April 1996




             FBI Training on the New Federal Deadly Force Policy


                          By John C. Hall, J.D.


________________________


Special Agent Hall is a legal instructor at the FBI
Academy.
________________________


(Classroom instruction and practical application of
general principles provide the foundation for FBI
training on the new federal deadly force policy.)


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


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


Realistic training does not state general platitudes and
then leave officers to figure the rest out for
themselves. It provides clear principles to govern the
application of deadly force and then illustrates
appropriate application through practical examples.
Inadequate training can cause officers to use deadly
force when it is not appropriate. Conversely, it may
cause uncertainty and hesitation on the part of officers
in circumstances that increase the danger to themselves
and to the public.


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


NEW POLICY


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


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


   Law enforcement officers...of the Department of Justice
   may use deadly force only when necessary, that is, when
   the officer has a reasonable belief that the subject of
   such force poses an imminent danger of death or serious
   physical injury to the officer or to another person.
   (Emphasis added)


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


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


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


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


BASIC TRAINING PRINCIPLES


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


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


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


Trainees are given scenarios and challenged to determine
the propriety of using deadly force by using the
established criteria. After thorough discussion of their
responses, they are given a model response to illustrate
the appropriate application of the policy.
The third stage incorporates practical application of
the principles through use of interactive video
simulation and practical exercises using role players
and blank or paint firing weapons. The initial training
given at the FBI Academy is reinforced during an agent's
career through mandated annual training in the FBI field
offices.


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


                    INSTRUCTIONAL OUTLINE


I. INTRODUCTION


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


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


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


II. POLICY TEXT


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


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


B. Fleeing Subject: Deadly force may be used to prevent
the escape of a fleeing subject if there is probable
cause to believe: 1) The subject has committed a felony
involving the infliction or threatened infliction of
serious physical injury or death, and 2) the subject's
escape would pose an imminent danger of death or serious
physical injury to the agents or other persons.


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


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


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


III. DEFINITIONS


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


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


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


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


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


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


   d. The subject is attempting to escape from the
vicinity of a violent confrontation in which he
inflicted or attempted the infliction of death or
serious physical injury.
 
2. Safe Alternative: Absent a safe alternative, agents
are not required to use or consider alternatives that
increase danger to themselves or to others. If a safe
alternative to the use of deadly force is likely to
achieve the purpose of averting an imminent danger,
deadly force is not necessary. Among the factors
affecting the ability of agents to safely seize a
suspect, the following are relevant: 


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


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


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


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


IV. APPLICATION OF DEADLY FORCE


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


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


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


ILLUSTRATIVE SCENARIOS


Use of Force Permitted


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


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


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


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


Discussion: The use of deadly force is permitted.


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


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


In deciding whether to use deadly force in this
scenario, agents also should consider that the suspect
is fleeing in a neighborhood setting. Accordingly,
agents should assess whether its use creates a danger to
third parties that outweighs the likely benefits.
 
Relevant Factor: The subject is armed and running to
gain the tactical advantage of cover.


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


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


Discussion: The use of deadly force is permitted.


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


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


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


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


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


Discussion: The use of deadly force is permitted.


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


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


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


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


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


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


Discussion: The use of deadly force is permitted.
 
Necessity: The subject has demonstrated his
dangerousness by firing on the agents. Even though the
fugitive was seen to have lost his gun, the agents must
consider the possibility that the suspect possesses
another weapon. Moreover, his efforts to escape from the
vicinity of a violent confrontation in which he
inflicted or attempted infliction of death or serious
physical  injury supports probable cause to believe that
he poses an imminent danger to the agents or others.
 
There is no safe alternative to the use of deadly force
to prevent escape. Agents are not required to pursue a
demonstrably dangerous subject who has just attempted to
kill them. The subject ignored commands to surrender.


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


Use of Force Not Permitted


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


Relevant Factor: Suspect poses no imminent danger.


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


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


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


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


Relevant Factor: Another safe alternative is available.


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


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


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


Discussion: This use of deadly force violates FBI
policy.


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


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


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


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


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


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


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


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


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


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


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


________________


A copy of the FBI's new deadly force policy can be obtained
by submitting a request on department letterhead to the
Legal Instruction Unit, FBI Academy, Quantico, VA 22135.


                   _______________________