GAO Issues Guidance to FLEO on Improving Less-Lethal Force Reports and Oversight
The Government Accountability Office (GAO) published a report on December 15 examining the extent to which federal agencies and other personnel used less-lethal force during demonstrations in response to George Floyd's death.
The report assesses the extent to which federal agencies developed policies, procedures, and training related to less-lethal force; reported their use of that force during two of the largest deployments - Washington, D.C. and Portland, Oregon; and took action to review their use during those deployments. The tactics and weapons considered less lethal include physical tactics, batons, chemical sprays, and munitions (tear gas and pepper spray) and kinetic impact munitions (rubber bullets).
The analysis highlights several law enforcement agencies and their subcomponents, including:
The Department of Homeland Security (DHS), specifically the Federal Protective Service (FPS), Customs and Border Protection (CBP), Immigration and Customs Enforcement (ICE), and the Secret Service (USSS);
The Justice Department (DOJ), specifically the Federal Bureau of Investigations (FB), the U.S. Marshals Service (USMS), the Bureau of Prisons (BOP), the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF);
The U.S. Park Police (USPP); and
The National Guard.
The GAO reviewed agency guidance on less-lethal force, followed by an analysis of use of force reports to determine if federal personnel used force in accordance with policy. All 10 agencies offer their personnel training in less-lethal force based on their missions, while some agencies also have policies that pertain to demonstrations.
According to the report, the Bureau of Prisons (BOP) is the only agency without a less-lethal force policy that applies to demonstrations, due to its historical focus on inmates within federal institutions. The GAO recommends BOP update their policy to reflect the increase in deployment in response to civil disturbances and natural disasters in recent years.
During the demonstrations in Washington D.C. from May 26, 2020, through June 15, 2020, at least 12 federal agencies deployed together up to 9,300 personnel per day. During this period, six agencies reported over 120 incidents of less-lethal force. In the process of clearing Lafayette Square on June 1, 2020, three of these agencies reported using force. Portland demonstrations saw at least five federal agencies mobilized about 325 personnel per day from June 26, 2020, to September 30, 2020. In total, four agencies reported over 700 incidents involving less-lethal force during this period.
In DHS and DOJ, reporting requirements differed across subcomponents which subsequently affected departmental oversight. While some agencies required employees to report the use of batons in all cases, others in the same department only required it if the use resulted in serious injuries.
Eight agencies reported using less-lethal force during deployments, though many of the accounts lacked basic information and varied from agency to agency. FPS, CBP, ICE, USSS, USMS, and USPP reports lacked information, such as time, location, type of weapon used, and circumstances surrounding the use of force. Although some accounts provided a high-level summary of the day, they did not identify which officers used force or what kind of force they used. A further obstacle to DHS monitoring the quality and consistency of the use of force reports is that the department has not established a body that monitors the use of force reports across all its agencies, as required by DHS policy.
The agencies that did document if the force was in accordance with policy — FPS, CBP, BOP, ATF and USPP — found nearly all their incidents to be in line. The GAO reports the agencies referred the remaining incidents of force to the relevant Offices of the Inspector General or were awaiting further administrative action as of July 2021.
As a result of the GAO's report, the following recommendations were made to the relevant federal agencies, including:
The Director of BOP should update BOP's use of force policy to address the use of force during demonstrations occurring outside of federal institutions;
For their component agencies, DHS and DOJ develop standards that specify what types of nonlethal force should be reported when used;
DHS must set standards regarding what type of information must be reported for each incident involving force use and establish mechanisms to ensure quality, consistency, and completeness of force use reporting across all DHS component agencies;
USMS and USPP develop specific reporting requirements detailing what information personnel should provide for every incident involving the use of force; and
USSS, USMS, and ICE modify policies and procedures to document, wherever applicable, whether they have applied less-lethal force within the scope of agency policy.