By Bob
Greetings! My name is Bob. Well, actually it isn’t but for the purposes of this submission that’s the name I am going to use. You see, I am employed by a Federal Law Enforcement Agency that is currently circling your house at high altitude in black helicopters working quite hard to keep you safe. I know what you’re thinking: I am the enemy. Hell, sometimes even I think I am the enemy. However, 95% of the time I feel pretty good about what my particular agency does. No job is perfect but we do a pretty good job at staying within our moral, constitutional and regulatory limits. We were engrained at the Academy that we are the guardians of civil rights. My peers and I take that very seriously. The only reason I even allow for a 5% differential is . . .
– 3% of the time I have to deal with sadistic megalomaniacs who have no business being Agents in the first place. They give all of us a bad name and the armed citizen is right to hate their guts.
– 1% of the time I am downright uncomfortable with the constitutionality of a technique my Agency utilizes. However, that practice has been blessed by the U.S. Supreme Court, so any internal criticism from an Agent would be about as popular as Alona Tal at a PLO party.
– The final 1% is when someone in our ranks turns dirty; the ultimate betrayal of trust for which no punishment is too severe.
I digress. The reason why I am writing for the AI today is to discuss a particular topic: Use Of Force (UOF). Specifically, Federal UOF and how it applies to you. I am an instructor for my Agency in this regard so I can give you a few pointers. This is intended as a general guide so that you, the armed citizen,understand exactly how Agents will react to different stimuli. In theory, this makes both you and the Agents safer. But before you read on, please read and understand the following disclaimer:
***I AM NOT A LAWYER. THIS IS NOT LEGAL ADVICE. THIS IS GENERAL INFORMATION AND CLARIFICATION SHOULD BE SOUGHT FROM AN ATTORNEY IF YOU HAVE ANY QUESTIONS OR CONCERNS. DO NOT CONFUSE THIS WITH YOUR STATE OR LOCAL LAWS; WHILE THIS INFORMATION MAY VARY SLIGHTLY FROM AGENCY TO AGENCY, IT HAS NO BEARING ON STATE LAWS NOR DO STATE LAWS HAVE ANY BEARING ON FEDERAL UOF. DO NOT USE THIS AS A BASIS FOR ACTING AGGRESSIVELY WITH A FEDERAL AGENT AS IT WILL MORE THAN LIKELY END BADLY FOR YOU, ONE WAY OR ANOTHER.***
To begin, everything we do in terms of UOF is governed by our UOF Continuum. Happily enough, I don’t even have to violate my mystery Agency’s disclosure rules to share it with you! It is readily available on Google. So here it is:
This model governs every single encounter an Agent has with another human being. While he/she is interacting with you they are also silently placing you somewhere on this continuum. The key thing to remember is that an Agent will only elevate his/her own UOF based on your actions. I’m going to discuss each step of the continuum in layman’s terms.
99% of the time, Agents are interacting with COMPLIANT subjects. This is the level where 99% of regular folks exist. On its face, the title would suggest that doing what you’re told is a prerequisite. It’s a little misleading because you don’t need to BE compliant, necessarily, to still fall into this category. For example, if an Agent simply begins talking to you on the street, that is known as a consensual encounter.
As a citizen that is not under seizure/arrest, you have the right to terminate that consensual encounter at any time and you don’t have to comply at all. If the Agent does not have reasonable suspicion that you have committed a crime, they cannot hold you or give you commands. You can use pejoratives, refuse to speak with him/her or just generally act like a snarkypants. You would still be considered “compliant” under UOF doctrine because you have not crossed any of the lines in the aforementioned continuum. Folks who HAVE been seized or arrested (in this case terry stopped) can also be compliant provided that they are obeying lawful commands and not offering up…
PASSIVE OR ACTIVE RESISTANCE. I will tackle these together as they are similar. Let’s say you’re under an investigative stop. This is a temporary seizure under the law known as a Terry stop. Note: I am trying my best not to make this “A Guide to Seizures,” as I firmly believe that is a whole different can of worms even if the two are connected. Trust me; if you think this piece of writing is long, it would be TWICE as long if I went into a legal rant about seizures. Even with the lengthy departure I just made. Perhaps Ralph would be kind enough to oblige below. Anyway, where were we? You’ve been stopped temporarily. The Agent orders you to exit your vehicle. You refuse, just sitting there. You are now PASSIVELY resistant for the purposes of UOF.
The agent has some limited UOF options available to him/her in order to gain your compliance in this situation. Mostly these include contact controls and pressure points. That’s a nice way of saying he/she can drag you out of the car and make it painful while it happens. So if you’re feeling like HD Thoreau that day (not saying that in a bad way as I am a libertarian myself) and you decide that the Agent does not have the suspicion level required to stop you, then that’s on you. The odds are, however, he/she has more than adequately articulated the legal backing for a Terry stop and you’re coming out of that car. If you just play like a rag doll while the agent removes you, you remain passively resistant. Just for funsies though, let’s say that he/she reaches in and grasps your arm. You pull your arm away, or maybe you remain locked on the steering wheel. You have just become…
ACTIVELY resistant. This could run the gamut from physically resisting being moved (e.g. remaining locked on your steering wheel) to getting out and running around while chanting “can’t catch me!” This is where things start to get interesting, because you’ve just opened up some new options for the Agent to get the situation under control. These options are take-downs, OC spray and the taser. That’s right; every time you saw a video and cried “tyranny!” when a cop OC’d a protester who was locked arm-in-arm with another, it might have been totally cool with his department’s UOF rules. In the event you’re being actively resistant with a Federal Law Enforcement Agent (FLEA), I am here to tell you that it’s Kosher with our UOF doctrine. Run, dance around to avoid getting caught, lock onto a steering wheel, jerk your arm away when the Agent tries to escort you; all of these will qualify you as actively resistant. Don’t tase me bro indeed.
So there you are, out of the car now and running around to prevent the Agent from getting control of you. He finally grabs you and executes a take-down. It hurts. This makes you angry. Angry enough that you continue a trend of poor decision making and you become…
ASSAULTIVE. Pause for a moment, because this is where things get pretty serious. Don’t be mistaken; if you were actively resistant on a Terry stop it’s not a good thing. You CAN be charged for that. Please don’t do it, as you risk injury to yourself and Agent. However, it has been my experience that if you weren’t involved in any criminal activity (the suspicion for which is why you were Terry stopped to in the first place), you’re not going to be charged. At least not at the Federal Level. Even if you were passively resistant, even if you were actively resistant, you’re probably going to be cut loose with nothing more than a few stern words.
That is unless the local PD wants to charge you with some form of disorderly conduct and they probably won’t (be warned if THEY are the ones who pulled you over it will be a different story, as local cops will not put up with shenanigans on a traffic stop). However, if you cross the line into assault there is no going back. You WILL be charged. Federally. Simple assault is merely the Agent’s perceived threat of an impending assault. I.e., you don’t even have to touch the FLEA to be charged with it. Please Google “pre-assault indicators” for more details. Simple assault will land you in prison for one year if you are convicted. If you actually make physical contact with the Agent, it ceases to be simple assault and the penalty becomes eight years.
As with all steps of the UOF continuum, the Agent retains the ability to use all the tools and techniques available to them at lesser levels in an assaultive situation. What they gain is the ability to use strikes and a Collapsible Straight Baton. Please note that a proper strike from a CSB will completely shatter a hand or forearm. So no matter how angry you get, my advice is to just remain calm and polite.
If you truly believe your rights are being violated, you should contact an attorney at once. The Agent is responsible to act in accordance with the constitution and applicable regulations. Hold him/her to that by taking legal action if necessary. However, barring some far-fetched fictional scenario where an Agent is a bona fide wolf in sheepdog’s clothing, if you assault a Federal Agent you are going to get hurt. Then you are going to go to prison. It’s not worth it, so don’t do it.
However, hypothetically you’ve made the choice to be assaultive on this Terry stop. The difference is, in this version of the story you’re WINNING! I know most of you will be shocked… SHOCKED to hear this: not every Agent is a total bad-ass and sometimes everyday folks and criminals are. Perhaps you’ve been taking boxing lessons since you were 12. Maybe Brazilian Jujitsu is your favorite hobby. Maybe the Agent has been throwing down donuts while you’ve been throwing people in Judo. Either way, you’re hypothetically beating the sh*t out of the Agent and loving life. Hurray! There’s only one problem: you’ve decided to die.
Defeat is not an option to the Agent. If you’re beating them to the point where they believe they’re going to lose consciousness, the Agent is going to shoot you until you stop. The Agent has every reason to believe that you’re going to kill them at that point. Unconsciousness = inability to defend one’s self and therefore unconsciousness = death, so the Agent is going to shoot until the threat is stopped. Similarly, if you’re beating him/her to the point where they believe you are going to seriously injure them, the Agent is going to shoot you until you stop. You might have guessed this already, but you’ve crossed over into the realm of DEADLY FORCE.
Furthermore, if you reach for or attempt to use ANY weapon, you will have escalated the situation to deadly force. To give some examples, reaching for, picking up, brandishing or otherwise wielding the following will result in the Agent using deadly force against you:
– A rock (either thrown or wielded as a blunt object)
– A pipe/club
– Anything than can be used as an improvised weapon/weapon of convenience
– Any edged weapon
– Any edged tool
– Anything than can be used as an improvised edged weapon
– Any firearm
– Brass knuckles
– OC/taser
– Pointy sticks
You can use your imagination here. The bottom line is that in this fictional scenario your time is up. The agent has absolutely no responsibility to lay down his life or wellbeing for that of an attacker’s. Nor do they have any duty to retreat. The reins have come off and any tool or technique is fair game to stop the threat you have created. Running you over with a car? Cool. Shooting you? Of course. Stabbing you? A little dramatic but A-okay. Your best course of action at this point is to immediately cease all resistance and drop down into the compliance phase. Immediate compliance will lead to immediate de-escalation by the Agent.
This is, perhaps, the most important UOF lesson of all: the federal continuum is not a step-by-step process. Let’s say that we’re back at the beginning of this scenario, except instead of being passively resistant you immediately exit the vehicle and open fire on the Agent. The Agent isn’t going to try-out each step on the continuum before arriving at deadly force. It would be silly. The continuum is a sliding scale where Agents use tools and techniques to defeat threats at different levels. They will “jump” to different degrees of force as required by the situation at hand. If you’ve been paying attention, you also noticed that the Agent is always authorized to exceed a subject’s level of force by one degree in order to gain control.
UOF is something we oftentimes discuss here on TTAG. It is easy for us to get tunnel vision on the laws which apply to us as armed citizens. However, the rules that govern UOF for Law Enforcement Officers are equally important for us to learn. After all, combined with our actions they will govern the outcome of each and every encounter we have with LEOs throughout our lives. What I have written here is a federal perspective but it probably varies from State to State. A FLEA will not necessarily react the same way as a State Trooper. I suspect troopers will put up with a lot less. There may even be further variations at the county and local levels. Seek-out, learn and understand the UOF doctrine that governs your local police force’s actions. Understanding EXACTLY where you stand when you encounter a LEO is the first step to ensuring your safety.
Stay safe out there,
Bob