

Identification of 

injured and/or

property damage

Sequence of 

incident notification

Exhibits, such as

diagrams and

photographs

Training Equipment

Investigative

 issues

Raid

planning

1.

2.

3.

4.

Indicates the two areas from which one designated entity will be chosen

to prepare a report.

Page 71 GAO/GGD-96-17 ATF Use of Force
Chapter 5 

ATF Complied With Its Procedures for

Investigating Shooting and Alleged

Excessive Force Incidents

Note: OI Office of Inspection

SAC Special Agent-in-Charge

SIR Shooting Incident Report

Source: GAO analysis of ATF data.

Shooting Incident Procedures

Are Consistent With

Recommended Guidelines and

Standards

ATF’s procedures are consistent with guidelines and/or standards

recommended by IACP, PCIE, and the Commission on Accreditation for Law

Enforcement Agencies. Specifically, IACP reporting guidelines recommend

that use-of-force incidents, including shooting incidents, be reported in an

accurate and timely manner. These guidelines also recommend the

preparation of a written report about the incident and the notification of

supervisors. In addition, IACP guidelines recommend that shooting

incidents be investigated and that the resulting investigative reports be

reviewed to determine whether changes in training or other policies are

needed. Consistent with these guidelines, ATF procedures require agents to

immediately report shootings to their supervisors and to follow up with a

written report. In addition, the procedures require that shooting incidents

be investigated and—depending on the nature of the incident—the

resulting reports be reviewed by the SIRB to determine if changes in

policies are warranted.

PCIE standards recommend that investigators be qualified, exhibit

professional proficiency, and exercise due professional care by following

an investigative plan and relevant procedures. In addition, the standards

recommend, among other things, the establishment of a management

information system. Consistent with these standards, according to OI

officials, (1) ATF investigators are special agents who have been

trained—both collectively and individually—in the investigation of

shooting and other use-of-force incidents, (2) ATF investigators use an

investigative plan in the form of an action checklist, and (3) OI maintains

investigative files and tracks investigations in a computer database.

Commission on Accreditation for Law Enforcement Agencies standards,

like IACP’s guidelines, recommend that shooting incidents be reported at

least verbally by law enforcement officers within a specified period of time

and to be followed by a written report as soon as practical thereafter. The

Commission standards also recommend that law enforcement agencies

review the incident reports. ATF’s procedures for reporting and reviewing

shooting incidents, discussed earlier, are consistent with these standards.

For example, ATF’s procedures require agents to immediately report

shooting incidents to their supervisors. In addition, SIRB—depending on

Page 72 GAO/GGD-96-17 ATF Use of Force
Chapter 5 

ATF Complied With Its Procedures for

Investigating Shooting and Alleged

Excessive Force Incidents

the nature of the incident—is to review investigative reports of shooting

incidents.

Both IACP’s and PCIE’s investigative guidelines and standards respectively

recommend that investigations generally be impartial, thorough, and

timely. These guidelines and standards also recommend that a thorough

investigation is to involve, among other things, interviewing witnesses,

gathering and preserving evidence, preparing a written report, and

maintaining an investigative file. According to the IACP guidelines, the

purpose of an investigation is to determine (1) the propriety of the use of

force and (2) whether the use of force was in accordance with

[departmental] policy. Our review of ATF’s shooting incident procedures

and investigative files showed that investigations were performed by OI, a

Directorate that is independent of OE, which is the Directorate most likely

to be involved in shooting incidents. The procedures require that the

investigation be completed within 30 days of the incident. They also

require that an investigation is to, among other things, include

interviewing participants and witnesses, and gathering evidence. In

addition, an ATF investigation is to (1) determine compliance with ATF and

Treasury use-of-force policies, (2) establish a factual record for purposes

of potential tort claims or litigation resulting from the incident, and

(3) identify lessons learned.

ATF’s Shooting Incident

Procedures Are Generally

Comparable to Those

Employed by DEA and FBI

Overall, ATF’s procedures are comparable to those employed by DEA and

FBI. For example, DEA and FBI reporting procedures require their agents to

immediately report shooting incidents through their chains of command to

the SACs. The initial reporting is to be followed by the SACs’ notification of

their respective headquarters by teletype. Accordingly, for example, a DEA

SAC is to notify DEA’s Office of Inspection and the appropriate drug section.

In addition, DEA and FBI procedures, like ATF’s, require that written

investigative reports be prepared. These reports are to include, where

pertinent, witness interviews, police and medical reports, and incident

scene diagrams and photographs, among other things. Finally, both DEA

and FBI, like ATF’s SIRB, have units to review shooting incidents.5

There are two distinctions in the three agencies’ shooting incident

procedures. The first distinction is related to investigative procedures.

Specifically, DEA and FBI field divisions involved in a shooting incident may

investigate that incident, while ATF field divisions cannot. For example,

according to DEA procedures, DEA’s Office of Inspections may designate a

5

DEA’s review unit is called the Critical Incident and Firearms Policy Review Committee, while the

FBI’s unit is called the Shooting Incident Review Group.

Page 73 GAO/GGD-96-17 ATF Use of Force
Chapter 5 

ATF Complied With Its Procedures for

Investigating Shooting and Alleged

Excessive Force Incidents

DEA field division to investigate accidental and other firearm discharges it

was involved in that did not result in significant injuries. Furthermore,

according to a DEA official, the Office of Inspections is to monitor these

investigations and conduct a post-investigative review of the field

division’s final report to determine compliance with investigative

procedures. In addition, according to an FBI official, FBI field divisions also

may investigate shooting incidents in which they were involved. The

Assistant Director of FBI’s Inspection Division, in consultation with the

Assistant Director of the Criminal Division and the cognizant SAC, is to

decide who will conduct the investigation. According to the FBI official, the

decision is to be based on the seriousness of the shooting incident.

The second distinction is related to the review process. Specifically, FBI’s

Shooting Incident Review Group, in addition to FBI personnel, also

includes one attorney each from Justice’s Civil Rights and Criminal

Divisions, while DEA’s Critical Incident and Firearms Review Committee

could include a representative from Justice—to be designated by

Justice—on a case-by-case basis. In contrast, ATF’s SIRB is composed of

only ATF personnel.6

Procedures for Reporting,

Investigating, and

Reviewing Excessive

Force Allegations

ATF also has procedures in place for reporting, investigating, and reviewing

use of excessive force allegations. According to these procedures, OI is

responsible for investigating allegations of various types of misconduct by

ATF agents, including the use of excessive force.7 Overall, DEA’s procedures

were comparable to ATF’s in addressing use of excessive force allegations.

However, there were distinctions between ATF’s and FBI’s procedures. ATF’s

OCC is responsible for reviewing administrative tort claims and civil

lawsuits filed by complainants.8

Procedures for Reporting and

Investigating Excessive Force

Allegations

According to an OI official, complainants generally report allegations of

use of excessive force to the SACs of ATF field divisions or to local law

enforcement agencies who, in turn, refer them to OI. Complainants have

6

It should be noted that, as discussed earlier, the SIRB does have an OCC representative, who, as

discussed in footnote 8 of this chapter, is under the oversight of Treasury’s Chief Counsel.

7

ATF defines agent misconduct as any act or pattern of behavior that (1) is contrary to standards of

conduct published by Treasury or ATF and to ATF directives or instructions and (2) might embarrass

ATF.

8

OCC is the chief legal adviser to the ATF Director and other ATF personnel, including special agents.

However, to maintain its independence on rulings related to ATF matters, OCC is under the oversight

of Treasury’s Chief Counsel. Four Associate Chief Counsels (ACC) are within OCC: (1) ACC for

firearms and explosives matters, (2) ACC for tobacco and alcohol matters, (3) ACC for

administration—this ACC advises PRB on misconduct cases, and (4) ACC for litigation.

Page 74 GAO/GGD-96-17 ATF Use of Force
Chapter 5 

ATF Complied With Its Procedures for

Investigating Shooting and Alleged

Excessive Force Incidents

also reported their allegations directly to OI and have filed administrative

tort claims and/or civil lawsuits.9

 In addition, use of excessive force

allegations have been reported by ATF agents who have witnessed such

incidents. ATF procedures require agents to report these allegations

promptly to OI.

OI has discretion over which use of excessive force allegations to

investigate. According to OI officials, after an allegation is reported to OI

and documented in an Incident Report, OI reviews the allegation and

decides whether to launch a formal investigation. Criteria for determining

whether to investigate the allegations include the seriousness of the

allegations, the reliability of the source, and the timeliness of their

reporting. According to the OI officials, while some allegations—following

a preliminary review—are determined to be frivolous and, therefore, are

not investigated, most of them are investigated. According to OI, an

example of a frivolous allegation is one where complainants identify ATF

agents as having used excessive force against them during an enforcement

action, and a subsequent OI preliminary review determines that ATF agents

were not involved in the enforcement action.

OCC may request an investigation of excessive force allegations as a result

of an administrative tort claim or civil lawsuit filed by a complainant.

Whether or not OI determines that an investigation is warranted, it is to

prepare and retain an Incident Report documenting the allegations.

If OI decides to investigate use of excessive force allegations, the

investigation is to be conducted by one of OI’s four regional offices,

overseen by OI’s Deputy Assistant Director. The investigation is to be

conducted using the same investigative procedures and techniques as

those for shooting incident investigations discussed earlier (also see fig.

5.2 and app. IV). At the end of the investigation, a Report of Investigation is

to be prepared and submitted to OI, where it is to be reviewed and signed

by the Assistant Director and Deputy Assistant Director. The report is then

to be submitted to PRB for further review.

9

As requested by the Subcommittee, we inquired as to whether ATF had a policy to protect

complainants from retaliation by ATF agents. According to ATF officials, while ATF does not have a

formal policy, the investigative process in itself provides a form of protection for the complainants.

According to these officials, any agent who would retaliate during the course of an investigation could

also become criminally liable for such retaliation. The ATF officials also told us that they were not

aware of any incidents where agents had retaliated against complainants. In addition, the organizations

we contacted during our limited check did not identify any incidents where ATF agents retaliated

against complainants. According to DEA and FBI officials, their agencies also do not have specific

policies for protecting complainants from retaliation. According to these officials, incidents of

retaliation would be handled as separate matters and investigated as appropriate.

Page 75 GAO/GGD-96-17 ATF Use of Force
Chapter 5 

ATF Complied With Its Procedures for

Investigating Shooting and Alleged

Excessive Force Incidents

According to ATF’s misconduct procedures, all allegations of criminal

violations by ATF employees are to be immediately reported to OI. OI is then

to refer the matter to the local U.S. Attorney, Justice, or the appropriate

state or local prosecutor for jurisdictional and prosecutorial

determinations. In addition, if an OI misconduct investigation identifies

potential civil rights violations resulting from the alleged use of excessive

force, OI is to refer the matter to Justice’s Civil Rights Division for

jurisdictional and prosecutorial determination.

Procedures for Reviewing Use

of Excessive Force

Investigations

Reports of investigations involving alleged misconduct by ATF special

agents—including use of excessive force—are to be reviewed by PRB. In

addition, PRB is to review any shooting incident referred to it by SIRB for

adverse or disciplinary action because of agent negligence. According to

the PRB Chairman, from its inception in August 1995 until December 1995,

PRB reviewed 44 investigative reports, of which he estimated about 10 were

alleged use of excessive force incidents. According to the Chairman, none

of the reviewed alleged excessive force reports resulted in disciplinary

action against the agents involved.

PRB is composed of the following ATF members: (1) the Chief of OE’s

Enforcement Management Staff, who is also the PRB chairman; (2) the

Deputy Assistant Director of the Office of Science and Information

Technology; (3) the Chief of Laboratory Services of the Office of Science

and Information Technology; (4) the Chief of OE’s Alcohol and Tobacco

Programs Division; and (5) the Chief of the Career Development Division’s

Office of Training and Development. According to an ATF official, before

PRB, investigative reports were to be submitted to and reviewed by officials

such as an agent’s SAC or OE’s Assistant Director to determine the need for

and types of sanctions.

According to the PRB Chairman, PRB meets every 2 weeks to review the

investigative reports submitted by OI. On the basis of the facts of each

incident, PRB determines whether to propose adverse or disciplinary action

against the agents involved.10 PRB coordinates this decision with ATF’s ELRB

and OCC. If it is determined that adverse or disciplinary action—such as

suspension, demotion, or termination—is warranted, PRB will propose

such action in a formal letter. The letter, which ELRB drafts and the PRB

Chairman signs, is presented to the agent(s) involved in the incident. The

agent has 15 days within which to respond (orally or in writing) to the

proposed action or appeal it to a deciding official, normally a senior

10Adverse actions taken pursuant to 5 U.S.C. 7501-7514, include removal, suspension, reduction in

grade or pay, or furloughs for 30 days or less. ATF Order 2750.1c further details adverse and

disciplinary actions such as admonishment and reprimand.

Page 76 GAO/GGD-96-17 ATF Use of Force
Chapter 5 

ATF Complied With Its Procedures for

Investigating Shooting and Alleged

Excessive Force Incidents

manager in the agent’s field or headquarters unit. The deciding official

must coordinate his/her proposed decision with ELRB and OCC. If ELRB and

OCC do not agree and a compromise cannot be reached, then the decision

can be elevated to the next highest level, up to the Associate Director of

the relevant Directorate. The ultimate deciding official is responsible for

implementing the disciplinary action. PRB is to receive a copy of the final

action decision. Agents retain rights to appeal a decision to the Merit

Systems Protection Board (MSPB) or to file a complaint of discrimination or

a grievance.11

Excessive Force Incident

Procedures Are Consistent

With Recommended Guidelines

and Standards

ATF’s procedures are consistent with guidelines and/or standards

recommended by IACP, PCIE, and the Commission on Accreditation for Law

Enforcement Agencies. IACP and PCIE guidelines and standards respectively

for reporting, investigating, and reviewing use of excessive force incidents

are the same as those for shooting incidents discussed earlier. The

Commission’s standards call for a specialized unit to investigate, among

other types of misconduct, the use of force by law enforcement officers.

The standards also call for written directives to investigate complaints and

maintain records of such complaints. In addition, the standards call for the

investigative unit to report to the agency’s chief executive.

Consistent with the IACP, PCIE, and Commission guidelines and standards,

ATF procedures designate OI, which reports directly to ATF’s Director, to

investigate complaints of misconduct, including use of excessive force. In

addition, the procedures require agents to report misconduct, including

use of excessive force, to OI. As discussed earlier, OI is to conduct

preliminary investigations of allegations of misconduct, document them,

and, if the facts warrant, formally investigate the alleged misconduct. The

report resulting from the investigation is then to be reviewed by PRB.

ATF’s Procedures Are

Comparable to Those

Employed by DEA but Distinct

From Those Employed by FBI

Overall, ATF’s procedures are comparable to DEA’s in addressing use of

excessive force allegations. However, there are distinctions between ATF’s

and FBI’s procedures. According to DEA officials, complainants report their

allegations either to local law enforcement agencies or to field division

SACs. The SACs then report the allegations to DEA headquarters. Specifically,

according to DEA’s procedures, allegations of unnecessary (DEA’s

characterization of “excessive”) force are to be reported to its Office of

Professional Responsibility (OPR). OPR is to determine whether to

investigate the allegations and which unit—agent’s supervisor, the

cognizant field division, or OPR—will investigate them. The resulting

11As requested by the Subcommittee, we obtained information about ATF’s adverse personnel actions

taken as a result of the Waco incident. This information is presented in appendix VI.

Page 77 GAO/GGD-96-17 ATF Use of Force
Chapter 5 

ATF Complied With Its Procedures for

Investigating Shooting and Alleged

Excessive Force Incidents

investigative reports are to be reviewed by DEA’s Board of Professional

Conduct. The Board is then to either clear the agent or propose

disciplinary or adverse action. Authority for such actions is taken pursuant

to 28 C.F.R., section 0.138.

The only distinction we noted between ATF’s and DEA’s excessive force

incident procedures related to the delegation of investigative

responsibility. According to DEA’s procedures, use of unnecessary force

allegations may be investigated either by the agent’s supervisor, the

cognizant field division, or DEA’s OPR. In comparison, ATF’s OI does not

delegate its investigative responsibility.

There are distinctions between FBI’s and ATF’s procedures for investigating

and reviewing allegations of excessive force. According to FBI’s

procedures, reported allegations of excessive force against FBI agents are

to be referred by OPR to the FBI Criminal Investigative Division’s Civil

Rights Unit for investigation. The Civil Rights Unit is to first discuss all

allegations with Justice’s Civil Rights Division to determine whether

Justice will request a criminal investigation or decline in favor of an

administrative investigation. If the Civil Rights Division does not decline, a

criminal investigation of an allegation is to be conducted by FBI agents

under the supervision of the Civil Rights Unit and the Civil Rights Division.

Once the criminal investigation is complete, and if the Civil Rights Division

declines prosecution, the matter is to be referred back to OPR for

administrative processing. Specifically, OPR is to review the Civil Rights

Unit’s investigative report and is to determine its completeness and

whether specific FBI policies, procedures, and guidelines were violated.

OPR is to then refer the report to the FBI Personnel Division’s

Administrative Summary Unit. The Administrative Summary Unit is to

determine—and recommend as applicable—whether any administrative

action is warranted, on the basis of investigative facts and applicable case

precedents. Authority for such action is granted to FBI under 28 C.F.R.,

section 0.137.

In contrast to FBI, ATF’s OI, as discussed earlier, is to first conduct an

administrative investigation of alleged misconduct by its agents, including

excessive force allegations. If the investigation identifies any potential

criminal misconduct by an ATF agent, OI is to refer the matter to the

appropriate federal, state, and local prosecutor, or to Justice for

jurisdictional and prosecutorial determination. In addition, if the

investigation identifies potential civil rights violations resulting from the

Page 78 GAO/GGD-96-17 ATF Use of Force
Chapter 5 

ATF Complied With Its Procedures for

Investigating Shooting and Alleged

Excessive Force Incidents

alleged use of excessive force, OI is to refer the matter to Justice’s Civil

Rights Division for jurisdictional and prosecutorial determination.

Complainants Have Filed

Administrative Tort Claims

and Civil Lawsuits Related

to Use of Excessive Force

Allegations

In addition to reporting use of excessive force allegations, complainants

have also filed administrative tort claims and civil lawsuits against ATF

related to these allegations. During fiscal years 1990 through 1995,

complainants filed 975 administrative tort claims and 528 civil lawsuits. As

discussed earlier, during the same period, ATF initiated 76,542

investigations and arrested 46,930 suspects. Under ATF’s procedures, OCC is

responsible for reviewing the administrative tort claims and civil lawsuits

and advising ATF, Treasury, and Justice decisionmakers on legal issues

related to the claims and lawsuits.

Tort Claim Process In addition to reporting use of excessive force allegations to ATF,

complainants may also file administrative tort claims—claims for

monetary compensation—under the Federal Tort Claims Act (FTCA).12

According to the ACC for litigation, these claims are filed against the United

States for allegedly negligent or other wrongful acts—such as damaging

property—committed by its employees, such as ATF special agents, during

the course of their employment. All administrative tort claims involving

ATF employees are initially to be filed with ATF’s Chief of the Administrative

Programs Division, who has the authority to make the final decision on the

claims. After a claim is filed, the Chief is to refer it to OCC for legal review

and advice. Procedurally, a claimant must first present an administrative

claim to the appropriate federal agency. Once the claim has been denied,

or 6 months after the claim has been filed, the claimant may bring a

lawsuit in federal court.

At OCC, the ACC for litigation13 is to assign the claim a unique number and

enter it into a computerized case management and tracking system. The

claim is then to be assigned to an attorney. The attorney is to conduct an

initial screening of the claim to determine whether (1) it is filed in a timely

manner and contains the prerequisite “sum certain”14 in damages, (2) it

includes sufficient documentation of the claimed damages, (3) an

12Provisions of FTCA appear at 28 U.S.C., sections 2671-2680 and other scattered sections of 28 U.S.C.

13The ACC for litigation (1) advises ATF personnel on general law enforcement matters not covered by

the other ACCs and defends them in civil litigation; (2) reviews all tort claims against ATF; and (3) as

part of the SIRB, reviews shooting incident reports to determine whether there was legal application of

the use-of-force and other relevant ATF and Treasury policies. The ACC for litigation may also be

called upon to give legal advice or express an opinion on other aspects of an operation, such as its

planning and implementation, that could have led to legal problems.

14A “sum certain” claim clearly identifies a monetary amount for damages or injuries.

Page 79 GAO/GGD-96-17 ATF Use of Force
Chapter 5 

ATF Complied With Its Procedures for

Investigating Shooting and Alleged

Excessive Force Incidents

investigative or accident report was created, and (4) other agencies were

involved in the incident resulting in the claim. If the claim does not contain

a sum certain figure or sufficient documentation—such as medical reports

and bills—to support the claimed damages, a letter to the claimant is to be

prepared requesting additional information and documentation. In

shooting incidents, the relevant SIR is to be obtained. In incidents where no

investigative report is available, OCC is to request an investigation of the

allegations from OI. If another agency was involved in the incident, counsel

for that agency is to be contacted and the resolution of the claim is to be

coordinated as required by Justice regulations on federal tort claims.15

The assigned attorney also is to conduct a legal analysis of the claim’s

facts and applicable law. Specifically, the attorney is to determine whether

(1) the claim falls within FTCA, (2) the ATF employee was within the scope

of employment at the time of the incident, (3) the claimed negligent or

wrongful conduct is factually and legally supported, (4) there are any

affirmative defenses under the applicable state law that bar

recovery—such as the claimant was also negligent, and (5) damages are

recoverable under state law.

To determine damages, the attorney is to consult comparable cases in the

same state where the injuries were parallel. On the basis of this legal

review, the ACC for litigation is to prepare a memorandum for the Chief of

the Administrative Programs Division. The memorandum is to summarize

the case and recommend whether the claim should be allowed in full or

part or be disallowed. The memorandum is to be accompanied by a letter

to the claimant and a payment voucher if the claim is being allowed. If the

award involves more than $25,000 and it is approved by the Administrative

Programs Division Chief, it must also be approved by Justice. Without

Justice’s approval, the letter to the claimant cannot be sent.

During fiscal years 1990 through 1995, 975 administrative tort claims were

filed against ATF. According to the ACC for litigation, 279 of the 975

claims—or about 29 percent—could be related to the excessive use of

force.16 Specifically, of the 279 claims, 143 resulted from the Waco

incident, 14 resulted from the alleged destruction of or damage to

firearms, 6 resulted from property damage caused by discharged bullets,

1528 C.F.R. 14.2 (b) (2).

16The remaining 696 tort claims resulted from the following: 497 resulted from traffic accidents

involving vehicles driven by ATF agents; 33 resulted from ATF employees claiming property damage

during the course of employment; 15 resulted from explosives-related incidents; 3 resulted from “hot

pursuit” traffic accidents where a suspect’s vehicle may have struck another while attempting to evade

ATF; and 148 resulted from all other sources, such as libel and slander, and arson investigations.

Page 80 GAO/GGD-96-17 ATF Use of Force
Chapter 5 

ATF Complied With Its Procedures for

Investigating Shooting and Alleged

Excessive Force Incidents

53 resulted from property damage caused during the execution of

warrants, 8 resulted from shooting incidents, and 5517 resulted from

injuries during some type of law enforcement activity. Injury claims are

filed for, among other things, assault and battery, such as striking, pushing,

or kicking—25 of the 55 injury-related tort claims alleged such activity. Of

the 55 tort claims resulting from injuries, 4 were granted, 12 were pending

at the time of our review, and 39 were denied. Of the four tort claims that

were granted, one was for medical costs of an arrestee ($122.46), one was

for detention of individuals during a state enforcement action in which ATF

agents participated ($200 for each claimant), one was for the execution of

a search warrant at a wrong address ($10,000), and one was for false arrest

($15,000). Twenty-three of the injury tort claims also resulted in civil

lawsuits. Of these, 12 were dismissed, 1 was settled for $20,000 for false

arrest, and 10 were pending at the time of our review.

Civil Litigation Process According to the ACC for litigation, civil lawsuits against ATF are filed by

individuals either as (1) “Bivens cases” for alleged violations of their

constitutional rights or (2) FTCA cases for negligence or wrongful acts

committed by employees within the scope of their employment. Bivens

cases are named after the 1971 Supreme Court decision18 that held that an

individual injured by a federal agent’s alleged violation of the Fourth

Amendment may bring an action against the agent. FTCA cases fall under

the tort claims statute discussed earlier.

All civil lawsuits against ATF and its employees involving official duties are

to be forwarded to OCC. At OCC, the lawsuit is to be assigned a number and

entered into a computerized case management and tracking system. The

lawsuit is then to be assigned to an attorney for an initial review. The

attorney is to determine whether the lawsuit is against the United States,

ATF, an ATF employee in his/her official capacity, or an ATF employee in

his/her individual capacity. The attorney is also to gather all

documentation related to the incident, such as a tort claim file (if

applicable), a SIR, OI’s misconduct report, decisions and rulings in related

criminal cases, and related criminal investigative or compliance inspection

reports.

If the lawsuit is against the United States, ATF, or an ATF employee in

his/her official capacity, the appropriate ATF office and employee is to be

notified of the lawsuit. Justice is to provide representation in the lawsuit

17Of the 55 claims, 37 resulted from the execution of arrest and/or search warrants, 7 from arrests, 4

from undercover buy/busts, and 7 from unspecified activities.

18Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).

Page 81 GAO/GGD-96-17 ATF Use of Force
Chapter 5 

ATF Complied With Its Procedures for

Investigating Shooting and Alleged

Excessive Force Incidents

without a written request from the employee. However, if the lawsuit is

against an employee in his/her individual capacity, the employee is to be

notified of the lawsuit and advised that Justice representation is available

if requested. If the employee requests Justice representation, the employee

must forward a written request concerning the facts of the allegations to

OCC. The employee’s supervisor must also provide written notice that

he/she is aware of the allegations and the employee’s conduct and has

determined that the employee acted properly within the scope of

employment. OCC is then to advise Justice on whether to represent the

employee, on the basis of whether the employee acted within the scope of

employment and representation is in the best interest of the government.

During litigation, Justice may solicit ATF’s views regarding a settlement. In

general, OCC is to prepare a memorandum analyzing the relevant law, facts,

and litigation risk. If a settlement in excess of $500,000 is recommended, it

must be approved by Treasury’s Assistant General Counsel for

Enforcement if the lawsuit is against the United States, ATF, or an ATF

employee in his/her official capacity. If there is a proposed settlement or

adverse action against an employee in his/her individual capacity, the

employee may request indemnification by making a written request to OCC.

OCC is then to make a recommendation on the basis of an analysis of the

case’s facts and legal issues. The recommendation is to be submitted to

Treasury’s Assistant General Counsel for Enforcement and the Deputy

Secretary for Enforcement for approval. Indemnification is approved and

available only if the employee acted within the scope of employment, it is

in the best interest of Treasury, and there are available appropriated funds

for ATF.

During fiscal years 1990 through 1995, 528 civil lawsuits were filed against

ATF. According to the ACC for litigation, of the 528 lawsuits, 183 were

Bivens and FTCA-related lawsuits. Of the 183 lawsuits, 31 were filed as a

result of a shooting or other allegation of excessive force use.

Furthermore, of these 183 lawsuits, 106 alleged an illegal search and/or

seizure; 35 were challenges to criminal convictions; and 42 were related to

other allegations, such as failure to place an individual in a witness

protection program, libel and slander, and invasion of privacy.19 In

19Certain lawsuits involved more than one allegation.

Page 82 GAO/GGD-96-17 ATF Use of Force
Chapter 5 

ATF Complied With Its Procedures for

Investigating Shooting and Alleged

Excessive Force Incidents

addition, 15 of the 528 lawsuits were filed as a result of the Waco

incident.20

Of the 183 lawsuits not related to Waco, 11 were settled with no finding

against or concession of wrongdoing by ATF, 115 were dismissed,21 and 57

were pending at the time of our review. Among some of the lawsuit

settlements, two were for trespass-type claims involving searches of

property and four were for false arrest claims involving, among other

things, mistaken identities. The settlements ranged from $200 for false

arrest claims to $250,000 for the accidental shooting of a local law

enforcement officer.

ATF Complied With

Its Investigative

Procedures

Our review of available information in ATF’s shooting incident and

excessive force investigative files for fiscal years 1990 through 1995

showed that ATF complied with its investigative procedures in effect at the

time of the investigation except that two investigative files did not contain

a record of review required by the procedures. The review also showed

that ATF (1) investigations found that all reported intentional shootings

were justified, (2) investigations found that most reported allegations of

excessive force were unsubstantiated, and (3) agents found to have

engaged in some type of misconduct received sanctions in the form of

written reprimands and suspensions.

As discussed in chapter 1, due to time and methodological constraints, we

did not evaluate the events that resulted in the incidents or the quality and

adequacy of the ATF investigations. In addition, we did not verify whether

all shooting and alleged excessive force incidents were reported, or

whether all reported allegations of excessive force were investigated. Our

conclusions about ATF’s compliance with its investigative procedures are

based on whether we found documentation required by these procedures

20Of the remaining 330 lawsuits, 62 were filed under the Freedom of Information Act, 47 were filed

under the Administrative Procedures Act, 32 were filed seeking relief—restoration of firearms

rights—under the Gun Control Act, 41 were filed related to the revocation or denial of firearms

licenses, 42 were filed related to motor vehicle accidents, 18 were filed related to tax collection issues,

1 was filed seeking private relief, and 87 were filed for various other reasons, including challenges to

forfeitures.

21Of the 115 dismissed lawsuits, 7 were dismissed because the statute of limitations expired; 61 were

dismissed because they lacked merit; 13 were dismissed because they were improperly filed; 4 were

dismissed because of the lack of specificity in pleading; 10 were dismissed because of “collateral

estoppel,” meaning that they were already dismissed in criminal court; 5 were dismissed voluntarily; 5

were dismissed as frivolous; 2 were dismissed because of the lack of prosecution—the case was filed

but there was no follow-up by the plaintiff; 3 were dismissed because of the lack of jurisdiction; 3 were

dismissed because of the agent’s prosecutorial immunity; and 2 were dismissed because of

governmental immunity.

Page 83 GAO/GGD-96-17 ATF Use of Force
Chapter 5 

ATF Complied With Its Procedures for

Investigating Shooting and Alleged

Excessive Force Incidents

in the investigative files of shooting and alleged excessive force incidents

and whether the documentation indicated that investigative procedures

had been followed. Where documentation was not initially found, we

obtained documents and/or explanations from ATF officials. Our

conclusions apply only to the files we reviewed.

Review of Shooting and

Use of Excessive Force

Incident Investigations

Our review of ATF’s investigations of shooting incidents focused on those

incidents where ATF agents reported intentionally discharging their

weapons at suspects. As shown in table 5.1, during the period of fiscal

years 1990 to 1995, ATF agents were involved in 39 such incidents. We

reviewed 38 files of shooting incident investigations. We did not review the

shooting incident resulting from ATF’s operation at the Branch Davidian

compound in Waco because it was investigated by Treasury and not by

ATF. Of the 38 shooting incidents we reviewed, 4 were the result of ATF SRT

operations. Of the remaining 34 shooting incidents, 11 resulted from

non-SRT ATF operations; 19 resulted from task force or other joint

operations with federal, state, and/or local law enforcement agencies; and

4 resulted from other situations.

Table 5.1: Reported Intentional

Shooting Incidents Involving ATF

Agents, FYs 1990-1995 FY

Number of

shooting incidents

1990 4

1991 9

1992 9

1993 2

1994 8

1995 7

Total 39

Source: GAO analysis of ATF data.

As part of our review, we also identified and reviewed all 92 files of

investigations—conducted during fiscal years 1990 through

1995—involving reported allegations of misconduct by ATF agents in 3

categories of agent misconduct: (1) misconduct during the execution of a

search warrant, (2) violation of a person’s civil rights, and (3) assault by an

Page 84 GAO/GGD-96-17 ATF Use of Force
Chapter 5 

ATF Complied With Its Procedures for

Investigating Shooting and Alleged

Excessive Force Incidents

agent on a person.22 As shown in table 5.2, 25 of the 92 investigations

involved incidents specifically alleging the physical abuse of persons

and/or property by agents. Of the 25 use of excessive force allegations, 1

was the result of an SRT operation. Of the remaining 24 use of excessive

force allegations, 9 resulted from non-SRT ATF operations; 9 from task force

or other joint operations with federal, state, and/or local law enforcement

agencies; and 6 from other activities, such as a traffic dispute and the

interrogation of a suspect.

Table 5.2: Reported Excessive Force

Incidents in Three Categories

Involving ATF Agents, FYs 1990-1995 FY

Number of excessive

force incidents

1990 3

1991 2

1992 5

1993 3

1994 8

1995 4

Total 25

Source: GAO analysis of ATF data.

Our review of available information in ATF’s shooting and excessive force

incident investigative files showed that ATF complied with its investigative

procedures in effect at the time of the investigation with an exception

discussed below. Specifically, all 39 reported shooting incidents involving

ATF agents intentionally discharging their firearms were

investigated—either by ATF or Treasury—as required by ATF procedures.

In addition, the 38 shooting incident and 25 excessive force investigative

files we reviewed contained the following items as required by ATF

procedures.

• The identification of individuals—such as ATF agents, other federal and/or

state and local law enforcement officers, and suspects—and property

involved in the incidents.

• Injuries and/or fatalities resulting from the incidents.

22Since ATF did not maintain a separate category for use of excessive force incidents, the three

categories were selected judgmentally following consultations with OI officials and a review of a list of

misconduct incident categories. The selection was based on the likelihood that these categories would

include most, if not all, alleged use of excessive force incidents. However, we cannot be sure that these

categories include all use of excessive force incidents.

Page 85 GAO/GGD-96-17 ATF Use of Force
Chapter 5 

ATF Complied With Its Procedures for

Investigating Shooting and Alleged

Excessive Force Incidents

• The type of operation—such as SRT, non-SRT, and task force—and type of

law enforcement activity that resulted in the incidents, such as serving

search and/or arrest warrants or engaging in undercover operations.

• Written reports of the incidents and interviews with participants and

witnesses.

The 25 investigative files of alleged excessive force incidents included a

record of review by the designated unit as required by ATF procedures. The

shooting incident investigative files generally contained a record of review

by the designated unit. Specifically, 34 shooting incident files contained

this information. One shooting investigation review was pending at the

time of our review and one shooting investigation was submitted to ATF’s

then Office of Internal Affairs (the predecessor to OI) without a formal

review. In addition, an OE official explained that following a search, a

record of headquarters review could not be located in two shooting

incident investigative files. These two incidents were investigated before

the October 1994 revision of ATF’s investigative procedures.

According to OI officials, other types of information, while not required by

ATF procedures, could be included in investigative files if they are

available, or—in the case of medical reports—are required by special

circumstances, such as tort claims. For example, 35 shooting incident files

included pertinent descriptions of the incident scenes and 30 files included

descriptions of evidence, while 15 and 12 alleged excessive force files

respectively included this information. In addition, 32 shooting and 20

alleged excessive force files contained a record of notification of the

incident to ATF headquarters. Also, all 38 shooting and 22 of the 25 alleged

excessive force files contained an indication of whether shootings were

justified or the allegations were substantiated, and whether some type of

sanction or corrective action was recommended. Finally, 11 shooting and

10 excessive force investigative files included a medical report.

According to the OI officials, the investigative files discussed above may

not have included information for several reasons. For example,

descriptions of evidence—such as weapons and vehicles—may not be

available because such evidence may have been discarded by suspects and

never recovered. Written records of incident notification—significant

activity reports (SAR)23—are not material to OI investigations because OI is

notified of incidents by telephone. This notification, in turn, is documented

in an incident report, which is required to be included in the investigative

file. Medical reports may not be included in a file because of legal access

23ATF refers to this report as a KSAR.

Page 86 GAO/GGD-96-17 ATF Use of Force
Chapter 5 

ATF Complied With Its Procedures for

Investigating Shooting and Alleged

Excessive Force Incidents

and privacy issues. Complainants are required to provide medical reports

only for incidents that result in tort claims.

ATF Found All Shootings to Be

Justified

ATF’s investigations and the subsequent reviews determined that all

reported shootings were justified and within the scope of ATF’s

use-of-force policies. The following are examples.

• In a 1991 incident, two ATF agents shot and killed a suspect during the

serving of a state search warrant with local law enforcement officers at the

home of the suspect. The agents were returning fire after being fired upon

by the suspect. The suspect was under investigation for armed drug

trafficking. The investigation and subsequent review determined that the

agents acted within the scope of their duties because they were protecting

themselves from hostile fire.

• In a 1991 incident, an ATF agent exchanged fire with a suspect during an

undercover “buy/bust” operation. The suspect—classified as a high-risk

“shooter,” or someone likely to resist arrest—resisted arrest. The suspect

was the target of a large-scale undercover operation by federal law

enforcement agencies as a major cocaine dealer and convicted felon. The

ATF investigation and subsequent review determined that the shooting was

justified because the agents were defending themselves during a high-risk

operation.

• In a 1992 SRT-related incident, two ATF agents shot and killed a suspect

who was shooting at other agents and police officers. The incident

occurred during the execution of an arrest warrant issued by a state. The

execution of the warrant was a joint ATF/local police department

operation. The investigation and subsequent review determined that the

shooting was justified as self-defense and that ATF agents acted within the

scope of their duties.

• In a 1994 incident, three ATF agents engaged in an undercover “buy/bust”

operation exchanged fire with several suspects. The suspects were targets

of a gang-related investigation involving narcotics and weapons

trafficking. During the course of the operation, one of the suspects

attempted to rob one of the agents of his “buy” money. At that point, the

agent announced himself as a law enforcement officer, at which time the

suspect shot and wounded the agent. The agent and two other agents

returned fire. The suspects fled in a vehicle. One suspect was later

apprehended. ATF and local law enforcement agency investigations

determined that the shooting was justified since the agents fired in

self-defense when confronted with a life-threatening situation.

Page 87 GAO/GGD-96-17 ATF Use of Force
Chapter 5 

ATF Complied With Its Procedures for

Investigating Shooting and Alleged

Excessive Force Incidents

ATF Found Most Allegations of

Use of Excessive Force to Be

Unsubstantiated

ATF’s investigations and subsequent reviews determined that most

reported use of excessive force allegations were unsubstantiated due to

the lack of evidence. Specifically, in 18 of the 25 investigations, the ATF

agents involved in the alleged incidents were cleared of all allegations

because these allegations could not be substantiated. Four investigations

found some type of misconduct by ATF agents. Two investigations were

ongoing at the time of our review. One investigation was closed without

further action because OI determined that there was no need for

adjudication. Specifically, the allegation dated from 1984 and could not be

investigated because of the lack of witnesses and evidence. The following

are examples of allegations that ATF’s investigations could not

substantiate.

• In a 1990 incident, a complainant alleged that an ATF agent assaulted him

during an arrest for possession of an unregistered firearm. The

complainant was admitted to a hospital as a result of the incident.

However, ATF’s investigation of the incident determined that, according to

a medical examination, there were no bruises, and that the complainant

was actually admitted for a heart condition. While in the hospital, the

complainant told a deputy U.S. Marshal that he had actually lied about the

assault and did so in an attempt to stay out of prison by being admitted to

a hospital. Accordingly, the investigation and subsequent review

determined that the allegations were unsubstantiated. The agent was

cleared of the allegations.

• In a 1992 incident in which agents were eventually cleared, a complainant

alleged that two ATF agents beat him on the face and scraped his arm

during the execution of a search warrant. The investigation and

subsequent review determined that the allegation was unsubstantiated.

Specifically, a medical examination of the complainant showed that the

injuries were self-inflicted, which was a fact that the agents had observed

and reported. Subsequent to the medical examination’s results, the

complainant dropped the allegations against the agents. The agents

received letters of clearance.

• In a 1994 incident, a complainant alleged that ATF agents damaged a

lathe—a device used to refinish firearms—and firearms while returning

them. The items had been seized as evidence for a court case. The

investigation determined that the moving company hired by ATF to return

the items had damaged the lathe and had twice offered to replace it at no

charge. The investigation also determined that the complainant had

repaired any damage to the firearms before ATF had an opportunity to

examine them. As a result of the investigation, the agents received letters

of clearance.

Page 88 GAO/GGD-96-17 ATF Use of Force
Chapter 5 

ATF Complied With Its Procedures for

Investigating Shooting and Alleged

Excessive Force Incidents

• In a 1994 incident, a complainant alleged that ATF agents assaulted and

physically abused him during the serving of a search warrant. During the

ATF investigation, the complainant underwent a polygraph examination.

The examination determined that the complainant lied about the

allegations. The complainant did not dispute the results and claimed that

he had not really intended to file a complaint. The investigation and

subsequent review determined that the allegations were unsubstantiated,

and the agents received letters of clearance.

Agents Found to Have Engaged

in Misconduct Received

Sanctions

Four of the 25 investigations found evidence of some agent misconduct

during incidents where use of excessive force was alleged. As discussed

below, the agents found to have engaged in such misconduct received

sanctions in the form of written reprimands and suspensions.

• In one incident, in fiscal year 1990, two agents were suspended for 1 day

each for failing to report an incident to their supervisors. The incident

occurred during the search of suspected gang members in front of a

grocery store. According to the agents, the suspects were making

threatening gestures at their unmarked government vehicle. During the

search, a struggle ensued during which a suspect was shoved by an agent

against a store window, which was broken as a result. The store owner

reported the incident to a local law enforcement agency, which then

reported it to the ATF SAC.

• In a second incident, in 1990, an investigation determined that during an

SRT-related operation involving the undercover purchase of firearms, an

ATF agent engaged in a loud and offensive confrontation with a

confidential informant who was part of the operation. The agent

apparently became upset because narcotics were found in the informant’s

vehicle. As a result of the incident, the agent seized the narcotics but never

turned them over to any law enforcement agency. The agent later claimed

that he flushed the narcotics down a toilet. The agent was suspended for 5

days for conduct “unbecoming to an agent” and for failing to properly

handle suspected narcotics.

• In a third incident, in 1993, the complainant alleged that an ATF agent

verbally and physically abused him, aggravating a pre-existing injury. The

incident occurred during the serving of a federal search warrant. An ATF

investigation and subsequent review determined that the allegations of

physical abuse were unsubstantiated. However, the agent received a

written reprimand for unprofessional conduct and for initiating a

confrontation with the complainant that could have become more violent.

• In a fourth incident, in 1994, a suspect’s girlfriend filed a complaint

alleging an ATF agent struck her boyfriend—a parole violator—with a

Page 89 GAO/GGD-96-17 ATF Use of Force
Chapter 5 

ATF Complied With Its Procedures for

Investigating Shooting and Alleged

Excessive Force Incidents

firearm while arresting him. The agent claimed that the suspect struck his

head on the pavement during a brief struggle. The suspect submitted to a

polygraph test the results of which indicated deception on the suspect’s

part. However, the agent received a written reprimand for failing to report

an injury to a suspect during his official duties.

Results of Limited Check As noted earlier, we did not verify whether all shooting and alleged

excessive force incidents were reported, or whether all reported

allegations of excessive force were investigated. However, we did a limited

check to identify incidents that ATF may not have investigated by

(1) conducting a literature search using the LEXIS/NEXIS electronic

database to identify alleged ATF use of excessive force incidents reported

in the media and (2) contacting the American Civil Liberties Union and the

National Rifle Association to identify allegations of ATF excessive force

reported to these organizations. Through these sources, eight incidents

were identified. We then (1) cross-checked the alleged incidents we

identified against ATF’s (a) investigative records to determine if ATF

investigated these incidents and (b) litigation records to determine if any

complainants filed civil lawsuits against ATF related to these incidents, and

(2) discussed these incidents with cognizant officials.

Our cross-check of ATF’s investigative and litigation records determined

that three of the incidents—one shooting and two excessive force

allegations—were investigated by ATF. Our cross-check also determined

that two other incidents did not involve allegations of excessive force.

Finally, our cross-check determined the following regarding the remaining

three incidents:

• A 1991 incident of alleged excessive force reported by the National Rifle

Association was not investigated by ATF. ATF officials told us that they were

not aware of this incident because, for example, a complaint may not have

been filed. Moreover, no lawsuit had been filed against ATF at the time of

our review.

• A 1991 incident of alleged excessive force reported in newspaper accounts

and by the American Civil Liberties Union was not investigated by ATF

after its preliminary inquiry found that another federal law enforcement

agency’s personnel—not ATF’s—may have been involved in the alleged

incident. A lawsuit was filed naming ATF, among others, as a defendant.

The district court dismissed all claims against all of the federal defendants.

Page 90 GAO/GGD-96-17 ATF Use of Force
Chapter 5 

ATF Complied With Its Procedures for

Investigating Shooting and Alleged

Excessive Force Incidents

Subsequent plaintif motions were denied by the district court. The

judgment of the district court was upheld on appeal.

• A 1993 incident of alleged excessive force reported in newspaper accounts

and by the National Rifle Association was not investigated by ATF at the

request of the local U.S. Attorney’s Office litigating a related lawsuit

against ATF. A district court dismissed a substantial part of the lawsuit.

In sum, our limited check showed that in the eight incidents, ATF’s OI—or

its predecessor—either investigated or had reasons not to investigate the

shooting incident or allegations of excessive force that they were aware of.

Of the three incidents that OI was not aware of, two did not involve an

allegation of excessive force. With respect to the one incident that OI was

not aware of, OI and OCC officals told us that no complaints or lawsuits

related to the incident were filed with ATF and consequently they were not

aware of the incident. It should be emphasized that these results cannot be

generalized beyond the eight incidents.

ATF Has Implemented

Lessons Learned

From Shooting

Investigations

As part of its review process, ATF has implemented lessons learned

resulting from its investigations of shooting incidents. ATF is also in the

process of implementing lessons learned from the 1993 operation at Waco.

Procedures for

Implementing Lessons

Learned

According to the SIRB Chairman, changes to various policies are

transmitted to agents through the SIRB report review and recommendation

process. As discussed earlier and in appendix IV, under this process, SIRB

is to make formal recommendations about changes in enforcement

operations and policies, training, and technology to the appropriate ATF

Directorates. The heads of the Directorates are responsible for

implementing the recommendations and responding to the SIRB in writing.

The recommended changes are to reach field agents through their SACs,

who are ultimately responsible for their implementation. While the SIRB

does not have the power to enforce the recommendations, their

implementation is to be verified as part of OI’s inspection of ATF’s divisions.

Our review of DEA’s and FBI’s procedures for implementing lessons learned

from their investigations showed that these agencies’ procedures were

similar to ATF’s.

Page 91 GAO/GGD-96-17 ATF Use of Force
Chapter 5 

ATF Complied With Its Procedures for

Investigating Shooting and Alleged

Excessive Force Incidents

Examples of Lessons

Learned Being

Implemented

OI officials provided two examples of how lessons learned from OI’s

investigations—and SIRB’s subsequent recommendations—have been

implemented. In the first example, following a February 1995 meeting, SIRB

determined that some ATF agents were accidentally discharging their

firearms while using body bunkers. SIRB concluded that factors such as

wearing gloves and using the off/weak hand may have contributed to the

accidental discharges. In a memorandum to the Associate Director for

Enforcement, SIRB recommended that agents be trained in using firearms

carried in their weak, or off, hands while also using a body bunker and be

requalified for firearm use while wearing gloves. In response to these

recommendations, both the Associate Director for Enforcement and the

ATF Director issued separate memorandums to cognizant officials, such as

SACs and the Chief of ATF’s National Academy, informing them of the need

to improve body bunker and firearms training. Accordingly, we observed

agents at two ATF field divisions wearing gloves during their quarterly

firearm training sessions.

In the second example, SIRB recommended that in response to the bursting

of a shotgun barrel during a full-load test-firing—an incident that resulted

in injuries—ATF’s Director of Laboratory Services purchase and use remote

and secure test firing systems and safety shields. The Laboratory Services

Director responded in a memorandum that he not only had implemented

SIRB’s recommendations, but also had taken additional actions, such as

modifying all safety procedures at ATF’s laboratories.

Lessons Learned From the

Waco Operation

In October 1995, ATF issued a report identifying issues arising from the

operation at the Branch Davidian compound in Waco and outlining the

corrective actions it had taken in response to these issues. According to

ATF officials, they reviewed the Treasury report on the Waco operation and

addressed each issue raised in the report. In addition, ATF consulted with

experts from other organizations and law enforcement agencies, such as

IACP, the National Tactical Officers Association, the FBI, and the Secret

Service, to identify weaknesses that affected the policies and procedures

used during the Waco operation. According to the officials, copies of the

report have been distributed to all ATF field divisions to help

implementation. Also, according to these officials, ATF will (1) continually

evaluate the progress of its responses to the Waco lessons and make

changes as necessary, and (2) annually update the October 1995 report to

reflect the progress and changes made. Finally, according to the officials,

ATF is continuing to develop training programs to reflect the changes and

Page 92 GAO/GGD-96-17 ATF Use of Force
Chapter 5 

ATF Complied With Its Procedures for

Investigating Shooting and Alleged

Excessive Force Incidents

to ensure that there is consistency between policy and training and the

execution of enforcement operations.

According to the ATF report, ATF learned certain lessons related to the

planning and execution of enforcement operations and addressing

post-operation issues. The following is the report’s summary of the lessons

learned:

• ATF may not be able to carry out every tactical operation it encounters

alone and must be prepared to seek assistance from other federal, state,

and local law enforcement agencies when necessary;

• raid planners must have accurate and timely intelligence;

• raid planners must have training in a wide range of tactical options;

• raid plans must contain carefully constructed contingency plans so that

the momentum of going forward does not take control over rational

decisionmaking;

• raid commanders must be chosen on the basis of their ability to handle the

type of operation involved and not simply on the basis of territorial

jurisdiction;

• raid commanders must receive accurate and timely intelligence;

• raid commanders must have clearly defined duties and responsibilities;

• the incident commander must be located at the command post where

he/she can have access to all relevant intelligence and operational

developments;

• operational security must receive greater attention;

• in crisis situations, ATF agents who are emotionally involved and

exhausted should not be left to handle media relations; and

• ATF personnel, at all times, must be prepared to tell the truth and admit

mistakes. If misstatements are made, they must be corrected as quickly as

possible.

According to the report, among its responses to these lessons, ATF is in the

process of providing command and control and crisis management

training to decisionmakers, developing a tactical intelligence structure,

developing policy and training for operational security, and restructuring

and enhancing the SRTs. Regarding the SRTs, ATF determined that they

needed to be better equipped, to be provided with more specialized

training, and to have expanded capabilities.

Also according to the ATF October 1995 report, as a prelude to other

changes, the ATF Director in October 1994 restructured ATF’s headquarters

operations. Specifically, the Director elevated the training function to an

Page 93 GAO/GGD-96-17 ATF Use of Force
Chapter 5 

ATF Complied With Its Procedures for

Investigating Shooting and Alleged

Excessive Force Incidents

executive-level position and created the Training and Professional

Development directorate. He also created the Science and Information

Technology directorate and, as discussed earlier, made the inspection

function independent of the enforcement function.

Conclusions ATF has procedures in place for reporting, investigating, and reviewing

shooting incidents and allegations of excessive force by ATF agents. These

procedures are consistent with guidelines and/or standards recommended

by IACP, PCIE, and the Commission on Accreditation for Law Enforcement

Agencies and overall are comparable to those employed by DEA and FBI,

except for the distinctions noted herein.

On the basis of our review of ATF’s investigative files, ATF has complied

with its investigative procedures in effect at the time of the investigation

except that two investigative files did not contain a record of headquarters

review as required by the procedures. Also, ATF’s investigations

determined all shootings to be justified and most use of excessive force

allegations to be unsubstantiated. In addition, agents who ATF determined

had engaged in some type of misconduct were either suspended or

received letters of reprimand. Finally, we found that ATF has implemented

lessons learned from shooting investigations, and is in the process of

implementing lessons learned from Treasury’s investigation of the Waco

incident.

Page 94 GAO/GGD-96-17 ATF Use of Force
Page 95 GAO/GGD-96-17 ATF Use of Force
Appendix I 

Treasury and Justice 1995 Uniform Use of

Deadly Force Policies and ATF, DEA, and

FBI Prior Policies

Page 96 GAO/GGD-96-17 ATF Use of Force
Appendix I 

Treasury and Justice 1995 Uniform Use of

Deadly Force Policies and ATF, DEA, and

FBI Prior Policies

Page 97 GAO/GGD-96-17 ATF Use of Force
Appendix I 

Treasury and Justice 1995 Uniform Use of

Deadly Force Policies and ATF, DEA, and

FBI Prior Policies

Page 98 GAO/GGD-96-17 ATF Use of Force
Appendix I 

Treasury and Justice 1995 Uniform Use of

Deadly Force Policies and ATF, DEA, and

FBI Prior Policies

Page 99 GAO/GGD-96-17 ATF Use of Force
Appendix I 

Treasury and Justice 1995 Uniform Use of

Deadly Force Policies and ATF, DEA, and

FBI Prior Policies

Page 100 GAO/GGD-96-17 ATF Use of Force
Appendix I 

Treasury and Justice 1995 Uniform Use of

Deadly Force Policies and ATF, DEA, and

FBI Prior Policies

Page 101 GAO/GGD-96-17 ATF Use of Force
Appendix I 

Treasury and Justice 1995 Uniform Use of

Deadly Force Policies and ATF, DEA, and

FBI Prior Policies

Page 102 GAO/GGD-96-17 ATF Use of Force
Appendix I 

Treasury and Justice 1995 Uniform Use of

Deadly Force Policies and ATF, DEA, and

FBI Prior Policies

Page 103 GAO/GGD-96-17 ATF Use of Force
Appendix II 

Examples of Use-of-Force Scenarios Used to

Train New Agents

In training new agents, federal law enforcement agencies use various

scenarios to illustrate the use-of-force policies and proper and improper

applications of the use of force. We excerpted the following

scenarios—situations and discussions—from new agent training materials

provided us by the Federal Law Enforcement Training Center and the FBI

Academy. The scenarios were selected to provide a variety of situations

demonstrating proper and improper uses of force according to current

use-of-force policies. In real situations, agents are confronted with threats

that require them to make split-second decisions. How agents perceive the

seriousness of the threats and their reactions to them may vary. For

example, various factors, such as the size of the suspect relative to the size

of the agent, could affect agents’ perceptions of the threat they face and

their reaction to that threat. The following scenarios are provided for

illustrative purposes.

Scenario 1

Situation A male subject approaches a border inspection station in a pedestrian line.

The subject, in his early 20s, is 6 feet tall and weighs approximately 175

pounds. When the subject reaches the Inspector, he announces

“American” and attempts to walk past the Inspector. When the Inspector

tells the subject to stop, the subject bolts forward and jumps over the rail.

The Inspector immediately begins to chase the subject. Upon entering an

open field and in fear of losing the subject, the Inspector takes his

handcuffs from their case and begins to swing them at the subject’s head.

The subject shouts “Don’t hit me!” and falls to the ground. The Inspector

proceeds to handcuff the subject and escorts him back to the station.

Discussion In this example, the subject was not in the process of attacking the officer.

Therefore, the threatened use of handcuffs as an impact weapon was not

only an inappropriate use of force but also a questionable use of a device.

Scenario 2

Situation John Doe is a 46-year-old male. He is 6 feet 2 inches tall and weighs

approximately 210 pounds. Doe, a construction worker, has been

unemployed the past 2 months. Doe has placed himself in a seated

position directly in front of the state capitol building’s entrance and is

holding a protest sign. You have advised Doe that his actions are illegal

and that he must leave the entrance area and allow for public access. Doe

Page 104 GAO/GGD-96-17 ATF Use of Force
Appendix II 

Examples of Use-of-Force Scenarios Used to

Train New Agents

does not respond to your comments. You advise Doe three times that if he

does not move, he will be arrested. Doe begins to spit at you and states, “It

will take more than you to move me!” You move behind Doe and initiate a

neck compression hold, which places Doe in an unconscious state.

Discussion The application of this tactic at this time would be excessive use of force.

The method of gaining compliance was at a higher level than deemed

appropriate by the subject’s actions.

Scenario 3

Situation In the same situation as scenario 2, instead of applying a neck

compression hold, you move toward Doe, placing your right hand on his

left elbow and your left hand on his left wrist. You state, “You are under

arrest.” Doe begins to rise to his feet but then grabs for your service

weapon. Doe violently attempts to gain control of your weapon as you give

him a frontal head butt to his nose. Doe falls to the ground and is

handcuffed in a dazed condition.

Discussion In this example, the officer was placed at a level of great bodily harm

and/or death; therefore, such force was proper.

Scenario 4

Situation Two agents have a warrant to arrest a man for a bank burglary that

occurred several weeks previously. Unable to locate the man 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 suddenly hurls a wrench at the

agents, 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 he is

within 20 feet of the agents they both fire, striking the subject in the chest.

Discussion The use of deadly force is permissible. 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

Page 105 GAO/GGD-96-17 ATF Use of Force
Appendix II 

Examples of Use-of-Force Scenarios Used to

Train New Agents

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.

Scenario 5

Situation Two agents approach a subject suspected of a nonviolent felony offense in

the break room of the manufacturing plant where the subject works. The

agents have a warrant for his arrest. As they approach the man, who is of

average size and not known to be violent, they announce their identity and

tell him he is under arrest. When the agents are within arm’s length, the

unarmed subject executes a precise karate kick to one agent’s groin,

disabling him. The other agent backs away, draws his handgun, and orders

the subject to surrender. The subject ignores the commands, adopts a

martial arts fighting stance, and moves toward the agent. The agent fires.

Discussion Although there is no probable cause to believe the subject has previously

committed any crime involving the infliction or threatened infliction of

death or serious bodily injury, he is presently posing an imminent danger

to the agent by his attack. The subject is not only capable of inflicting

serious injury through his martial arts skills, he has the capacity to render

the agents incapable of defending themselves. The subject’s refusal to

comply with the agent’s command to surrender, his disabling attack upon

one agent, and his apparent intention to attack the second presents the

agent with no safe alternative to the use of deadly force. Agents are not

required to permit an assailant to disable them, thereby making their

firearms accessible to their assailant and rendering them incapable of

protecting themselves.

Scenario 6

Situation Two agents go to the residence of the ex-wife of a drug fugitive who

jumped bail, hoping to interview the woman about her former spouse’s

Page 106 GAO/GGD-96-17 ATF Use of Force
Appendix II 

Examples of Use-of-Force Scenarios Used to

Train New Agents

whereabouts. As the agents approach the house from the street, the

fugitive emerges from the front door, sees the agents and draws a

handgun. The agents take cover behind their car. Drawing their weapons

they yell, “Police, put your hands up!” The fugitive opens fire and begins to

run across the front yard to get away. Turning the corner of the house, the

fugitive trips and falls and is seen losing his gun, which flies into a thick

hedge. Regaining his feet, the fugitive runs along the driveway toward the

backyard but confronts a 6-foot-high chain link fence. He is climbing the

fence when one of the agents again yells for him to stop. When the suspect

ignores the command, the agent fires a shot, and the fugitive falls.

Discussion The use of deadly force is permissible. The fugitive has clearly

demonstrated his dangerousness by firing at the agents. Even though the

fugitive was seen to have lost his gun, the agents should consider the

possibility that the fugitive possesses another weapon. Moreover, his

efforts to escape from the vicinity of a violent confrontation in which he

inflicted or attempted to inflict 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 fugitive ignored commands to

surrender. It is neither safe nor reasonable to require agents to attempt to

physically overpower someone who has demonstrated that he will use

violence to avoid capture. To do so exposes the agents to unnecessary

risk. It is equally unreasonable to permit the fugitive 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.

Scenario 7

Situation 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.

Page 107 GAO/GGD-96-17 ATF Use of Force
Appendix II 

Examples of Use-of-Force Scenarios Used to

Train New Agents

Discussion Firing shots under these circumstances violates policy. The agents have

probable cause to believe 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, the firing

of a weapon into a crowded restaurant creates an unreasonable danger to

the public that is not outweighed by the likely benefits. If other safe

options are not available, 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.

Scenario 8

Situation Agents are involved in executing the arrest warrant on a man who has

committed a series of bombings over a period of years resulting in several

deaths and serious injuries. There is no information to suggest that the

subject carries firearms or other weapons. When the agents approach the

subject, he sees them from a distance of about 25 yards and quickly turns

and runs in the opposite direction. The agents shout, “Police! Stop!”

Ignoring the commands, the subject continues to run. When it becomes

apparent that the agents cannot overtake the subject, one agent again

shouts, “Police! Stop or I’ll shoot!” When the subject continues his flight,

the agent fires two rounds, striking him in the back.

Discussion The use of deadly force violates policy. Although the subject’s prior crimes

justify the belief that he is dangerous, there is no probable cause to believe

that he poses an imminent danger to the agents or to others as defined

under this policy. Neither the egregious nature of his crimes nor the

probability that he will continue his dangerous acts unless captured,

satisfies the imminent danger requirement of the policy. In the absence of

imminent danger, there is no need to use deadly force.

Scenario 9

Situation Two agents possess a warrant to arrest a man for a nonviolent felony. The

agents go to the subject’s residence to execute the warrant. As they walk

up the walkway to the front door, they hear a noise of a door slamming

from the rear of the house and see a man matching the description of the

subject running from the back of the house toward the nearby woods. The

Page 108 GAO/GGD-96-17 ATF Use of Force
Appendix II 

Examples of Use-of-Force Scenarios Used to

Train New Agents

agents immediately give chase but are unable to close the gap. Finally, one

of the agents shouts, “Police! Stop or we’ll shoot!” When the subject

continues to flee, the agent draws his sidearm and fires a shot into the air.

The subject continues to run and just before he disappears into the woods,

the agent fires a second shot at the subject.

Discussion The use of a warning shot and the use of deadly force violated policy.

There is no probable cause to believe that the crime for which the subject

is to be arrested involved the infliction or threatened infliction of death or

serious injury, nor is there probable cause to believe that his escape poses

an imminent danger to the agents or to others. If nondeadly means are not

successful in effecting the subject’s arrest, he will avoid arrest for the time

being.

Page 109 GAO/GGD-96-17 ATF Use of Force
Appendix III 

Case Examples of ATF SRT Tactical

Operations

The following are actual case examples of various tactics employed by ATF

SRTs to execute high-risk search warrants and/or arrest warrant

operations. The examples were taken from SRT activation files and were

selected to demonstrate the various types of tactical options available for

their use. The first two examples involve a bombing investigation, and the

remaining three examples are investigations involving narcotics in which

possession of firearms was involved.

According to ATF, a large number of high-risk warrants involve armed

narcotics traffickers. One of the tactical options of the SRT in these cases is

to “dynamically” secure the premises before suspects have an opportunity

to destroy the evidence or to resist the agents in any manner. However,

according to ATF, some teams are hesitant to use dynamic entries when

there is no evidence on the premises that can be easily destroyed. Those

teams prefer to surround the premises and, from covered positions, call

the suspects out. Several of the examples below planned for or contained

elements of the containment call-out and the dynamic entry tactics.

Five Tactical

Operations Case

Examples

Vehicle Stop of Suspect

and Stealth Entry Into

Premise

In a robbery attempt, four suspects transported and detonated an

explosive device at a bank automated teller machine. The machine was

blown across the street; however, no money came out of it. A search

warrant was obtained for their house where two of the suspects lived for

the purpose of locating additional explosive devices and evidence.

The primary suspect, a member of a gang, was a multiconvicted felon who

had been convicted of and/or suspected of murder, armed robbery, and

narcotics violations, among other felonies. The primary suspect was

believed to possess a handgun. Furthermore, small children were known

to reside at the house, whose windows and doors were fortified with

burglar bars. A risk assessment was developed, and on the basis of this

information, it was decided to request activation of the SRT.

Because small children and possibly explosives were present, SRT tactical

planners decided to attempt to detain the primary suspect outside of the

residence before executing the search warrant. For 3 days before

Page 110 GAO/GGD-96-17 ATF Use of Force
Appendix III 

Case Examples of ATF SRT Tactical

Operations

execution of the operation, SRT members surveilled the residence. The

suspect’s pattern of movement was documented, which enabled a plan to

be developed.

Early in the morning on the day of the operation, SRT members saw the

suspect leave his residence with his daughter and drive her to school.

After dropping his daughter off and clearing the school zone, the suspect

was pulled over without incident by a marked police vehicle. The suspect

was taken to a location where he was debriefed. After debriefing the

suspect, ATF and local law enforcement officers blocked all of the streets

surrounding the residence, and the SRT entry team positioned themselves

behind the residence. When all positions were secured, an ATF crisis

negotiator telephoned the wife of the suspect and talked her and her three

remaining small children out of the residence (a containment call-out

tactic). After debriefing the wife, a six-member entry team used a stealth

entry to enter the residence and clear it without incident.

A search team found flash powder, materials used to build a destructive

device, tools used to build and place a destructive device, and pages

copied from a book entitled The Anarchist’s Cookbook, which contained a

diagram of a destructive device. No arrests were made at this time.

Ruse About seven months after the search of the home in the previous example,

a federal arrest warrant was obtained for the primary suspect. Surveillance

of the suspect’s residence revealed that he still resided there. Because of

the factors identified in the previous operation, it was decided to

reactivate the SRT.

On the day before the operation, the SRT surveilled the residence but

neither the suspect, his wife, nor their children exited the house. A check

of the school found that one child was supposed to be attending. On the

basis of the available information, the SRT developed the following four

plans.

Plan 1 called for a vehicle stop using a marked police car similar to the

plan that had worked earlier. However, on the day of the operation, the

suspect did not take the child to school.

Plan 2 called for a containment call-out. Agents would surround the

residence and telephone the inhabitants of the house to tell them to come

Page 111 GAO/GGD-96-17 ATF Use of Force
Appendix III 

Case Examples of ATF SRT Tactical

Operations

out. Plan 2 was dropped after an attempt to call the house was

unsuccessful because the telephone had been recently disconnected.

Plan 3 called for a ruse. Using the premise of a routine interview, local

police detectives and the ATF case agent approached the house and asked

to talk to the suspect. This plan worked. The suspect exited the house and

was arrested without incident.

Plan 4, which was not needed, called for a dynamic entry. If during the

course of surveillance, the suspect had been seen at the house, SRT team

members were to make an entry through the back door of the house.

Containment Call-Out On three occasions, an ATF informant had purchased “rock” cocaine at the

residence of a three-time convicted felon. During these purchases the

suspect was observed with a rifle or possibly a shotgun. The suspect’s

girlfriend and two young children also lived at the residence.

The suspect had been convicted of armed robbery, assault, and firearms

violations and was also a gang member. The residence was fortified with

burglar bars. On the basis of this information and a risk assessment, it was

decided to activate the SRT.

Armed with a federal search warrant, the SRT decided to make a

containment call-out. With the assistance of local police, the SRT

surrounded the residence. The SRT hostage negotiator telephoned the

residence without success (it was determined later that the telephone’s

ringer had been turned off). When no response was received, the SRT

employed a public address system to call out the suspect. After several

announcements had been made, the suspect’s girlfriend exited the

residence. After the girlfriend was debriefed, the suspect was then

requested to exit the house, which he did. The suspect was debriefed and

confirmed intelligence reports that a child was still in the residence and

would not exit. The SRT entry team went into the house without incident

and escorted the child out. SRT members assisting in the search of the

house found one bolt action rifle and ammunition. The suspect was then

arrested.

Dynamic Entry A local police department determimed that for approximately 6 months an

armed cocaine trafficker had been distributing cocaine to local gangs. On

the basis of this information, ATF initiated an undercover investigation. A

Page 112 GAO/GGD-96-17 ATF Use of Force
Appendix III 

Case Examples of ATF SRT Tactical

Operations

federal search warrant was obtained on the basis of several undercover

purchases of cocaine made from the suspects. During these purchases,

one of the suspects was armed with a small caliber handgun. The

purchases occurred at the primary suspect’s residence—a two-story

apartment in a multistory apartment building—and three small children

had been present. On the basis of the available information, it was decided

to activate the SRT.

The SRT developed a plan to execute a dynamic entry using two three-man

teams and two trailers—who are team members used for cover and

prisoner control. One team was to secure the first floor of the residence,

and the second team was to proceed directly to the second floor. Cover

teams were to be used outside of the apartment to secure the front and

back of the apartment. To gain entrance to the apartment complex, the

front security gate was to be breached with a hydraulic door

spreader—called a rabbit tool.

On the day of the operation, the front gate was breached. After the SRT

knocked and announced their presence and intent without response, the

front door to the apartment was breached with a small battering ram. The

first team located one suspect downstairs. The second team, using a

ballistic body bunker for protection, located two suspects upstairs. The

apartment was cleared without incident, and no shots were fired and no

injuries were sustained.

A search of the apartment found 1.5 kilograms of cocaine powder, over

$20,000 in cash, and numerous rounds of ammunition. The three suspects,

two of whom had prior narcotics convictions, were arrested and charged

with drug, firearms, and immigration violations.

Dynamic Entry Planned

but Stealth Entry Executed

An ATF investigation of a street gang identified a narcotics house in an

urban residential location that did a very active business. Through

surveillance of the house, buyers had been seen making purchases there

throughout the night. A confidential informant had been inside the

residence and had purchased rock cocaine on several occasions. While in

the house, the confidential informant had observed a large amount of

narcotics and numerous weapons, including an assault rifle. Burglar bars

covered the doors and windows and video cameras surveilled the outside

of the residence. The suspects used police scanners to monitor local

police frequencies. No children had been seen at the location, but a guard

dog had been seen roaming the backyard.

Page 113 GAO/GGD-96-17 ATF Use of Force
Appendix III 

Case Examples of ATF SRT Tactical

Operations

The primary suspect had been arrested numerous times, once for murder,

and had been convicted of several felonies including one for drugs, an

assault with a firearm, and evading police while carrying a firearm. On the

basis of the available information and a risk assessment, it was decided to

activate the SRT.

Because of the possible threat of violence posed by the gang members, an

“anytime” search warrant was obtained, and a plan for a dynamic entry

was developed. Aerial and ground photography was obtained, and a

tactical diagram of the house was developed. Photographs showed that

breaching the front security door would be difficult and, thus, the SRT

planned to hook a rope to the door, attach it to a vehicle, and attempt to

spring the lock. A veterinarian was contacted, and it was decided to throw

a hot dog containing sleeping pills into the yard several hours before

initiating the operation in an effort to nullify the dog. Once the dog was

immobilized, the plan called for electricity to the house to be shut down to

disable the video surveillance cameras and police scanner. A check with

the telephone company found that the house did not have a telephone;

thus, it was decided to use a public address system to notify the suspects

of the search warrant. The announcement would state “Occupants of

[address stated], this is the police with a search warrant.” The

announcement was to continue until told to stop by the SRT team leader.

On the day of the operation, surveillance was initiated at the residence in

the early morning. Two hours before the operation was scheduled to

begin, an agent placed the hot dog with the sleeping pills in the yard.

Shortly, before the operation, a buyer made a purchase through a small

window that was next to the front door. When the operation began, a team

of four agents, with the responsibility of defeating the front security door,

deployed to the front of the house; a rear security team deployed to the

rear; and the entry team staged at the corner of the house.

A bolt cutter was used to cut the lock on the rear security gate, and the

rear security team entered the backyard and turned off the electric power

from the utility box to defeat the suspects’ surveillance devices. During the

same time, the front security door team approached the door to attach the

rope, and the public address announcements began. In the backyard, a

guard dog that had not eaten the hot dog soon enough to be fully affected

by the pills approached the agents. A flash-bang diversionary device was

deployed, and the dog retreated. Other flash-bang devices were deployed

at the back and sides of the house as a diversion for the front security door

team. As the front security door team was about to set the rope, the front

Page 114 GAO/GGD-96-17 ATF Use of Force
Appendix III 

Case Examples of ATF SRT Tactical

Operations

door opened. The suspects were ordered to exit the house, and two

complied.

The response at the front door changed the tactics from a planned

dynamic entry to a stealth entry. The rear security team was ordered not to

deploy additional diversionary devices, and the public address

announcement was discontinued. The entry team held their position until

the two suspects were debriefed. Both suspects said that no other people

were inside the house. On the basis of the fact that the primary suspect did

not exit the house, the entry team deployed a flash-bang diversionary

device into the front of the house before entering. The entry team then

entered the house using stealth entry tactics and cleared the rest of the

house without incident. While the primary suspect was not found, a search

of the house found .45 caliber ammunition, a small quantity of rock

cocaine, and approximately 2 pounds of marijuana. Two suspects were

arrested.

Page 115 GAO/GGD-96-17 ATF Use of Force
Appendix IV 

Procedures for Reporting, Investigating, and

Reviewing Shooting Incidents

ATF established the following procedures for reporting, investigating, and

reviewing shooting incidents. As discussed earlier, these procedures were

revised in October 1994. Major changes to the procedures are highlighted

below.

Reporting

Requirements for

Shooting Incidents

ATF agents are required to report both the intentional or accidental1

discharge of any firearm in six specific situations.

• First, when a firearm is discharged by an agent during any

enforcement-related activity.

• Second, when a firearm is discharged by a law enforcement officer or

agent, a suspect, or any other individual during an ATF enforcement

activity.

• Third, when a firearm is discharged by anyone during an enforcement

activity in which an agent is participating.

• Fourth, when a firearm is discharged by an agent or anyone in his/her

presence during nonenforcement activities or off-duty hours.

• Fifth, when a firearm is unintentionally discharged during laboratory or

technical examinations.

• Sixth, when a firearm is discharged by or in the presence of an ATF

inspector during duty hours.

ATF agents are not required to report the discharge of a firearm in two

situations. First, when a firearm is discharged during authorized training,

unless the discharge occurs off the firing position. Second, when a firearm

is discharged during off-duty recreational situations, such as

target-shooting and hunting, unless personal injury occurs. The previous

procedures did not specify in detail which shooting incidents were

required to be reported and which incidents were not required to be

reported.

Reporting Procedures

for Shooting Incidents

The revised procedures established a new reporting sequence for shooting

incidents. According to this sequence, the ATF agent involved in the

shooting incident is to immediately report the incident to his/her

supervisor. If the incident involves property damage, injury, or death, the

procedures require that local law enforcement agencies also be notified. If

the agent involved is unable to make notification, the senior agent present

or the first agent on the scene is required to do so. The group supervisor or

1

“Accidental” refers to the unintentional discharge of a firearm by a law enforcement officer due to

human error or equipment malfunction.

Page 116 GAO/GGD-96-17 ATF Use of Force
Appendix IV 

Procedures for Reporting, Investigating, and

Reviewing Shooting Incidents

RAC—the agent in charge of a field office—is to report the facts and

circumstances of the incident to the SAC and, if it has jurisdiction over the

incident, the local U.S. Attorney’s Office. Thereafter, the supervisor or RAC

is to respond personally to the scene of the incident. The SAC, in a new

requirement, is to report immediately by telephone the facts and

circumstances of the incident to the appropriate OI Inspector-in-Charge.

The SAC is required to also notify the Deputy Associate Director for

Enforcement having operational oversight over the division where the

incident occurred. This verbal notification is to be followed within 12

hours by a SAR.

2

 In another new requirement, the Inspector-in-Charge is to

immediately notify the OI Assistant Director.

Investigative

Procedures for

Shooting Incidents

The OI Assistant Director is to determine whether a formal investigation of

a shooting incident is required. A formal investigation would normally be

required if, for example, the shooting incident resulted in the death or

injury to ATF agents or others, or if agents and/or suspects intentionally

discharged their firearms during authorized ATF enforcement activities.

Conversely, although the discharge of a firearm at a canine or other animal

must be reported, it would not normally require a formal investigation.

If a formal shooting incident investigation is required, the OI Assistant

Director is to assign the necessary staff to conduct such an investigation.

According to an OI official, OI headquarters’ staff are generally to

investigate all incidents involving death or injury, while accidental

discharges of firearms are to be investigated by one of OI’s four regional

offices.3

 The assigned staff are to form a shooting incident review team

(SIRT) and are required to report to the scene of the incident as soon as

possible to begin their investigation. Under the previous procedures,

shooting incidents could be investigated by agents from disinterested4 ATF

field divisions, field divisions where the incidents occurred, or ATF

headquarters.

2

A SAR—referred to by ATF as a “KSAR”—is a report transmitted by teletype from an ATF field division

that notifies ATF headquarters of a sensitive/significant enforcement activity or incident.

3

OI’s four regional offices are located in Falls Church, VA; Atlanta, GA; Chicago, IL; and San Francisco,

CA.

4

A disinterested ATF field division is generally one adjacent to the division involved in the shooting

incident. For example, according to an OI official, the New Orleans field division would investigate a

shooting incident that occurred in the Chicago field division.

Page 117 GAO/GGD-96-17 ATF Use of Force
Appendix IV 

Procedures for Reporting, Investigating, and

Reviewing Shooting Incidents

SIRT Investigations Are

Fact-Finding in Nature

According to an OI official, when conducting its investigations of shooting

incidents, the SIRT is responsible for only gathering the facts related to a

particular incident. Specifically, the purpose of an investigation is to

(1) document compliance with ATF and Department of the Treasury

use-of-force policies, (2) establish a factual record for purposes of

potential tort claims or litigation resulting from the incident, and

(3) identify lessons learned. According to the OI official, a SIRT investigation

is not intended to reach any conclusions about responsibility for or

misconduct during a shooting incident. The investigation is also not to

recommend any changes in policy or recommend sanctions against those

violating use-of-force policies.

As part of its investigation, the SIRT is required to interview all agents and

other individuals with direct knowledge of the shooting incident. The SIRT

is also required to review training, equipment, and investigative issues, and

raid-planning, among others, related to the shooting incident. At the

conclusion of the review, the SIRT is to meet with the SAC of the field

division in which the shooting incident occurred to informally discuss its

preliminary results.

Shooting Incident Report When the SIRT concludes its investigation, it is required to prepare a

written SIR and submit it to the ATF Director, the Associate Director for

Enforcement, and other Assistant Directors as appropriate for an initial

management review. The report is to be submitted as soon as possible to

the OI Assistant Director, but no later than 30 days after the shooting

incident, unless directed otherwise by the OI Assistant Director. Upon

reviewing the SIR, the ATF Director, the Associate Director for

Enforcement, or the OI Assistant Director may mandate an additional

inquiry based on the information in the report.

The SIR is to include certain types of information, including (1) a synopsis

of the investigation and an overview of the shooting incident;

(2) background on the enforcement action preceding the shooting

incident; (3) information on the suspects and their actions and statements

before, during, and after the shooting; (4) a description of the firearms and

ammunition involved; (5) the basis for the decision to use deadly force;

and (6) the extent of injuries resulting from the shooting. The report is

also to include a list of exhibits, such as (1) copies of statements and

records of interview, (2) copies of operational plans, (3) schematics and

photographs of the shooting scene, and (4) copies of arrest and/or search

warrants.

Page 118 GAO/GGD-96-17 ATF Use of Force
Appendix IV 

Procedures for Reporting, Investigating, and

Reviewing Shooting Incidents

Certain Shooting

Investigations Are to

Be Reviewed by

Shooting Incident

Review Board

Certain SIRs are to be reviewed by ATF’s Shooting Incident Review Board

(SIRB). As part of the SIR review process, the OI Assistant Director is to

decide—on the basis of the nature and seriousness of the

incident—whether to submit a SIR to SIRB for review. SIRB was initiated by

the OI Assistant Director and is intended to provide an independent review

of SIRs by analyzing the circumstances related to shooting incidents that

involved ATF agents. SIRB may also be tasked with reviewing the actions of

other law enforcement personnel assisting ATF. SIRB is composed of the

following ATF officials: (1) the OI Assistant Director; (2) the Deputy

Associate Director for Criminal Enforcement Programs; (3) the two

Deputy Associate Directors for Criminal Enforcement Field Operations in

the West and East Regions, respectively; (4) the Associate Chief Counsel

for Litigation; (5) the Assistant Director for Training and Professional

Development; and (6) the Chief of the Special Operations Division. SIRB is

to be convened normally within 30 days after the submission of a SIR for

review.

SIRB members are to receive copies of the SIR before a formal meeting and

are to individually review and comment on its contents. SIRB members are

then to meet at ATF headquarters. During its meetings, SIRB is to determine

a finding, or conclusion, on three issues: (1) use of force, (2) compliance

with ATF policies and directives, and (3) the potential for agent negligence

or inappropriate conduct. On the basis of its findings, SIRB is to make

recommendations relative to needed changes to policy, directive,

equipment, training, supervision, and safety issues identified in the SIR. SIRB

may recommend such actions even if it determines that the shooting was

justified. SIRB’s recommendations are to be forwarded in writing to the

cognizant Directorate, such as Training or Enforcement, for

implementation. If SIRB finds the shooting was not justified and potential

misconduct by ATF agents, it may forward the matter to the Professional

Review Board.

In fiscal year 1995, SIRB reviewed eight shooting incident investigations.

Four of these incidents involved the intentional discharge of firearms by

agents, while the other four involved the accidental discharge of firearms

by agents. SIRB concluded that all four intentional shooting incidents were

justified.

Under the previous procedures, shooting incident reports were to be

reviewed by OE’s Special Operations Division. This division was to

evaluate a report’s conclusions and recommendations, obtain approval

Page 119 GAO/GGD-96-17 ATF Use of Force
Appendix IV 

Procedures for Reporting, Investigating, and

Reviewing Shooting Incidents

from its Assistant Director, and submit it to the cognizant Directorate for

implementation of the recommendations.

Cognizant Directorate

Responsible for

Implementing SIRB

Recommendations

Cognizant Directorates at ATF headquarters are responsible for

implementing SIRB’s recommendations. The head of the Directorate has 30

days to respond in writing describing the actions initiated to address the

issues identified by SIRB. For example, according to an OI official, the

Associate Director for Enforcement—through the SAC of the field division

involved in the shooting incident—is responsible for implementing

changes to training and operational policies as recommended by SIRB.

According to the official, OI maintains a file of recommendations that have

not been implemented and may advise the cognizant Directorate head if

the implementation of such recommendations is not proceeding in a

timely fashion—a reminder memorandum is usually sent to expedite the

action.

Page 120 GAO/GGD-96-17 ATF Use of Force
Appendix V 

DEA and FBI Data on Investigations,

Arrests, Shooting Incidents, and Staffing

Levels

This appendix presents DEA and FBI data on investigations, arrests,

shooting incidents, and staffing levels. The data for these agencies are not

comparable because of differences in their missions and in their

definitions of investigations.

DEA Table V.1 presents data on the number of (1) domestic investigations

initiated and (2) domestic arrests made by DEA special agents for fiscal

years 1990 through 1995. The table also presents data on the number of

intentional shooting incidents involving DEA agents and the agent staffing

levels at domestic field offices for the same period.

Table V.1: Data on DEA Investigations,

Arrests, Related Shooting Incidents,

and Agent Staffing Levels, FYs

1990-1995

Number of

FY Investigations Arrests

Shooting

incidents Agents

1990 15,273 23,082 n/a 2,233

1991 15,441 23,025 n/a 2,490

1992 17,247 24,689 n/a 2,812

1993 14,446 21,694 n/a 2,838

1994 13,145 21,497 3 2,775

1995 15,069 12,725 2 2,710

Total 90,621 126,712 5 a

Legend: N/A equals not available.

aThe agent staffing levels represent the average number for each fiscal year. Accordingly, the

total number of agents has not been calculated.

Source: DEA.

FBI Table V.2 presents data on the number of (1) investigations initiated and

(2) arrests made by FBI special agents for fiscal years 1990 through 1995.

The table also presents data on the number of intentional shooting

incidents involving FBI agents and the agent staffing levels at field offices

for the same period.

Page 121 GAO/GGD-96-17 ATF Use of Force
Appendix V 

DEA and FBI Data on Investigations,

Arrests, Shooting Incidents, and Staffing

Levels

Table V.2: Data on FBI Investigations,

Arrests, Related Shooting Incidents,

and Agent Staffing Levels, FYs

1990-1995

Number of

FY Investigations Arrests

Shooting

incidents Agents

1990 113,820 10,830 13 8,616

1991 114,083 11,981 19 9,008

1992 124,925 18,390 18 9,293

1993 130,554 25,134 10 9,176

1994 120,136 26,083 16 8,814

1995 110,423 26,653 13 8,897

Total 713,941 119,071 89 a

Legend: N/A equals not availbale.

aThe agent staffing levels represent the average number for each year. Accordingly, the total

number of agents has not been calculated.

Source: FBI.

Page 122 GAO/GGD-96-17 ATF Use of Force
Appendix VI 

Information on ATF Adverse Personnel

Actions Resulting From the Waco Operation

While we did not review the Department of the Treasury investigation of

ATF’s 1993 operation in Waco, TX, we did, as agreed with the

Subcommittee, obtain information on ATF’s adverse personnel actions

resulting from that investigation. According to ATF officials, ATF removed

two employees from employment as a result of the Waco incident.

According to these officials, the removals were based on ATF’s review of

the Treasury report on the operation. The report criticized the employees’

actions and performance during this operation. The two employees

appealed their removals to MSPB. Before a hearing on the matter could take

place, ATF reached a settlement with the employees. Under the terms of

the settlement, the employees were rehired in nonenforcement positions.

According to ATF officials, the decision to reach a settlement was based on

ATF’s evaluation of the probability of success in subsequent litigation, if the

individuals’ appeal to MSPB was successful. Accordingly, ATF provided a

written response—presented below—explaining its decisionmaking

process in this matter.

ATF’s Written

Response

“The Bureau’s number one priority in these cases was to assure that the two employees did

not occupy positions as supervisory special agents, so that they would not be in a position

to lead similar operations in the future. Settlement of the removal actions against these

individuals was the only way to absolutely guarantee that result.

“Had these cases proceeded to litigation, for several reasons the MSPB might well have

mitigated the removals. These reasons include the application of “Douglas” factors, which

are a series of factors applied by the MSPB to determine if discipline imposed by an agency

is reasonable. These factors include such things as an employee’s length of service and

prior disciplinary record. In addition, the Treasury Review identified a number of

institutional problems that may have contributed to their errors in judgment; these

employees were the lowest ranking officials faulted in the Review; and, in all likelihood, the

individuals would have presented the testimony of experts who would testify about the

impact of a major trauma on a person’s ability to accurately recall and recount the trauma.

Moreover, there was the strong possibility that a very significant charge—that of lying to

the investigators—might well have been reversed by the MSPB due to a recent Board case1

holding that an agency cannot charge an employee with the underlying misconduct and

also include as a separate charge the fact that the employee made false statements

regarding the misconduct.

“If the MSPB failed to sustain all of the charges, a strong likelihood existed that the Board

would mitigate the removals. Thus, instead of removal, they might have ordered that the

1

Walsh v. Department of Veterans Affairs, 62 M.S.P.R. 586 (1994).

Page 123 GAO/GGD-96-17 ATF Use of Force
Appendix VI 

Information on ATF Adverse Personnel

Actions Resulting From the Waco Operation

employees be suspended for some time, after which they would have to be returned to

their original positions as supervisory special agents. This was the result that the agency

felt was imperative to avoid.

“Even if the agency prevailed before the Board, the employees had the right to pursue an

appeal of the decision to the Court of Appeals for the Federal Circuit. In at least three

instances, that court has reversed MSPB decisions sustaining the removal of ATF employees,

who the agency believed had engaged in serious misconduct. In all three cases, the court

ordered the employees reinstated to their original positions.

“Finally, an MSPB trial would have been divisive, and emotionally difficult for the other

agents involved in the raid. The settlement agreements in this case presented a solution

that would allow ATF to accomplish with certainty its number one goal, would bring the

matter to closure, and would spare our employees the trauma of a trial.”

Page 124 GAO/GGD-96-17 ATF Use of Force
Appendix VII 

Major Contributors to This Report

General Government

Division, Washington,

D.C.

Daniel C. Harris, Project Director

Robert P. Glick, Project Manager

Thomas L. Davies, Senior Evaluator

Amy E. Lyon, Senior Evaluator

Seto J. Bagdoyan, Evaluator

Barry J. Seltser, Supervisory Social Science Analyst

Pamela V. Williams, Communications Analyst

Katherine M. Wheeler, Publishing Advisor

Office of the General

Counsel

Geoffrey R. Hamilton, Senior Attorney

(187013) Page 125 GAO/GGD-96-17 ATF Use of Force
Ordering Information

The first copy of each GAO report and testimony is free.

Additional copies are $2 each. Orders should be sent to the

following address, accompanied by a check or money order

made out to the Superintendent of Documents, when

necessary. VISA and MasterCard credit cards are accepted, also.

Orders for 100 or more copies to be mailed to a single address

are discounted 25 percent.

Orders by mail:

U.S. General Accounting Office

P.O. Box 6015

Gaithersburg, MD 20884-6015

or visit:

Room 1100

700 4th St. NW (corner of 4th and G Sts. NW)

U.S. General Accounting Office

Washington, DC

Orders may also be placed by calling (202) 512-6000 

or by using fax number (301) 258-4066, or TDD (301) 413-0006.

Each day, GAO issues a list of newly available reports and

testimony. To receive facsimile copies of the daily list or any

list from the past 30 days, please call (202) 512-6000 using a

touchtone phone. A recorded menu will provide information on

how to obtain these lists.

For information on how to access GAO reports on the INTERNET,

send an e-mail message with "info" in the body to:

info@www.gao.gov

PRINTED ON RECYCLED PAPER
United States

General Accounting Office

Washington, D.C. 20548-0001

Official Business

Penalty for Private Use $300

Address Correction Requested

Bulk Rate

Postage & Fees Paid

GAO

Permit No. G100