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Use of Force: ATF Policy, Training and Review Process Are Comparable to DEA's and FBI's (Chapter Report, 03/29/96, GAO/GGD-96-17).

Pursuant to a congressional request, GAO reviewed the Bureau of Alcohol,
Tobacco, and Firearms' (ATF) use of deadly force and dynamic entry,
focusing on: (1) ATF policies on 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 what equipment it uses; (4) ATF
compliance with its procedures for investigating shooting and alleged
excessive force incidents; and (5) how the Drug Enforcement
Administration (DEA) and the Federal Bureau of Investigation (FBI)
address similar issues.

GAO found that: (1) except for a few instances, the 1988 ATF policy on
deadly force was consistent with prior DEA and FBI policies and the 1995
Departments of the Treasury and Justice uniform policies which
superceded their agencies' policies; (2) agents may use deadly force
only when they reasonably believe that suspects pose an imminent threat
of death or serious injury to themselves or other persons; (3) the three
agencies' new agent training in their deadly force policies is similar
and all agents are required to be retrained on a quarterly basis
throughout their careers; (4) dynamic entry is used to ensure personal
safety when access to premises is needed in high-risk situations or when
suspects might swiftly destroy evidence; (5) the three agencies' method
of dynamic entry and weaponry and equipment used was similar; (6) ATF
reporting, investigating, and review procedures for shooting and
excessive force incidents are consistent with recommended standards and
similar to the other agencies'; (7) ATF and DEA excessive force
procedures are generally comparable, but FBI procedures require that all
allegations be submitted to Justice for possible criminal or civil
rights violations before the allegations are self-investigated; (8) ATF
generally complied with its investigative procedures during fiscal years
1990 through 1995; (9) ATF found that all intentional shootings were
justified, most allegations of excessive force were unsubstantiated, and
5 agents warranted sanctioning for misconduct; and (1O) ATF is
implementing lessons learned from the incidents, particularly the Waco,
Texas, raid.

--------------------------- Indexing Terms -----------------------------

 REPORTNUM:  GGD-96-17
     TITLE:  Use of Force: ATF Policy, Training and Review Process Are
             Comparable to DEA's and FBI's
      DATE:  03/29/96
   SUBJECT:  Law enforcement agencies
             Search and seizure
             Crimes or offenses
             Firearms
             Human resources training
             Law enforcement personnel
             Arrests
             Constitutional rights
             Investigations by federal agencies
IDENTIFIER:  Waco (TX)
             FBI Firearms Training System
             ATF Inventory Tracking and Equipment Management System
             ATF On-the-Job Training Program
             Federal Law Enforcement Training Center Criminal
             Investigator Training Program
             Federal Law Enforcement Training Center Use of Force Model
             M16 Automatic Weapon

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Cover
================================================================ COVER


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

GAO/GGD-96-17

ATF Use of Force

(187013)


Abbreviations
=============================================================== ABBREV

  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

Letter
=============================================================== LETTER


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
============================================================ Chapter 0


   PURPOSE
---------------------------------------------------------- Chapter 0:1

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
---------------------------------------------------------- Chapter 0:2

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 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     FY     FY     FY     FY     FY
                               1990   1991   1992   1993   1994   1995
----------------------------  -----  -----  -----  -----  -----  -----
Total investigations          11,74  13,73  15,11  13,47  11,96  10,50
                                  1      5      7      9      5      5
Suspects arrested             7,104  8,301  8,631  6,607  9,595  6,692
ATF shooting                      4      9      9      2      8      7
 incidents\a
Alleged excessive force           3      2      5      3      8      4
 incidents\b
----------------------------------------------------------------------
\a Reported intentional shootings at suspects by ATF agents.

\b Reported alleged excessive force incidents involving ATF agents.

Source:  ATF.


   RESULTS IN BRIEF
---------------------------------------------------------- Chapter 0:3

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 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.


   PRINCIPAL FINDINGS
---------------------------------------------------------- Chapter 0:4


      ATF'S DEADLY FORCE POLICIES
      HAVE REMAINED GENERALLY
      CONSISTENT IN RECENT YEARS
      AND ARE GENERALLY CONSISTENT
      WITH FBI AND DEA POLICIES
-------------------------------------------------------- Chapter 0:4.1

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.)


      ATF, DEA, AND FBI CONVEY
      DEADLY FORCE POLICIES TO
      THEIR AGENTS IN SIMILAR WAYS
-------------------------------------------------------- Chapter 0:4.2

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
-------------------------------------------------------- Chapter 0:4.3

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 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.)

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.)


--------------------
\1 ATF did not compile data for suspects armed at arrest for fiscal
years 1990 and 1991.


      ATF COMPLIED WITH ITS
      PROCEDURES FOR INVESTIGATING
      SHOOTING AND ALLEGED
      EXCESSIVE FORCE INCIDENTS
-------------------------------------------------------- Chapter 0:4.4

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.)

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 review\2 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.)


--------------------
\2 A document maintained in the investigative file that indicates who
reviewed the file and, where applicable, any annotated comments
resulting from the review.


   RECOMMENDATIONS
---------------------------------------------------------- Chapter 0:5

GAO is making no recommendations in this report.


   AGENCY COMMENTS
---------------------------------------------------------- Chapter 0:6

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 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.)


INTRODUCTION
============================================================ Chapter 1

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
---------------------------------------------------------- Chapter 1:1

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.

   Figure 1.1:  ATF Organization
   Chart, as of January 1996

   (See figure in printed
   edition.)

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.



                               Table 1.1

                  Investigations Initiated by ATF, FYs
                               1990-1995

                                 FY     FY     FY     FY     FY     FY
Investigation type             1990   1991   1992   1993   1994   1995
----------------------------  -----  -----  -----  -----  -----  -----
Firearms                      9,753  11,74  12,59  10,48  9,227  7,606
                                         5      8      9
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                         11,74  13,73  15,11  13,47  11,96  10,50
                                  1      5      7      9      5      5
----------------------------------------------------------------------
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

                                 FY     FY     FY     FY     FY     FY
Investigation type             1990   1991   1992   1993   1994   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?
---------------------------------------------------------- Chapter 1:2

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 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 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
---------------------------------------------------------- Chapter 1:3

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
-------------------------------------------------------- Chapter 1:3.1

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.


      OBJECTIVE 2
-------------------------------------------------------- Chapter 1:3.2

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 System\1 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;
Washington, D.C.; and Los Angeles\2 --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.


--------------------
\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.

\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.


      OBJECTIVE 3
-------------------------------------------------------- Chapter 1:3.3

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.

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
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
-------------------------------------------------------- Chapter 1:3.4

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 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 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.


--------------------
\3 We did not review the Waco incident.  No ATF file existed because
Treasury investigated the incident.


      ADDITIONAL ISSUES
-------------------------------------------------------- Chapter 1:3.5

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
---------------------------------------------------------- Chapter 1:4

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 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.


TREASURY AND JUSTICE USE OF DEADLY
FORCE POLICIES HAVE BEEN ADOPTED
TO REFLECT SUPREME COURT GUIDANCE
AND ARE GENERALLY CONSISTENT
============================================================ Chapter 2

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.


--------------------
\1 Treasury and Justice issued written comments discussing and
elaborating upon their 1995 use of deadly force policies.


   STATE RULES AND SUPREME COURT
   GUIDANCE ON THE USE OF DEADLY
   FORCE
---------------------------------------------------------- Chapter 2:1


      STATE RULES HAVE VARIED
-------------------------------------------------------- Chapter 2:1.1

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 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 felonies\3
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 Institute\6 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 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


--------------------
\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).

\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.

\7 American Law Institute, Model Penal Code, section 3.07(2)(b).

\8 Tennessee v.  Garner, 471 U.S.  1, 18 (1985).


      TWO SUPREME COURT CASES HAVE
      PROVIDED SOME GUIDANCE ON
      THE USE OF DEADLY FORCE
-------------------------------------------------------- Chapter 2:1.2

In the 1985 Tennessee v.  Garner decision\9 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 Amendment\11
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 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.

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 test\14 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.


--------------------
\9 Garner, 471 U.S.  1 (1985).

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

\11 The 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).

\12 Garner, 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).

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

\14 The 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.


   TREASURY AND JUSTICE HAVE
   ADOPTED UNIFORM POLICIES ON THE
   USE OF DEADLY FORCE
---------------------------------------------------------- Chapter 2:2

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

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.


--------------------
\15 The 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.

\16 The Department of the Treasury, Uniform Policy on the Use of
Force, Treasury Order No.  105-12, section (4)(a) (1995).

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


   ATF'S 1988 POLICY ON THE USE OF
   DEADLY FORCE WAS GENERALLY
   CONSISTENT WITH THE 1995
   TREASURY POLICY
---------------------------------------------------------- Chapter 2:3

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

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."


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


   ATF'S 1988 POLICY ON THE USE OF
   DEADLY FORCE WAS GENERALLY
   CONSISTENT WITH PRIOR DEA AND
   FBI POLICIES
---------------------------------------------------------- Chapter 2:4

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 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.


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

\20 Manual 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.


   CONCLUSIONS
---------------------------------------------------------- Chapter 2:5

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.


ATF, DEA, AND FBI CONVEY DEADLY
FORCE POLICIES TO THEIR AGENTS IN
SIMILAR WAYS
============================================================ Chapter 3

Use of deadly force training provided new ATF agents at FLETC\1

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.


--------------------
\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.


   INITIAL TRAINING IS DESIGNED TO
   ESTABLISH THE FOUNDATION FOR
   NEW ATF AGENTS' UNDERSTANDING
   OF USE-OF-FORCE POLICIES
---------------------------------------------------------- Chapter 3:1

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
-------------------------------------------------------- Chapter 3:1.1

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 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.


--------------------
\2 Exceptions are made for new agents who have transferred from other
law enforcement agencies and have completed equivalent training.


         USE-OF-FORCE TRAINING
------------------------------------------------------ Chapter 3:1.1.1

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
------------------------------------------------------ Chapter 3:1.1.2

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.



                               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        Low-level physical tactics, such
level)                              as grabbing a suspect's arm

(3)Active resistance (yellow        Use of come-along holds, pressure
level)                              points, and chemical sprays

(4)Assaultive with the potential    Defensive tactics, such as
for bodily harm (orange level)      striking maneuvers with the hands
                                    or a baton

(5)Assaultive with the potential    Deadly force
for serious bodily harm or death
(red level)
----------------------------------------------------------------------
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

   (See figure in printed
   edition.)

Source:  FLETC.


         OTHER CITP COURSES THAT
         ADDRESS USE OF FORCE AND
         DEADLY FORCE
------------------------------------------------------ Chapter 3:1.1.3

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 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
-------------------------------------------------------- Chapter 3:1.2

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.


--------------------
\3 Use-of-force policies, including deadly force, are contained in
ATF's Firearms Policy, ATF Order 3000.8.


      ATF ON-THE-JOB TRAINING
-------------------------------------------------------- Chapter 3:1.3

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 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
---------------------------------------------------------- Chapter 3:2

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 lecture\4 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 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.


--------------------
\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.


   AGENTS ARE TO BE KEPT AWARE OF
   USE-OF-FORCE POLICIES AT
   TACTICAL OPERATIONS BRIEFINGS
   AND AT QUARTERLY FIREARMS
   QUALIFICATIONS
---------------------------------------------------------- Chapter 3:3

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
-------------------------------------------------------- Chapter 3:3.1

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.


      QUARTERLY FIREARMS TRAINING
-------------------------------------------------------- Chapter 3:3.2

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 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.


--------------------
\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).


   DISSEMINATING THE REVISED
   TREASURY USE-OF-FORCE POLICY
---------------------------------------------------------- Chapter 3:4

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
---------------------------------------------------------- Chapter 3:5

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 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.


ATF, DEA, AND FBI OFTEN USE
DYNAMIC ENTRIES AND COMPARABLE
EQUIPMENT TO EXECUTE HIGH-RISK
WARRANTS
============================================================ Chapter 4

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 operation\1 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.


--------------------
\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.


   DYNAMIC ENTRY IS A PRINCIPAL
   TACTIC USED BY ATF DURING
   HIGH-RISK SEARCH AND ARREST
   WARRANT OPERATIONS
---------------------------------------------------------- Chapter 4:1

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 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
-------------------------------------------------------- Chapter 4:1.1

ATF has established an SRT in each of its 24 criminal enforcement
field divisions\2 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.



                               Table 4.1

                     SRT Deployments, FYs 1993-1995


                                Percen          Percen          Percen
Reason for deployment   Number       t  Number       t  Number       t
----------------------  ------  ------  ------  ------  ------  ------
Search warrant             150      69      97      66      68      43
Arrest warrant              21      10      13       9      23      15
Both search and arrest      25      12      22      15      38      24
 warrants (at same
 time)
Other (undercover           22      10      16      11      28      18
 operations, etc.)
======================================================================
Total                      218   100\a    48 1  00\a 1      57   100\a
                                     1
----------------------------------------------------------------------
\a Does 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.


--------------------
\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).


      DYNAMIC ENTRIES AND OTHER
      TACTICS USED TO PROMOTE
      SAFETY
-------------------------------------------------------- Chapter 4:1.2

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

  "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 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 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.


--------------------
\3 Some divisions were using similar risk assessment forms before
being directed to do so by the Tactical Response Branch.

\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.


      ATF AGENTS AND SRTS ARE TO
      BE TRAINED IN DYNAMIC ENTRY
      AND OTHER TACTICS
-------------------------------------------------------- Chapter 4:1.3

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 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 observers\6 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.


--------------------
\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.


      ATF MOST OFTEN USED DYNAMIC
      ENTRY TACTIC IN HIGH-RISK
      SEARCH AND ARREST WARRANT
      SERVICES
-------------------------------------------------------- Chapter 4:1.4

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.

   Figure 4.1:  Primary Entry
   Tactic Used During SRT
   Deployments in FY 1995

   (See figure in printed
   edition.)

Note:  Does not add to 100 percent due to rounding.

\a Includes 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.

\b Includes 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 intentional\7 shooting incidents, one of
which resulted in fatalities.



                               Table 4.2

                SRT Intentional Shooting Incidents, FYs
                               1993-1995

                                                    FY      FY      FY
                                                  1993    1994    1995
----------------------------------------------  ------  ------  ------
SRT intentional shooting incidents                 1\a       1       1
----------------------------------------------------------------------
\a The Waco operation.

Source:  GAO analysis of ATF Shooting Incident Reports, fiscal years
1993 through 1995.

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.


--------------------
\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.

\8 ATF did not compile data for suspects armed at arrest for fiscal
years 1990 and 1991.


      FBI AND DEA ALSO USE DYNAMIC
      ENTRIES FOR HIGH-RISK SEARCH
      AND ARREST WARRANTS
-------------------------------------------------------- Chapter 4:1.5

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 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
---------------------------------------------------------- Chapter 4:2

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
-------------------------------------------------------- Chapter 4:2.1

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) spray\9

and expandable tactical batons.  According to ATF policy, agents are
to be assigned a 9mm semi-automatic\10 pistol as their primary duty
weapon, and, if requested, a revolver as a backup weapon.  Divisional
offices or agents also are to be issued shotguns, semi-automatic
rifles (e.g., Colt AR15s), and tactical carbines\11

(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 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 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.


--------------------
\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.

\10 A 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.

\11 A modern repeating rifle that is shorter and lighter than the
standard rifle and fires lighter ammunition.

\12 A 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.


      SRTS USE VEHICLES AND
      AIRCRAFT FOR DEPLOYMENT AND
      SURVEILLANCE
-------------------------------------------------------- Chapter 4:2.2

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 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 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
-------------------------------------------------------- Chapter 4:2.3

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.

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 balaclavas\14 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.


--------------------
\13 According 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.

\14 A balaclava is a knit hood covering the head and neck.


      ATF EQUIPMENT IS GENERALLY
      COMPARABLE TO FBI'S AND
      DEA'S
-------------------------------------------------------- Chapter 4:2.4

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 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
---------------------------------------------------------- Chapter 4:3

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.


ATF COMPLIED WITH ITS PROCEDURES
FOR INVESTIGATING SHOOTING AND
ALLEGED EXCESSIVE FORCE INCIDENTS
============================================================ Chapter 5

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 review\2 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.


--------------------
\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.


   ATF PROCEDURES ARE CONSISTENT
   WITH RECOMMENDED GUIDELINES AND
   STANDARDS AND ARE GENERALLY
   COMPARABLE TO THOSE EMPLOYED BY
   DEA AND FBI
---------------------------------------------------------- Chapter 5:1

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.


      PROCEDURES FOR REPORTING,
      INVESTIGATING, AND REVIEWING
      SHOOTING INCIDENTS
-------------------------------------------------------- Chapter 5:1.1

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 OI\4 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).

   Figure 5.1:  Procedures for
   Reporting, Investigating, and
   Reviewing Shooting Incidents

   (See figure in printed
   edition.)



   (See figure in printed
   edition.)

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.

   Figure 5.2:  Investigative
   Procedures for Shooting
   Incidents

   (See figure in printed
   edition.)

Note:  OI Office of Inspection
SAC Special Agent-in-Charge
SIR Shooting Incident Report

Source:  GAO analysis of ATF data.


--------------------
\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.


         SHOOTING INCIDENT
         PROCEDURES ARE CONSISTENT
         WITH RECOMMENDED
         GUIDELINES AND STANDARDS
------------------------------------------------------ Chapter 5:1.1.1

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 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
------------------------------------------------------ Chapter 5:1.1.2

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 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


--------------------
\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.

\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.


      PROCEDURES FOR REPORTING,
      INVESTIGATING, AND REVIEWING
      EXCESSIVE FORCE ALLEGATIONS
-------------------------------------------------------- Chapter 5:1.2

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


--------------------
\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.


         PROCEDURES FOR REPORTING
         AND INVESTIGATING
         EXCESSIVE FORCE
         ALLEGATIONS
------------------------------------------------------ Chapter 5:1.2.1

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 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.

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.


--------------------
\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.


         PROCEDURES FOR REVIEWING
         USE OF EXCESSIVE FORCE
         INVESTIGATIONS
------------------------------------------------------ Chapter 5:1.2.2

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 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


--------------------
\10 Adverse 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.

\11 As 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.


         EXCESSIVE FORCE INCIDENT
         PROCEDURES ARE CONSISTENT
         WITH RECOMMENDED
         GUIDELINES AND STANDARDS
------------------------------------------------------ Chapter 5:1.2.3

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
------------------------------------------------------ Chapter 5:1.2.4

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 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 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
-------------------------------------------------------- Chapter 5:1.3

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
------------------------------------------------------ Chapter 5:1.3.1

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 litigation\13 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 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, 53 resulted from property damage caused
during the execution of warrants, 8 resulted from shooting incidents,
and 55\17 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.


--------------------
\12 Provisions of FTCA appear at 28 U.S.C., sections 2671-2680 and
other scattered sections of 28 U.S.C.

\13 The 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.

\14 A "sum certain" claim clearly identifies a monetary amount for
damages or injuries.

\15 28 C.F.R.  14.2 (b) (2).

\16 The 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.

\17 Of 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.


         CIVIL LITIGATION PROCESS
------------------------------------------------------ Chapter 5:1.3.2

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 decision\18 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 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 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.


--------------------
\18 Bivens v.  Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 U.S.  388 (1971).

\19 Certain lawsuits involved more than one allegation.

\20 Of 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.

\21 Of 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.


   ATF COMPLIED WITH ITS
   INVESTIGATIVE PROCEDURES
---------------------------------------------------------- Chapter 5:2

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 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
-------------------------------------------------------- Chapter 5:2.1

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

                                                             Number of
FY                                                  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 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

                                                   Number of excessive
FY                                                     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.

  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
and privacy issues.  Complainants are required to provide medical
reports only for incidents that result in tort claims.


--------------------
\22 Since 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.

\23 ATF refers to this report as a KSAR.


         ATF FOUND ALL SHOOTINGS
         TO BE JUSTIFIED
------------------------------------------------------ Chapter 5:2.1.1

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.


         ATF FOUND MOST
         ALLEGATIONS OF USE OF
         EXCESSIVE FORCE TO BE
         UNSUBSTANTIATED
------------------------------------------------------ Chapter 5:2.1.2

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.

  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
------------------------------------------------------ Chapter 5:2.1.3

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 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
-------------------------------------------------------- Chapter 5:2.2

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.  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
---------------------------------------------------------- Chapter 5:3

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
-------------------------------------------------------- Chapter 5:3.1

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.


      EXAMPLES OF LESSONS LEARNED
      BEING IMPLEMENTED
-------------------------------------------------------- Chapter 5:3.2

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
-------------------------------------------------------- Chapter 5:3.3

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 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 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
---------------------------------------------------------- Chapter 5:4

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.




(See figure in printed edition.)Appendix I
TREASURY AND JUSTICE 1995 UNIFORM
USE OF DEADLY FORCE POLICIES AND
ATF, DEA, AND FBI PRIOR POLICIES
============================================================ Chapter 5



(See figure in printed edition.)



(See figure in printed edition.)



(See figure in printed edition.)



(See figure in printed edition.)



(See figure in printed edition.)



(See figure in printed edition.)



(See figure in printed edition.)


EXAMPLES OF USE-OF-FORCE SCENARIOS
USED TO TRAIN NEW AGENTS
========================================================== Appendix II

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
------------------------------------------------------ Appendix II:0.1


         SITUATION
---------------------------------------------------- Appendix II:0.1.1

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
---------------------------------------------------- Appendix II:0.1.2

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
------------------------------------------------------ Appendix II:0.2


         SITUATION
---------------------------------------------------- Appendix II:0.2.1

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 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
---------------------------------------------------- Appendix II:0.2.2

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
------------------------------------------------------ Appendix II:0.3


         SITUATION
---------------------------------------------------- Appendix II:0.3.1

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
---------------------------------------------------- Appendix II:0.3.2

In this example, the officer was placed at a level of great bodily
harm and/or death; therefore, such force was proper.


      SCENARIO 4
------------------------------------------------------ Appendix II:0.4


         SITUATION
---------------------------------------------------- Appendix II:0.4.1

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
---------------------------------------------------- Appendix II:0.4.2

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 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
------------------------------------------------------ Appendix II:0.5


         SITUATION
---------------------------------------------------- Appendix II:0.5.1

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
---------------------------------------------------- Appendix II:0.5.2

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
------------------------------------------------------ Appendix II:0.6


         SITUATION
---------------------------------------------------- Appendix II:0.6.1

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
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
---------------------------------------------------- Appendix II:0.6.2

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
------------------------------------------------------ Appendix II:0.7


         SITUATION
---------------------------------------------------- Appendix II:0.7.1

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
---------------------------------------------------- Appendix II:0.7.2

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
------------------------------------------------------ Appendix II:0.8


         SITUATION
---------------------------------------------------- Appendix II:0.8.1

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
---------------------------------------------------- Appendix II:0.8.2

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
------------------------------------------------------ Appendix II:0.9


         SITUATION
---------------------------------------------------- Appendix II:0.9.1

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 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
---------------------------------------------------- Appendix II:0.9.2

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.


CASE EXAMPLES OF ATF SRT TACTICAL
OPERATIONS
========================================================= Appendix III

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
------------------------------------------------------- Appendix III:1


      VEHICLE STOP OF SUSPECT AND
      STEALTH ENTRY INTO PREMISE
----------------------------------------------------- Appendix III:1.1

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 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
----------------------------------------------------- Appendix III:1.2

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 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
----------------------------------------------------- Appendix III:1.3

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
----------------------------------------------------- Appendix III:1.4

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 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
----------------------------------------------------- Appendix III:1.5

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.

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 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.


PROCEDURES FOR REPORTING,
INVESTIGATING, AND REVIEWING
SHOOTING INCIDENTS
========================================================== Appendix IV

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
-------------------------------------------------------- Appendix IV:1

ATF agents are required to report both the intentional or
accidental\1 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.


--------------------
\1 "Accidental" refers to the unintentional discharge of a firearm by
a law enforcement officer due to human error or equipment
malfunction.


   REPORTING PROCEDURES FOR
   SHOOTING INCIDENTS
-------------------------------------------------------- Appendix IV:2

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
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.


--------------------
\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.


   INVESTIGATIVE PROCEDURES FOR
   SHOOTING INCIDENTS
-------------------------------------------------------- Appendix IV:3

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
disinterested\4 ATF field divisions, field divisions where the
incidents occurred, or ATF headquarters.


--------------------
\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.


      SIRT INVESTIGATIONS ARE
      FACT-FINDING IN NATURE
------------------------------------------------------ Appendix IV:3.1

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
------------------------------------------------------ Appendix IV:3.2

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.


   CERTAIN SHOOTING INVESTIGATIONS
   ARE TO BE REVIEWED BY SHOOTING
   INCIDENT REVIEW BOARD
-------------------------------------------------------- Appendix IV:4

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
from its Assistant Director, and submit it to the cognizant
Directorate for implementation of the recommendations.


      COGNIZANT DIRECTORATE
      RESPONSIBLE FOR IMPLEMENTING
      SIRB RECOMMENDATIONS
------------------------------------------------------ Appendix IV:4.1

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.


DEA AND FBI DATA ON
INVESTIGATIONS, ARRESTS, SHOOTING
INCIDENTS, AND STAFFING LEVELS
=========================================================== Appendix V

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
--------------------------------------------------------- Appendix V:1

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


                                                    Shooting
                              Investigat            incident
FY                                  ions   Arrests         s    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.

\a The agent staffing levels represent the average number for each
fiscal year.  Accordingly, the total number of agents has not been
calculated.

Source:  DEA.


   FBI
--------------------------------------------------------- Appendix V:2

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.



                               Table V.2

                  Data on FBI Investigations, Arrests,
                 Related Shooting Incidents, and Agent
                     Staffing Levels, FYs 1990-1995


                                                    Shooting
                              Investigat            incident
FY                                  ions   Arrests         s    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.

\a The agent staffing levels represent the average number for each
year.  Accordingly, the total number of agents has not been
calculated.

Source:  FBI.


INFORMATION ON ATF ADVERSE
PERSONNEL ACTIONS RESULTING FROM
THE WACO OPERATION
========================================================== Appendix VI

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
-------------------------------------------------------- Appendix VI:1

     "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 case\1 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
     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."


--------------------
\1 Walsh v.  Department of Veterans Affairs, 62 M.S.P.R.  586 (1994).


MAJOR CONTRIBUTORS TO THIS REPORT
========================================================= Appendix VII

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


*** End of document. ***