Law Enforcement: Federal Agencies Should Improve Reporting and Review of Less-Lethal Force

GAO-22-104470 Published: Dec 15, 2021. Publicly Released: Dec 15, 2021.
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Fast Facts

Federal agencies deployed law enforcement and other personnel during protests following George Floyd's death. Many used less-lethal force—tactics and weapons that are not intended to cause death or serious injury, such as tear gas and rubber bullets.

We examined, among other things, how 10 agencies reviewed their use of this force in Washington, D.C., and Portland, OR.

  • 8 used less-lethal force
  • Use-of-force reports often didn't include basic information such as the circumstances of use
  • Agencies mostly found that force was used properly, but some didn't document whether policy was followed

Our 10 recommendations address these and other issues.

Federal personnel deployed to a demonstration in Washington, D.C.

Federal police officers in helmets lined up at a Washington, D.C. plaza

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Highlights

What GAO Found

Less-lethal force includes tactics and weapons that are neither likely nor intended to cause death or serious injury such as physical tactics, batons, chemical spray and munitions (e.g., pepper spray and tear gas), and kinetic impact munitions (e.g., rubber bullets). Most of the 10 federal agencies that GAO reviewed have less-lethal force policies that apply to demonstrations. All 10 agencies provide their personnel with less-lethal force training that varied by the agencies' mission. The agencies reported that they equip their personnel on various types of less-lethal force. Further, all 10 agencies have policies and training related to ensuring that their use of less-lethal force minimizes unintended injuries.

Examples of Less-Lethal Force

Examples of Less-Lethal Force

The Bureau of Prisons (BOP) is the only agency without a less-lethal force policy that applies to demonstrations. Its policy focuses exclusively on inmates in federal institutions. However, in recent years, BOP deployments beyond its institutions have occurred more often in response to civil disturbances and natural disasters. Updating its policy to address such situations will help ensure that their policy addresses all potential use of force situations facing its personnel.

As shown in the photographs below, federal personnel responded to the demonstrations in Washington, D.C., and Portland, Oregon.

Federal Personnel in Washington, D.C. (left), and Portland, Oregon (right)

Examples of Less-Lethal Force

Eight of the 10 agencies used less-lethal force during the selected deployments. For those eight agencies, reporting requirements varied and reports often did not include basic information.

  • Reporting requirements varied among agencies within the Departments of Homeland Security (DHS) and Justice (DOJ). This variance impairs departmental oversight. For example, while some agencies require personnel to report their use of a baton in all cases, others in the same department required doing so only if there were serious injury.
  • Most agencies' less-lethal force reporting was missing information that would be useful for determining if the force was applied in accordance with agency policy. Specifically, reports from six agencies— Federal Protective Service, U.S. Customs and Border Protection, U.S. Immigration and Customs Enforcement (ICE), U.S. Secret Service (USSS), U.S. Marshals Service (USMS), and U.S. Park Police (USPP)—were missing basic information, such as time, location, type of munition used, or circumstances surrounding the use of force. For example, some reports provided a high-level summary of the day but did not identify which officers used force or the types of force each officer used. Further, DHS's oversight over the quality and consistency of use of force reporting was impaired because the department has not established a body to monitor use of force reporting across all of its component agencies, as required by DHS policy.

All 10 agencies had processes to determine if less-lethal force was applied in accordance with agency policy, but some of the eight agencies that reported using less-lethal force during selected deployments did not explicitly document their determinations. Specifically,

  • USMS, ICE, and USSS did not document if force was used in accordance with policy. Documenting such reviews will help ensure that they review all reportable uses of less-lethal force.
  • The remaining five agencies that did document less-lethal force determinations—Federal Protective Service, U.S. Customs and Border Protection; BOP; Bureau of Alcohol, Tobacco, Firearms, and Explosives; and USPP—found that nearly all of their incidents were in accordance with policy. The remaining incidents were referred to the relevant Offices of the Inspector General or were pending further administrative actions as of July 2021.

Demonstrators in Washington, D.C. (left), and Portland, Oregon (right)

Examples of Less-Lethal Force

Several federal agencies deployed personnel to Washington, D.C., and Portland, Oregon, in response to the demonstrations.

  • Washington, D.C. At least 12 federal agencies deployed, collectively, up to about 9,300 personnel per day in response to the demonstrations from May 26, 2020, through June 15, 2020. Of these, six agencies reported a total of over 120 less-lethal force incidents during this period, including physical tactics, batons, chemical spray, and chemical and kinetic impact munitions. Three of these agencies (BOP, USPP, and USSS) reported using force as part of the effort to clear Lafayette Square on June 1, 2020.
  • Portland, Oregon. At least five federal agencies deployed, collectively, up to about 325 personnel per day in response to the demonstrations from June 26, 2020, through September 30, 2020. Four agencies reported a total of over 700 less-lethal force incidents during this period, including batons, chemical spray, chemical and kinetic impact munitions, diversionary devices, and electronic control devices.

Why GAO Did This Study

Federal agencies deployed personnel and used less lethal force during demonstrations in response to the death of Mr. George Floyd and others. Two of the largest deployments were in Washington, D.C., and Portland, Oregon.

This report examines the extent to which federal agencies (1) developed policies, procedures, and training on the use of less-lethal force during demonstrations; (2) reported their use of such force during deployments to Washington, D.C., and Portland, Oregon; and (3) took action to review their use of less-lethal force for these deployments. GAO also presents information on the federal roles and activities during these deployments.

To address these objectives, GAO identified 10 federal agencies that used less-lethal force or deployed large numbers of personnel in Washington, D.C., and Portland, Oregon, from May through September 2020. Specifically, GAO identified four agencies within DHS, four agencies within DOJ, the U.S. Park Police within the Interior, and the National Guard within the Department of Defense. GAO reviewed agency guidance on less-lethal force; analyzed use of force reports and determinations on whether the force was used in accordance with policy; and interviewed agency officials.

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Recommendations

GAO is making 10 recommendations, including that:

  • BOP update its use of force policy to include demonstrations occurring near and far from federal institutions;
  • DHS and DOJ develop standards for their component agencies on the types of less-lethal force that should be reported when used;
  • DHS develop standards for its component agencies on the types of information that must be reported for each use of force incident;
  • DHS establish monitoring mechanisms to oversee the quality, consistency, and completeness of use of force reporting across all DHS component agencies;
  • USMS and USPP develop specific reporting requirements on the types of information that must be reported for each use of force incident; and
  • ICE, USMS, and USSS modify policies and procedures to document their determinations on whether less-lethal force was used in accordance with agency policy.

DOJ, DHS, and the Interior concurred with all of the recommendations to their department and component agencies.

Recommendations for Executive Action

Agency Affected Recommendation Status
Bureau of Prisons The Director of BOP should update BOP's use of force policy to address the use of force during demonstrations occurring near and far from federal institutions. (Recommendation 1)
Open
In August 2022, Department of Justice officials stated that the Bureau of Prisons is planning to update its use of force policy following the update of the Department of Justice's department-wide use of force policy in May 2022. As of August 2022, the department did not provide an estimated timeframe from when the Bureau of Prisons policy will be updated. We will continue to request updates from the department as it takes actions to address our recommendation.
Department of Homeland Security The Secretary of Homeland Security should develop standards for its component agencies on the types of less-lethal force that should be reported when used. (Recommendation 2)
Open
In June 2022, DHS officials stated that the DHS Office of Strategy, Policy, and Plans (DHS Policy) led a working group under the Law Enforcement Coordination Council that developed a baseline set of data points and a reporting template for all DHS law enforcement components and offices. This data is to be reported to DHS Policy, which will use the data for inclusion in Federal Bureau of Investigation's use of force data collection and public-facing website. As part of its efforts, the working group defined which incidents are reportable, to include, for example, any injury or death to an officer, suspect, or bystander; any intentional deployment of a less-lethal device against a suspect; and any use of a vehicle, weapon, or physical tactic or technique that delivers a kinetic impact to a subject. However, the working group's requirements do not define key terms, such as less-lethal device or injury, which may lead to components applying different interpretations that would result in non-comparable data. Further, the working group's requirements have not been incorporated into DHS's department-wide use of force policy. According to DHS Policy officials, they defer to the components to change internal policies to match the new requirements. As of December 2022, we have requested additional information on the department's efforts, including how the department is ensuring that they are collecting and reporting use of force for the same types of less-lethal force. We continue to believe that enhancing its department-wide use of force policy by identifying the types of less-lethal force that officers must report will help ensure that DHS is collecting consistent information on use of force across its agencies. Doing so will also improve the department's ability to oversee and make informed decisions in the implementation of its use of force policy.
Department of Justice The Attorney General should develop standards for its component agencies on the types of less-lethal force that should be reported when used. (Recommendation 3)
Open
Although the department updated its use of force policy in May 2022, the updated policy did not include standards for its component agencies on the types of less-lethal force that should be reported when used. However, as of August 2022, Department of Justice officials stated that as it implements the new policy, the department will continue to examine whether it needs further standards related to less-lethal force. We will continue to request updates from the department as it takes actions to address our recommendation.
Department of Homeland Security The Secretary of Homeland Security should develop standards for its component agencies on the types of information that must be reported on each use of force incident. (Recommendation 4)
Open
In June 2022, DHS officials stated that the DHS Office of Strategy, Policy, and Plans (DHS Policy) led a working group under the Law Enforcement Coordination Council that developed a baseline set of data points and a reporting template for all DHS law enforcement components and offices. These data are to be reported to DHS Policy, which will use the data for inclusion in Federal Bureau of Investigation's use of force data collection and public-facing website. The template includes required fields, such as the type of injuries and force used. However, the template is strictly for the purpose of reporting high level information for the Federal Bureau of Investigation's use of force data collection and public-facing website. The template and its related requirements do not include standards for what information must be reported by each component for the purpose of determining whether the use of force incident was conducted in accordance with policy. For example, the template does not include required information on the reason for the use of force. As of December 2022, we have requested additional information on the department's efforts, including any related updates to policies, procedures, and definitions that identify the types of information that must be reported on each use of force incident across the DHS components. Given the potential for both injuries and violations of constitutional rights when force is used, we continue to believe that it is important that DHS agencies have sufficient information to evaluate whether all uses of force were applied in accordance with agency policy. Developing department-wide standards on the types of information that should be required in use of force reporting-including the level of detail needed for each use of force incident-will help ensure that officers develop reports with all of the needed basic information.
Department of Homeland Security The Secretary of Homeland Security should oversee the quality, consistency, and completeness of use of force reporting across all DHS components, such as through a department-wide use of force oversight body or regular evaluations of use of force reporting. (Recommendation 5)
Open – Partially Addressed
As of December 2022, DHS has established a working group to coordinate the collection of use of force data across DHS. While the working group was established to oversee data collection, the DHS Office of Strategy, Policy, and Plans (DHS Policy) is still working to develop capabilities to oversee the quality and consistency of the data. Specifically, DHS officials stated in June 2022 that DHS Policy led a working group under the Law Enforcement Coordination Council that is coordinating the collection of use of force data across DHS. In October 2022, DHS Policy officials stated that, starting in fiscal year 2023, components will be required to report use of force incident data to DHS Policy every quarter, as well as reporting data to the Federal Bureau of Investigation's use of force website. DHS Policy officials stated that their office does an initial review to ensure completeness of the reports. However, as of October 2022, DHS Policy is working to develop analytic capabilities that will review data reports for quality and consistency. As of December 2022, we have requested additional information on how the working group and DHS Policy will oversee the quality, consistency, and completeness of use of force reporting across all DHS components. While the creation of the working group and regular collection of use of force data is a positive step, we continue to believe that establishing monitoring mechanisms to ensure that reporting information is consistent and complete will enhance DHS's ability to oversee the use of force across its agencies.
United States Marshals Service The Director of USMS should develop specific reporting requirements on the types of information that must be provided for each use of force incident. (Recommendation 6)
Open
As of August 2022, U.S. Marshals Service officials stated that their use of force reporting system now has required fields for information that their agency has determined to be mandatory when reporting each use of force, such as the date and time of the incident, the location of the incident, the person who used force, and the type of force was used. We have requested documentation related to the new reporting requirements, which we will review to determine if the agency has addressed our recommendation.
United States Park Police The Chief of USPP should develop specific reporting requirements on the types of information that must be provided for each use of force incident, such as the type of munition. (Recommendation 7)
Open
In March 2022, Department of the Interior officials stated that the National Park Service, which includes the U.S. Park Police, will update internal policies and procedures for reviewing less-lethal force incidents to determine if the force was used in accordance with agency policy. The Department anticipates these efforts to be completed by December 2022. We will continue to request updates from the department as it takes these actions.
United States Marshals Service The Director of USMS should, as part of the agency's efforts to develop procedures for the Less-than-Lethal Review Board, develop policies and procedures that require relevant officials to document their determination on whether force was used in accordance with agency policy. (Recommendation 8)
Open
According the U.S. Marshals Service officials in August 2022, the Office of Professional Responsibility has developed a draft standard operating procedure that describes the procedures of the Less-Than-Lethal Review Board, which is the entity that reviews less-lethal force incidents to determine if the use was in accordance with policy. The officials stated that the policy will address how board members are to document their policy determination as well as any recommendations. We have requested documentation related to the new policies and procedures, which we will review to determine if the agency has addressed our recommendation.
United States Immigration and Customs Enforcement The Director of ICE should modify policies and procedures to ensure that relevant officials document their determination on whether less-lethal force was used in accordance with agency policy. (Recommendation 9)
Open
In June 2022, ICE officials stated that it was working to update its use of force handbook, to include requiring supervisors document whether a less-lethal use of force violated agency policy. The officials noted that ICE has placed this on its internal policy agenda for action; however, due to the complexity of the various changes, ICE anticipates not being able to issue an ICE-level policy update until August 2023. We will continue to request updates from ICE as the agency takes these actions.
United States Secret Service The Director of USSS should modify policies and procedures to ensure that relevant officials document their determination on whether less-lethal force was used in accordance with agency policy. (Recommendation 10)
Open
Starting in December 2022, the U.S. Secret Service (USSS) began to roll out a new electronic use of force reporting system. This system replaces USSS's prior method of documenting use of force incidents, which was through an unstructured memorandum that consists of an open narrative and does not include any required fields. All reportable use of force incidents must be entered into the new system beginning January 1, 2023.As of December 2022, we have requested additional information to understand how the system will ensure that relevant officials document their determination on whether less-lethal force was used in accordance with agency policy.

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