About That DOJ Policy on the Use of Force

A number of commentators on the shooting of a motorist by an ICE agent in Minneapolis have seized upon the Department of Justice’s Policy on the Use of Force, which was given a Biden-era revision in 2022 (all emphasis in the excerpts below is mine):

Firearms may not be discharged solely to disable moving vehicles. Specifically, firearms may not be discharged at a moving vehicle unless: (1) a person in the vehicle is threatening the officer or another person with deadly force by means other than the vehicle; or (2) the vehicle is operated in a manner that threatens to cause death or serious physical injury to the officer or others, and no other objectively reasonable means of defense appear to exist, which includes moving out of the path of the vehicle. Firearms may not be discharged from a moving vehicle except in exigent circumstances. In these situations, an officer must have an articulable reason for this use of deadly force.

There are two problems with citing this policy as a basis for finding that the ICE agent broke federal rules on the use of force. One is the limited force of these kinds of policy manuals, which are internal department guidelines subordinate to federal statutory and constitutional law. The manual reminds us: “The Justice Manual provides internal DOJ guidance. It is not intended to, does not, and may not be relied upon to create any rights, substantive or procedural, enforceable at law by any party in any matter, civil or criminal.” Internal guidelines are, of course, often cited as evidence of the standard of care and used to determine whether excessive force was used in a given case. But, as Jim Geraghty and Andrew McCarthy have already explained, the general standard of reasonableness of the use of force is what would govern this particular instance, with specific guidelines of this nature being merely evidence of whether the officer’s conduct reflected a reasonable fear of death or bodily harm to himself or others.

But there’s also a more fundamental problem: U.S. Immigration and Customs Enforcement is not a part of the DOJ and is not governed by internal DOJ regulations. (This is why the 2022 memo with the revised DOJ policy is addressed to the FBI, DEA, ATF, Marshals Service, Bureau of Prisons, and the Office of the Inspector General but not to ICE). ICE is, instead, part of the Department of Homeland Security. Its use-of-force policy was updated by DHS Secretary Alejandro Mayorkas in 2023, and while that update was generally intended to align with DOJ policies, it nonetheless does not contain the same language distinguishing between types of threats posed by the operators of vehicles and detailing specific alternatives.

The 2023 update emphasizes, as all such policies do, that “in determining the appropriateness of a particular use of force, the Department is guided by constitutional law, as interpreted by the U.S. Supreme Court.” Moreover, “This policy describes the governing legal framework and articulates additional principles to which the Department will adhere.” Rather than being mechanically governed by specific rules, the standard judges the use of force “from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight,” allowing for the fact that law enforcement officers (LEOs) are “often forced to make split-second judgments” and, “consequently, there may be a range of responses that are reasonable and appropriate under a particular set of circumstances.”

While DHS policy encourages tactics for de-escalation, it also emphasizes that DHS law enforcement officers “do not have a duty to retreat to avoid the reasonable use of force, nor are they required to wait for an attack before using reasonable force to stop a threat,” and, in “an exigent situation,” can “use any available object or technique.”

The policy strictly limits the use of firearms for warning shots or “disabling fire,” the latter meaning “to disable moving vehicles, vessels, aircraft, or other conveyances,” but it also makes explicit that this simply restricts agents from shooting at vehicles in situations in which deadly force would not be appropriate: DHS law enforcement officers are “prohibited from discharging firearms at the operator of a moving vehicle, vessel, aircraft, or other conveyance unless the use of deadly force against the operator is justified under the standards articulated elsewhere in this policy.” That general policy provides that deadly force is to be used “only when necessary,” that is when the law enforcement officers has a “reasonable belief that the subject of such force poses an imminent threat of death or serious bodily injury.” In short, this is the usual standard — not the more specific rules pronounced by the DOJ.

The DHS policy also provides that “deadly force shall not be used solely to prevent the escape of a fleeing subject.” However, deadly force is authorized to “prevent the escape of a fleeing subject where the LEO has a reasonable belief that the subject poses a significant threat of death or serious physical harm to the LEO or others and such force is necessary to prevent escape.” So, again, ICE officers can’t gun people down just to stop them from getting away, but the fact that someone is fleeing doesn’t change the basic question of whether the officer reasonably feared that he or someone else was threatened with death or serious injury.