COMMENT DUE DATE:
March 1, 2011
DATE:
February 15, 2011
Molly Green OIG (405) 522-0541
Dena Thayer OIRP Programs Administrator (405) 521-4326
Pat McCracken OIRP (405) 522-1017
RE:
APA WF 11-02
The proposed policy is Permanent . This proposal will go to the Commission meeting on
CHAPTER 2. ADMINISTRATIVE COMPONENTS
Subchapter 7. Office of Inspector General
Part 1. Responsibilities and Functions
OAC 340:2-7-1 through 340:2-7-2 [AMENDED]
OAC 340:2-7-4.1 through 340:2-7-5 [REVOKED]
OAC 340:2-7-9 [AMENDED]
Part 2. Guidelines for the Possession and Use of Firearms Force
OAC 340:2-7-14 through 340:2-7-16 [REVOKED]
OAC 340:2-7-17 [AMENDED]
(Reference APA WF 11-02)
SUMMARY:The proposed revisions to Subchapter 7 of Chapter 2 align rules with current practices of the Office of Inspector General (OIG).Proposed amendments:(1) add language regarding certification requirements for commissioned agents who carry firearms; (2) remove unnecessary and outdated language; (3) correct a legal citation; (4) add definitions; (5) add clarifying language; and (6) revoke Sections that are internal procedures or are obsolete.
340:2-7-1is amended to correct the federal regulation citation that authorizes Medicaid eligibility investigations and to remove unnecessary and outdated language.
340:2-7-2 is amended to add clarifying language and remove unnecessary and outdated language.
340:2-7-4.1 and 340:2-7-5 are revoked to remove unnecessary language.
340:2-7-9 is amended to: (1) add language about certification requirements for agents who carry firearms; (2) cite the associated Oklahoma Statute; (3) add clarifying language; and (4) remove unnecessary and outdated language.
340:2-7-14, 340:2-7-15, and 340:2-7-16 are revoked to remove unnecessary language.
340:2-7-17 is amended to: (1) add definitions; (2) add clarifying language regarding use of force; and (3) remove unnecessary language.
PERMANENT RULEMAKING APPROVAL IS REQUESTED.
LEGAL AUTHORITY:Commission for Human Services, Article XXV, Sections 2 and 4 of the Oklahoma Constitution; and Section 162.4 of Title 56 of the Oklahoma Statutes.
Rule Impact Statement
To:Dena Thayer, Programs Administrator
Office of Intergovernmental Relations and Policy
From:Michael Fairless, Inspector General
Office of Inspector General
Date:February 16, 2011
Re:CHAPTER 2. ADMINISTRATIVE COMPONENTS
Subchapter 7. Office of Inspector General
Part 1. Responsibilities and Functions
OAC 340:2-7-1 through 340: 2-7-2 [AMENDED]
OAC 340: 2-7-4.1 [REVOKED]
OAC 340: 2-7-5 [REVOKED]
OAC 340: 2-7-9 [AMENDED]
Part 2. Guidelines for the Possession and Use of Firearms Force
OAC 340: 2-7-14 through 340: 2-7-16 [REVOKED]
OAC 340: 2-7-17 [AMENDED]
(Reference APA WF 11-02)
Contact:Molly Green, 405-522-0541
A.Brief description of the purpose of the proposed rule:
Purpose.The proposed revisions to Subchapter 7 of Chapter 2 amend the rules to align rules with current practices of the Office of Inspector General (OIG).Proposed amendments: (1) add clarifying language regarding use of force; (2) add language about certification requirements for agents who carry firearms; (3) remove unnecessary and outdated language; (4) correct a legal citation; (5) add definitions; (6) add clarifying language and (7) revoke Sections that are internal procedures or are obsolete.
Strategic Plan impact. The proposed rules achieve Oklahoma Department of Human Services (OKDHS) goals by continuously improving processes to achieve OKDHS goals and by preserving the integrity of OKDHS programs and services through prevention, detection, and prosecution of fraud, waste, and abuse.
Substantive changes.
340:2-7-1is amended to correct the federal regulation citation that authorizes Medicaid eligibility investigations and to remove unnecessary and outdated language.
340:2-7-2 is amended to add clarifying language and remove unnecessary and outdated language.
340:2-7-4.1 and 340:2-7-5 are revoked to remove unnecessary language.
340:2-7-9 is amended to: (1) add language about certification requirements for agents who carry firearms; (2) cite the associated Oklahoma Statute; (3) add clarifying language; and (4) remove unnecessary and outdated language.
340:2-7-14, 340:2-7-15, and 340:2-7-16 are revoked to remove unnecessary language.
340:2-7-17 is amended to: (1) add definitions; (2) add clarifying language regarding use of force; and (3) remove unnecessary language.
Reasons. The proposed revisions add clarifying language regarding firearms certification and use of force and remove unnecessary and outdated language.
Repercussions. The proposed rules update language to reflect current practice and improve staff accountability. If the proposed revisions are not implemented, OIG rules would provide only minimal guidance regarding use of force and the rules would retain unnecessary and outdated language.
Legal authority. Commission for Human Services, Article XXV, Sections 2 and 4 of the Oklahoma Constitution; and Section 162.4 of Title 56 of the Oklahoma Statutes.
Permanent approval. Permanent rulemaking approval is requested.
B.A description of the classes of persons who most likely will be affected by the proposed rule, including classes that will bear the costs of the proposed rule, and any information on cost impacts received by the Agency from any private or public entities: The classes of persons most likely to be affected by the proposed rules are OIG staff. The affected classes of persons will bear no costs associated with implementation of the rules.
C.A description of the classes of persons who will benefit from the proposed rule: The classes of persons who will benefit are OIG staff and the citizens of Oklahoma.
D.A description of the probable economic impact of the proposed rule upon the affected classes of persons or political subdivisions, including a listing of all fee changes and, whenever possible, a separate justification for each: The revised rules do not have an economic impact on the affected entities. There are no fee changes associated with the revised rules.
E.The probable costs and benefits to the Agency and to any other agency of the implementation and enforcement of the proposed rule, the source of revenue to be used for implementation and enforcement of the proposed rule and any anticipated effect on state revenues, including a projected net loss or gain in such revenues if it can be projected by the Agency: The probable cost to OKDHS includes the cost of printing and distributing the rules, which is estimated to be less than $10. The revised rules will result in enhanced clarification of OIG staff responsibilities and improve accountability of OIG staff for those responsibilities.
F.A determination whether implementation of the proposed rule will have an impact on any political subdivisions or require their cooperation in implementing or enforcing the rule: The proposed rules do not have an economic impact on any political subdivision, nor will the cooperation of any political subdivisions be required in implementation or enforcement of the rules.
G.A determination whether implementation of the proposed rule will have an adverse economic effect on small business as provided by the Oklahoma Small Business Regulatory Flexibility Act: There are no anticipated adverse effects on small business as provided by the Oklahoma Small Business Regulatory Flexibility Act.
H.An explanation of the measures the Agency has taken to minimize compliance costs and a determination whether there are less costly or non-regulatory methods or less intrusive methods for achieving the purpose of the proposed rule: There are no less costly or nonregulatory methods or less intrusive methods for achieving the purpose of the proposed rules.
I.A determination of the effect of the proposed rule on the public health, safety, and environment and, if the proposed rule is designed to reduce significant risks to the public health, safety, and environment, an explanation of the nature of the risk and to what extent the proposed rule will reduce the risk: Implementation of the proposed rules enhances rules regarding use of force by commissioned agents to protect the health and safety of clients, employees, commissioned agents, and the general public should a threat to life arise.
J.A determination of any detrimental effect on the public health, safety, and environment if the proposed rule is not implemented: If the proposed rules are not implemented, Oklahoma citizens and OIG staff will not have updated and concise rules regarding the functions and practices of OIG.
K.The date the rule impact statement was prepared and, if modified, the date modified: Prepared January 19, 2011. Modified February 10, 2011.
SUBCHAPTER 7. OFFICE OF INSPECTOR GENERAL
PART 1. RESPONSIBILITIES AND FUNCTIONS
340:2-7-1. Purpose, authority and scope
Issued 6-19-95 Revised 7-1-11
(a) Purpose and scope.The purpose of this Subchapter is to outline the responsibilities and functions of the Office of Inspector General (OIG).The Office of Inspector General is supervised by a division administrator.Immediately subordinate to the division administrator are a programs administrator over investigations and a supervisor, Internal Audits over audit.The Division is then further divided into investigative and audit units or teams.OIG is charged with the responsibility to investigate allegations of fraud, waste, abuse, and other allegations of criminal activity against the Oklahoma Department of Human Services (OKDHS) or its programs.OIG also has the responsibility to audit vendors and suppliers of OKDHS goods and services under the Federal Single Audit Act of 1984, as well as OKDHS divisions and units for program compliance and performance.
(b) Authority.The OIG was established in 1979 and functions under the following federal regulations and Oklahoma State Statues:
(1) CFR 45, Paragraph 235.110 - Public Assistance Part 235.100 of Title 45 of the Code of Federal Regulations (45 CFR 235.110);
(2) CFR 7, Paragraph 273.16- Food Stamps 7 CFR 273.16;
(3) CFR 42, Paragraph 455.11 - 15 Medical 42 CFR 455.12-23; and
(4) Section 162.4 of Title 56 of the Oklahoma State Statue Statute 56 OS' 162.4 (56 O.S. § 162.4).
(c) Scope.The Office of Inspector General is the Division within the Oklahoma Department of Human Services (ODHS) charged with the responsibility to investigate allegations of fraud, waste or abuse as well as other allegations of criminal activity against the Department or programs administered by the Department.OIG also has the responsibility to audit vendors and suppliers of Department goods and services under the Federal Single Audit Act of 1984, as well as Divisions and Units of the ODHS for program compliance and performance.
340:2-7-2. Definitions
Revised 11-24-96 7-1-11
The following words and terms, when used in this Subchapter, shall have the following meaning meanings, unless the context text clearly indicates otherwise:
"Abuse" means to make excessive or improper use of a thing, or to employ it in a manner contrary to the material or legal rules for its use; to make an extravagant or excessive use, as to abuse one's authority.Abuse may also occur through expressive carelessness in following written instructions and/or or policy or in failing to take proper action that results in improper payments for public assistance, food stamps benefits, vendor payments, and in or claims processing.Abuse through expressive carelessness may occur in eligibility determination, supervision review, data processing, claims processing, and or program interpretation.
"Error" means a mistaken judgment or incorrect belief as to the existence or effect of matters of fact, or a false or mistaken conception or application of fact.
"Fraud" means the willful use of a deceitful practice or willful device with the intent to deprive another of his/her his or her rights, or in some manner, or to do the individual injury in some manner.As distinguished from negligence, fraud is always positive and intentional.Fraud applied to contracts is the cause of an error on a material part of the contract designed to obtain some unjust advantage to one party or cause an inconvenience or loss to the other.Fraud, in the sense of a court of equity, properly includes all acts, omissions, and concealments which that involve a breach of legal or equitable duty, trust, or confidence justly reposed, and are injurious to another, or by which an undue and unscrupulous advantage is taken of another.
"Worker's Compensation Fraud" means in part, any act or omission prohibited by Subsection A, B and C of O.S., §1663, and committed by a person with the intent to injure, defraud or deceive another.
340:2-7-4.1. Responsibilities of the Internal Audit Unit [REVOKED]
(a) Purpose.The Internal Audit Unit provides an independent appraisal function within the organization to examine and evaluate its activities.Internal auditing furnishes management with analyses, recommendations, counsel and information concerning the adequacy of the activities reviewed.
(b) Audit functions.The audit functions of the Internal Audit Unit are provided in this subsection.
(1)The routine functions of the Internal Audit Unit within the Office of Inspector General include:
(A) financial and compliance audits of third party contractors;
(B) performance audits within the agency;
(C) desk reviews and quality control reviews of independent audits performed on agency contractors;
(D) annual audits of the agency's institutions;
(E) special cost studies;
(F) on site monitoring of day care vendor claims for reimbursement.
(2) Audit work is provided to agencies closely affiliated with the Department based upon interagency agreements.Documentation is maintained to support all internal auditor hours and travel charged to other agencies for audit work performed on their programs.
(3) Audit objectives are to:
(A) report on compliance with agency policies and procedures, contractual requirements and state and federal laws and regulations;
(B) evaluate the system of internal controls;
(C) identify overpayments due to the Department;
(D) evaluate the effectiveness or efficiency of performance.
(c) Standards.Government Auditing Standards prescribe the basic guidelines for the audit work performed by Office of Inspector General internal auditors..Those standards include staff qualifications and training, planning and performance of work, documentation of workpapers and reporting of audit findings.
(d) Reporting.A response and plan for corrective action are requested from the auditee for any audit findings and are attached to final audit reports.Final audit reports are distributed to:
(1) the Director of Department of Human Services;
(2) the division administrator and responsible program personnel;
(3) the director of the audited entity;
(4) the State Auditor and Inspector per 74 O.S. Supp. 1993 Section 229;
(5) the Audit Oversight Committee per DHS:2-40-21;
(6) Contracts Division.
(e) Single Audit Act compliance. Compliance with the Single Audit Act of 1984 is ensured by the review of independent audit reports for the subrecipients of federal funds.A listing is maintained of audits required.Deficiencies requiring revision by the independent auditor and corrective action plans needed for subrecipients are monitored and resolved.
340:2-7-5. Responsibilities of the Investigations Unit [REVOKED]
(a) Source of referrals.Referrals are made to the Office of the Inspector General (OIG) from any source including county offices and other Department divisions and offices, other state and federal agencies, all law enforcement agencies, and the general public. Referrals may be taken by telephone or in writing from any source outside the Agency. All referrals originating within the Department are submitted on a Form OIG-1 and accompanied by as much documentation as possible to assist in the investigation.
(b) Referral processing.When a referral is received by the OIG, the supervisor of investigations reviews the referral and has it numbered and logged-in to the division tracking system.The referral is then forwarded by the supervisor of investigations to the supervisor of the appropriate investigative unit.After further review by the supervisor, a decision is made on the processing of the referral.If the referral is from a Department office and alleges program fraud, a memo is forwarded to the originator by the fraud unit supervisor advising either acceptance of the referral for investigation, along with the name of the assigned investigator, or an explanation of the reason the referral is being returned and not being worked.
(1) In some instances the referral is returned by the fraud unit supervisor with a request for further information.The Office of Inspector General staff completes Form OIG-1 on referrals received by telephone or letter from outside the Agency and forwards the referral through channels.All referrals are tracked by computer from receipt through final disposition.
(2) Referrals relating to food stamp trafficking, electronic benefits transfer fraud, computer fraud, or computer-related crimes, and any situations requiring specialized surveillance or photographic expertise are referred by the supervisor of investigations to the Technical Investigations Unit of the Office of Inspector General for resolution.
(3) Referrals alleging workers compensation fraud or related activities, are referred to the supervisor of the Workers Compensation Fraud Unit of the Office of Inspector General.
(4) The Internal Investigation Review Committee evaluates referrals relating to internal employee investigations.The committee provides a forum where case specific jurisdictional issues are addressed prior to the initiation of investigatory activities.The committee is composed of the division administrators or designees from the:
(A) Office of the Inspector General;
(B) Office of Client Advocacy;
(C) Human Resources Management Division; and
(D) Office of the General Counsel.
(c) Investigations.Investigators complete all investigations as expeditiously as possible.Upon completion of an investigation in public assistance cases other than pre-established overpayments, an interim report is forwarded to the Family Support Services, Overpayment Section for determination of the overpayment amount.The amount of the overpayment, in conjunction with admissible evidence to support the charge, determines if prosecution or administrative sanction is pursued.In the event of an administrative hearing, the investigator makes himself or herself available to testify.OIG forwards investigative reports relating to non-program areas or Workers Compensation claims to the applicable agency or court for resolution.At the conclusion of the investigation, OIG provides a management summary to the appropriate division administrator.
(1) Overpayments of $1,000.00 or more.If the overpayment amount is $1,000.00 or more and the investigator and supervisor believe the evidence supports the filing of criminal charges, the case is presented to the appropriate district attorney for determination of prosecutorial merit.
(2) Overpayments of less than $1,000.00.If the district attorney requests and the evidence supports filing criminal charges, cases with overpayment amounts of less than $1,000.00 are presented to the appropriate district attorney.If the district attorney accepts the case, the district attorney's office processes it through the judicial system.If the case is not accepted for prosecution by the district attorney, administrative remedies are pursued, including attempts to secure a repayment agreement or a Temporary Assistance for Needy Families (TANF) or Food Stamp (FS) waiver and an administrative hearing if requested.
(3) Overpayments under $500.00.Any overpayment amounts under $500.00 are processed within department administration rather than through the courts.
(d) In order to complete authorized audits and investigations, the Office of Inspector General staff have the authority to contact any employee and secure any information, records, or documents related to the investigation or audit.DHS personnel requested to provide information to authorized representatives of the Office of Inspector General provide such information which is within their personal knowledge or from records in their custody.If the requested information is not within the personal knowledge of the employee or obtainable from records in the employee's custody, he or she so states to the auditor or investigator and refers the request to his or her supervisor.
340:2-7-9. Commissioned agents
Revised 11-10-01 7-1-11
In accordance with Section 162.4 of Title 56 of the Oklahoma Statutes, (56 O.S. § 162.4) authorizes the Oklahoma Department of Human Services (DHS) (OKDHS) Director has the authority to commission employees within the Office of Inspector General (OIG) as peace officers, hereafter referred to as agents, with the authority to investigate crimes committed against the Department OKDHS or crimes against committed in the course of any program administered by the Department OKDHS.
(1) Commissioned agents have the authority Agents are authorized to serve and execute process, bench warrants, search warrants, and other court orders in any judicial or administrative proceeding in which the Department that OKDHS is a party or participant.Agents are authorized to conduct searches without a warrant in situations authorized by state and federal constitutional provisions.Only commissioned agents charged with the responsibility of investigating fraud are authorized to possess and use firearms while performing their official DHS duties and in mutual aid situations, and must do so within the guidelines established by the rules in Part 2 of this Subchapter in compliance with applicable state and federal laws.
(2) The OKDHS Director of the Department may delegate, in writing, to the inspector general, the responsibility to authorize the carrying of firearms by commissioned agents consistent with the rules in Part 2 of this Subchapter.Authority for any commissioned agent to carry firearms may be withdrawn, temporarily or permanently, at any time by the inspector general or the OKDHS Director of the Department.
(3) All agents authorized to carry firearms must be certified by the Council on Law Enforcement, Education and Training (CLEET) as peace officers under 70 O.S. § 3311.
PART 2. GUIDELINES FOR THE POSSESSION AND USE OF FIREARMS
FORCE
340:2-7-14. Training and firearms recertification requirements [REVOKED]
(a) All commissioned agents authorized to carry firearms must be certified by the Council on Law Enforcement, Education and Training (CLEET) as peace officers in accordance with Section 3311 of Title 70 of the Oklahoma Statutes.
(b) Firearm requalification is completed according to (1) - (7) of this subsection.
(1) The chief firearms instructor in OIG must be CLEET certified as a firearms instructor.In the event OIG does not have a CLEET certified firearms instructor employed, a CLEET certified firearms instructor from another agency shall be utilized.
(2)The chief firearms instructor will establish the requalification standards with the approval of the inspector general.
(3) The chief firearms instructor will conduct a firearms requalification examination for each agent authorized to carry a firearm on at least a semi-annual basis.
(4) The chief firearms instructor and training officer will maintain a firearm training record for each commissioned agent.
(5) The requirements for the use of firearms during a requalification examination are listed in (A) through (C) of this paragraph.
(A) Only an approved firearm may be used for a firearms requalification examination.
(B) All commissioned agents will provide their own firearms.
(C) Each commissioned agent will provide the chief firearms instructor, the training officer and the inspector general with written information of the type, serial number, and caliber of his or her firearm for approval.
(6) Failure to meet the requalification standards, for any reason, will immediately result in the removal of duties requiring the use of a firearm.
(7) Only an approved firearm and one with which the agent qualified during the most recent requalification may be carried by an agent in the performance of duties.
340:2-7-15.Restrictions on the possession of firearms by commissioned agents [REVOKED]
(a) Firearms may be carried only by authorized commissioned i agents under circumstances expressly permitted and with the specific authorization of the Department of Human Services (DHS ) Inspector General or Director.¢ 1
(b) When carried, firearms shall be carried in accordance with Section 1289.23 of Title 21 of the Oklahoma Statutes.
(c) Commissioned agents, while armed, must have their credentials in their possession.
(d) When authorized, firearms will be carried concealed from public view when agents are not in uniform.Written approval from the inspector general or the Director is required before carrying a firearm out of state on official business.Firearms will be carried in compliance with applicable state and federal laws.
INSTRUCTIONS TO STAFF 340:2-7-15
1.(a) The carrying of a firearm is prohibited:
(1) in the OIG office, where the weapon must be secured;
(2) when to do so would be contrary to state or federal law;
(3) in court, unless instructed by the court to be armed;
(4) when instructed by the inspector general, the Director of the Department, or their respective designees not to carry the weapon;
(5) at any time the agent has reason to believe that carrying a weapon would needlessly elevate tension or create anxiety; and
(6) in such other circumstances where the agent has reason to believe that carrying of a firearm would be inappropriate.
(b) The carrying of a firearm is permitted:
(1) if, in the prudent judgment of the agent, he or she has reason to believe that the situations he or she will likely encounter possess some risk of physical harm to himself or herself, or others, or the potential exists for some form of violence;
(2) in the service of process;
(3) in the service of arrest warrants or during an arrest;
(4) when on surveillance or undercover investigations;
(5) when conducting interviews or interrogations;
(6) when participating in joint investigations with other law enforcement agencies;
(7) when assisting another law enforcement agency;
(8) to provide security when requested by an appropriate authority; and
(9) when activated for an Emergency Response Team (ERT) operation.
340:2-7-16. Firearms safety and responsibilities [REVOKED]
Commissioned agents authorized to carry firearms shall adhere to such safety rules as may be stated in this Section's Instructions to Staff.¢ 1
INSTRUCTIONS TO STAFF 340:2-7-16
1. (a) Firearms safety responsibilities.Firearms safety responsibilities of commissioned agents are provided in (1) - (4) of this paragraph.
(1) Firearms are not drawn or aimed except in compliance with the rules in this Instruction.
(2) Warning shots are forbidden.
(3) The discharge of any firearm, outside normal training, whether an accident or a deliberate act is a serious matter and shall be thoroughly investigated.Any commissioned agent who discharges a firearm while on duty or is aware of such an incident shall report the incident to his or her supervisor within 24 hours.The supervisor shall confirm the incident and make a report to the chief agent as soon as possible after the confirmation of the incident.The inspector general shall designate one or more agents to conduct an independent investigation of the incident and make a report to the inspector general.The investigation shall be conducted concurrent with any investigation conducted by a law enforcement agency.
(4) The inspector general shall take such personnel action deemed appropriate and authorized by DHS policy against any agent who discharges a firearm without authorization.
(b) Firearms safety rules.Commissioned agents shall:
(1) regard all firearms as loaded;
(2) never aim or point a firearm unless they intend to use that firearm;
(3) never use a firearm to play tricks, games, quickdraw, engage in any other form of horseplay, or allow themselves to become involved in unauthorized acts;
(4) never draw firearms as a joke or jest;
(5) know and use all the safety devices of firearms with which they are armed;
(6) first identify their target and ensure a clear field of fire before discharging a firearm;
(7) promote firearms safety through their own actions;
(8) be cautious when loading and unloading a firearm;
(9) never arm themselves with a firearm they are not fully qualified to use;
(10) bear in mind at all times that their conduct in handling the firearm is their own responsibility; and
(11) ensure the firearm is properly secured and that access to others is denied at all times.
340:2-7-17. Use of force
Revised 1-10-01 7-1-11
Force may be used by commissioned agents of the OIG within the limits given in (1)‑(3) of this subsection.
(1) The degree of force used must be the minimum to accomplish their duty and may include physical apprehension and restraining techniques which result in an application of less than deadly force.
(2) Deadly force is that which is applied with the intent of causing, or which a reasonable person should know would cause, death or serious bodily harm.Deadly force will only be used to:
(A) prevent death or serious injury to oneself; or
(B) prevent death or commission of a serious violent offense threatening serious bodily injury to others.
(3) Firearms shall not be used to attempt to stop or disable a vehicle.However, if a vehicle is used as a weapon, firearms may be used toward the driver of the vehicle, but not when the vehicle is no longer in a position to threaten the agent.
(a) Policy.It is the policy of the Office of Inspector General (OIG) that an agent only uses the minimum level of force necessary to bring an incident under control while protecting the lives of the agent or others.Only the amount of force essential for the agent to attain the objective is used.
(b) Definitions.The following words and terms, when used in this Part, shall have the following meanings, unless the text clearly indicates otherwise:
(1) "Force"means any physical action, from agent presence to serious physical injury or death, that compels an action or overcomes resistance.
(2) "Use of force" means any application of force beyond that required to properly take an unresisting subject into custody and maintain control of that subject.¢ 1
(3) "Deadly force" means any force capable of causing death or serious physical injury.
(4) "Less lethal force" means all force other than deadly force.Less lethal force may still result in serious physical injury, but is not intended to cause death.
(5) "Serious physical injury" means injury creating substantial risk of death or causing serious disfigurement, serious impairment of health, or serious loss or impairment of function of a bodily organ.
(6) "Reasonable belief" means that given facts and circumstances, including reasonable inferences drawn from them, that are known to the agent at the time force is used, would cause a reasonable agent to conclude the point at issue is probably true.This factor is assessed according to what the agent knew or reasonably believed at the time of the incident and not what appears best with the benefit of hindsight.
(c) Use of force continuum.The use of force continuum consists of all degrees of force available for an agent to perform his or her duties.Although the use of force continuum is broken down into levels, all use of force options are available at all times depending on the circumstances.An agent adjusts the level of force used according to the level of resistance encountered.The levels of the use of force continuum are:
(1) agent presence;
(2) verbal commands;
(3) hands-on techniques;
(4) chemical weapons;
(5) empty hand striking techniques;
(6) impact weapons; and
(7) deadly force.
(d) Use of deadly force.Deadly force may be used when the agent has a reasonable belief that another person poses a threat of death or serious physical injury to either the agent or others.Firearms are considered deadly force weapons.Carotid restraints or choke holds may only be used as deadly force.The use of equipment such as a baton or automobile may be deadly force depending on the technique of use.
(e) Use of less lethal force.Less lethal force may be used to:
(1) arrest, search, or detain a person;
(2) recapture a person;
(3) maintain custody of a person;
(4) defend oneself or others from a person; and
(5) prevent a person from committing suicide or self-inflicting other serious physical injury.
INSTRUCTIONS TO STAFF 340:2-7-17
Issued 7-1-11
1.Merely applying handcuffs, for example, is the use of a restraining device, not a use of force.If an agent has to wrestle with a subject in order to apply handcuffs then force has been used.
