DRAFT OMB CIRCULAR, GUIDELINES FOR LEGISLATION INVOLVING FEDERAL CRIMINAL LAW ENFORCEMENT AUTHORITIES

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP90B01370R001101500021-1
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 19
• Document Creation Date: December 22, 2016
• Document Release Date: April 21, 2009
• Sequence Number: 21
• Publication Date: February 7, 1984
• Content Type: MEMO

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STAT
Office of Legislative Liaison
Routing Slip
Date
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EXECUTIVE OFFICE OF THE PRESIDENT
OFFICE OF MANAGEMENT AND BUDGET
FEBRUARY 7, 1984
LEGISLATIVE REFERRAL MEMORANDUM
SEE ENCLOSED DISTRIBUTION LIST
D
Eaq
Chrono 4,ec,
SUBJECT: Draft OMB Circular, "Guidelines for Legislation
Involving Federal Criminal Law. Enforcement
Authorities"
The Office of Management and Budget requests the views of your
agency on the enclosed draft OMB Circular.
Please provide us with your views no later than Tuesday, February
28, 1984. NOTE: Several definitions that appear in this draft
Circular also appear in OMB Circular NO. A-19. These definitions
are not subject to revision.
Direct your questions to Gregory Jones (395-38
office.
cc:
C. Horner
Mike Uhlmann
A.
R.
Curtis
Irby
C. Bryant
R Adkins
D. . Kleinberg
H. Loweth
M.
J.
B.
K.
Allen
Walker
Martin
Glozer
Jart>'C.. Mtfrf 'for
Assistant Director for
Legislative Reference
D. Leonard R. Peterson
K. Collins N. Sweeney
P. DuSault D. Sitrin
D. Taft S. Jacobs
B. Selfridge D. Crabill
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DISTRIBUTION LIST
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DEPARTMENT
DEPARTMENT
DEPARTMENT
DEPARTMENT
DEPARTMENT
DEPARTMENT
DEPARTMENT
DEPARTMENT
DEPARTMENT
DEPARTMENT
DEPARTMENT
DEPARTMENT
ACTION
AGRICULTURE
COMMERCE
EDUCATION
DEFENSE
ENERGY
HEALTH AND HUMAN
THE INTERIOR
JUSTICE
HOUSING AND URBAN
LABOR
STATE
TRANSPORTATION
THE TREASURY
CENTRAL INTELLIGENCE AGENCY
ENVIRONMENTAL' PROTECTION AGENCY
FEDERAL COMMUNICATIONS COMMISSION
FEDERAL EMERGENCY MANAGEMENT AGENCY
GENERAL SERVICES ADMINISTRATION
UNITED STATES INFORMATION AGENCY
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
NUCLEAR REGULATORY COMMISSION
NATIONAL LABOR RELATIONS BOARD
OFFICE OF PERSONNEL MANAGEMENT
UNITED STATES POSTAL SERVICE
SMALL BUSINESS ADMINISTRATION
SMITHSONIAN INSTITUTION
TENNESSEE VALLEY AUTHORTIY
VETERANS ADMINISTRATION
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EXECUTIVE OFFICE OF THE PRESIDENT
OFFICE OF MANAGEMENT AND BUDGET
WASHINGTON, D.C. 20503
DRr-.*Ii
JANUARY 27, 1984 CIRCULAR NO. A-
SUBJECT: Guidelines for Legislation Involving Federal
Criminal Law Enforcement Authorities
1. Purpose. This Circular establishes guidelines for (1) the
development of proposed legislation to extend criminal law
enforcement authorities to agencies and (2) the review of pending
bills that would extend criminal law enforcement authorities to
agencies. The Office of Management and Budget (OMB) will use
these guidelines in coordinating and clearing proposed legis-
lation and reports on pending bills, in accordance with Circular
No. A-19.
2. Background. From time-to-time agencies. propose legislation
that would extend criminal law enforcement authorities (e.g.,
authority to conduct a warrantless search or to carry a firearm)
to themselves or to other agencies. On other occasions, agencies
are asked to provide Congress with reports on pending bills that
would extend such authority. No guidelines have been available
to the agencies, however, to ensure a consistent approach to
proposed or pending legislation that contains criminal law
enforcement authorities. Guidelines of this nature are necessary
in order to provide sound criteria and a systematic process for
considerj,ng such authorities when proposed, and to avoid
unnecessary and undesirable proliferation of criminal law
enforcement authorities.
3. Definitions. For the purpose of this Circular, the following
definitions apply:
a. Accredited Course of Training. A systematic course of
instruction offered by an appropriate Federal law enforcement
agency.
b. Agency. Any executive department or independent
commission, board, bureau, office, agency, Government-owned or
controlled corporation, or other establishment of the Government,
including any regulatory commission or board.
c. Covert Investigative Technique. Electronic surveillance,
an undercover operation,,the use of a paid informant, or any
other method of obtaining evidence of crime in a clandestine
manner.
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d. Pending.Bill. Any bill or resolution that has been
introduced in Congress or any amendment to a bill or resolution
while in committee or when proposed for House or Senate floor
consideration during debate. Also, any proposal placed before
the conferees on a bill that has passed both Houses.
e. Proposed Legislation. A draft bill or any supporting
document (e.g., Speaker letter, section-by-section analysis, or
statement of purpose and justification) that an agency wishes to
present'. to Congress for its consideration. Also, any proposal
for, or endorsement of, legislation included in an agency's
annual or special report or in other written form that an agency
,proposes to transmit to Congress, or to any Member or committee,
officer or employee of Congress, or staff of any committee or
Member, or to make available to any study group, commission, or
the public.
f. Report (including testimony). Any written expression of
official views prepared by an agency on a pending bill for (1)
transmittal to any committee, Member, officer, or employee of the
Congress, or the staff of any committee or Member, or (2)
presentation as testimony before a congressional committee.
Also, any comment or recommendation on a pending bill that is
included
in
an agency's annual or special report that an agency
proposes
to
transmit to Congress, or to any Member or committee,
officer
or
employee of Congress, or staff of any committee or
Member,
or
to make available to any study group, commission, or
the public.
4. General Policy. In general, an agency should not have
criminal law enforcement authority unless:
a. the agency's ability to perform an essential function
within its jurisdiction is significantly hampered by its lack of
criminal law enforcement authority;
b. the agency's need for such law enforcement authority
cannot be met effectively by assistance from law enforcement
agencies with such authority;
c. adequate safeguards. exist to ensure proper exercise of
the authority by the agency; and
d. the advantages attributable to the agencys possession of
the authority can reasonably be expected to exceed the
disadvantages that are likely to be involved in its exercise of
the authority.
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5. Guidelines. Before submitting to OMB for coordination and
clearance any proposed legislation or report on a pending bill
that would extend criminal law enforcement authority to an
agency, an agency shall make a determination that the proposed
extension of criminal law enforcement authority is in substantial
compliance with the following guidelines, as applicable:
a. Authority to Carry a Firearm. An agency should not be
authorized to permit an employee to carry a firearm unless:
(1) there is a significant likelihood that, in the course
of performing his assigned duties, the employee will be placed in
situations in which his use of a firearm would be permitted by
law to :
(i) protect himself from a threat of imminent death,
serious bodily injury, or kidnapping;
(ii) prevent another person from causing imminent
death or bodily injury to, or kidnapping of, a person who is
under his protection; or
(iii) prevent the imminent loss or destruction of
property of substantial value that is under his protection;
(2) it is unlikely that timely and effective assistance
will be available from another agency;
(3) the employee has completed an accredited course of
training in the carrying and use of firearms, and is currently
qualified in their use; and
(4) the agency agrees that, if the requested authority is
granted, the agency will establish policies and procedures,
approved by the Attorney General, for preventing the unauthorized
use or misuse of firearms by its employees, including a
requirement that an employee's authority to carry a firearm be
approved by a designated senior official of the agency on a
case-by-case basis.
b. Authority to Seek and Execute an Arrest or Search Warrant.
Except as provided in section 5f. of this Circular, an agency
should not be authorized to permit an employee to seek and execute
an arrest warrant or a search warrant unless the authority is
limited to the arrest of a person who has committed an offense
within the jurisdiction of the agency, or an offense involving
resistance to the employee's authority, or to a search for, and
seizure of, property related to such an offense, and:
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(1) there is a significant likelihood that, in the course
of performing his assigned duties, the employee will frequently.
encounter situations in which it is necessary to make such an
arrest or search;
(2) it is unlikely that timely and effective assistance
will, be available from another agency;
(3) the employee has completed an accredited course of
training in the execution of arrest and search warrants;
(4) the agency agrees that, if the requested authority is
granted, the agency will establish policies and procedures,
approved by the Attorney General, for preventing the unauthorized:
use or misuse of the power to seek and execute arrest or search
warrants by its employees.
c. Authority to Make a Warrantless Arrest. An agency should
not be authorized to permit an employee to make an arrest without
a warrant unless the authority is limited to the arrest of a.
person who the employee has probable cause to believe has
committed a felony, or a person who has committed a misdemeanor in
the employee's presence, and:
(1) there is a significant likelihood that, in the course
of performing his assigned duties, the employee will frequently
encounter situations in which it is necessary to make such an
arrest promptly;
(2) it is unlikely that timely and effective assistance
will be available from another agency;
(3) the employee has completed an accredited course of
training in the exercise of the power to arrest; and
(4) the agency agrees that, if the requested authority is
granted, the agency will establish policies and procedures,
approved by the Attorney General, for preventing the unauthorized
use or misuse of the power to arrest by its employees.
d. Authority to Serve a Grand Jury Subpoena or Other Legal
Process. An agency should not be authorized to permit an employee
to'serve a grand jury subpoena, a summons, a court order, or other
legal process unless:
(1) there is a significant likelihood that, in the course
of performing his assigned duties, the employee will frequently
encounter situations in which it is necessary to serve such
process;
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(2) it is unlikely that service can be made conveniently
or expeditiously by personnel of another agency;
(3) the employee has completed an accredited course of
training in the service of process; and
(4) the agency agrees that, if the requested authority is
granted, the agency will establish policies and procedures,
approved by the Attorney General, for preventing the unauthorized
use or misuse of the to power serve process by its employees.
e. Authority to Administer an Oath or Affirmation. An agency
should not be authorized to permit an employee to administer an
oath or affirmation unless:
(1) there is a significant likelihood that, in the course
of performing his assigned duties, the employee will frequently
encounter situations in which it is necessary, or desirable to take
a person's statement or testimony under oath or affirmation;
(2) it is unlikely that the oath or affirmation can be
administered as conveniently or expeditiously by personnel of
another agency;
(3) the employee has been trained in the requirements of
administering oaths and affirmations; and
(4) the agency agrees that, if the requested authority is
granted, the agency will establish policies and procedures,
approved by the Attorney General, for preventing the unauthorized
use or misuse of the power to administer oaths and a. affirmation
by its employees.
f. Authority to Use a Covert Investigative Technique. An
agency should not be authorized to permit an employee to use a
covert investigative technique unless:
(1) there is a significant likelihood that, in the course
of performing his assigned duties, the employee will frequently,
encounter situations in which it is necessary to use such a
technique;
(2) it is unlikely that timely and effective assistance
from an agency with expertise in the use of such a technique will
be available;
(3) the employee has completed an accredited course of
training in the use of such a technique; and
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(4) the agency agrees that, if the requested authority is
granted, the agency will establish policies and procedures,
approved by the Attorney General, for preventing unauthorized use
or misuse, or the appearance thereof, of such techniques by its
employees, including a requirement that an employee's authority to
use a covert investigative technique be approved by a designated
senior official of the agency on a case-by-case basis.
6. Additional Explanation. Additional details concerning the
interpretation of these guidelines are attached to this Circular.
7. Effective Date.. This Circular is effective on publication.
Any proposed legislation or report covered by this Circular that
has previously been submitted to OMB for coordination and
clearance under Circular No. A-19 and is pending before OMB should
be withdrawn and reconsidered in light of these guidelines.
8. Inquiries. Questions or inquiries regarding the requirements
of this Circular may be directed to the Assistant Director for _
Legislative Reference, Office of Management and Budget, Room 7202,
New Executive Office Building, Washington, D.C. 20503 (telephone:
(202)-395-4864). Questions or inquiries regarding criminal law
enforcement authorities generally may be directed to the Associate
Attorney General, Department of Justice, Washington, D.C. 20530.
David A. Stockman
Director
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A-1
ATTACHMENT A.
Circular No. A-
COMMENTARY'ON GUIDELINES FOR LEGISLATION INVOLVING
FEDERAL CRIMINAL LAW. ENFORCEMENT AUTHORITIES
1. In General. This attachment provides additional detail with
respect to the way in which the law enforcement guidelines
contained in Circular No. A- are to be interpreted and applied.
Citations to particular sections refer to the applicable sections
of the Circular.
2. General Policy. Section 4 sets forth in general terms the
fundamental criteria to be used in deciding whether to assign
criminal law enforcement authority to an Executive branch
department or agency whose primary mission is, not enforcement of
Federal criminal law. Section 5 addresses with greater
particularity the issues involved in considering the assignment
of specific kinds of law enforcement authority, such as authority
to carry firearms or to execute search warrants. Not covered by
these guidelines is the issue of providing Federal statutory
"protection" against violent crime to employees whose duties
include enforcement of Federal law. Although it may be desirable
to afford such "protection" to all Federal law enforcement
personnel.,. as a back-up to State statutes covering the.same
crimes, the issues involved in making that determination are not
the same as those raised by proposals to expand an agency's law
enforcement powers.
It should be noted at the outset that these guidelines are
deliberately couched in the negative. This approach is taken,
because ipdiscriminate grants of law enforcement power within the
Executive branch can have undesirable consequences, including the
inefficient use of limited law enforcement resources and the
imposition of unnecessary burdens on effective Federal law
enforcement. Thus, the guidelines emphasize the principle that
the assignment of criminal law enforcement authority to an agency
whose primary responsibility -- unlike the Federal Bureau of
Investigation (FBI), for example -- does not involve enforcement
of Federal criminal law should be the exception rather than the
rule.
The Circular's statement of general policy describes the
essential prerequisites to a grant of any type of criminal law
enforcement authority. The first and most important of these
requirements, set out in paragraph a. is that the agency have a
genuine need for the authority in question. The issue of need is
to be approached by asking whether lack of law enforcement
authority significantly hampers the agency's ability to perform
an essential function within its jurisdiction. To answer this
question, it is necessary to consider, first, the scope of the
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agency's jurisdiction; second, the nature of its essential
functions; and third, the effect of lack of criminal law
enforcement powers on its ability to perform those functions.
As to the first of these considerations (the scope of the
agency's jurisdiction), the mere existence of agency jurisdiction
to enforce certain laws -- even if some of those laws carry
criminal penalties -- does not by itself warrant granting the
agency criminal law enforcement powers. Virtually all agencies
have some form of criminal jurisdiction. In many instances,
however, criminal sanctions have been provided for conduct that
bears no_resemblance to offenses within the traditional. bounds of
Anglo-American criminal law. In these instances, resort to the.
criminal enforcement process would usually be inappropriate.
Moreover, even statutes that justifiably carry criminal penalties
ordinarily provide civil or administrative sanctions, as well.
With respect to these statutes, the better enforcement policy
ordinarily is to rely on such non-criminal inducements to ensure
compliance with the law, reserving criminal prosecution as a
measure of last resort for the most serious cases.
The second consideration (the nature of the agency's essential
functions), is closely related to the first. It.involves an
examination of the agency's responsibilities with respect to the
matters within its jurisdiction., Those responsibilities may be
purely administrative, or they may involve the performance of
investigative, protective, or guard functions, as well. In these
instances, it is necessary to determine whether performance of
the function is essential, or only tangential, to accomplishment
of the agency's mission.
Assuming that an agency has criminal enforcement jurisdiction,
that a. fair number of offenses within its jurisdiction warrant
application of criminal sanctions, and that effective performance
of the agency's mission requires that it take steps to prevent or
detect such offenses, the final consideration to be weighed is
whether the agency's lack of criminal law enforcement authority
significantly hampers its ability to take these steps. This will
depend, of course, on the nature of the steps to be taken and on
the type of law enforcement power that is lacking. The absence
of authority to execute a search warrant, for example, would not
seem an impediment to an agency whose enforcement jurisdiction is
limited to the performance of protective or guard functions. In
short, an agency should not be given criminal law enforcement
authority unless it can demonstrate that lack of authority
significantly impairs its ability to discharge.a function that is
essential to the performance of its statutory responsibilities.
If the agency can make such a demonstration, it will then be
necessary to consider the remaining factors.
Paragraph b. of section 4 assumes that an agency has met the test
of need described in paragraph a. and raises the question whether
that need can be met effectively by assistance from a traditional
law enforcement agency.
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,One such alternative approach, for example,-might be to have the
FBI or the Secret Service make an arrest on behalf of the agency.
Another might be to confer temporary law enforcement authority on
certain employees of the requesting agency by designating them
special duty agents of the Department of Justice for a limited
period. A number'of factors should be considered in deciding
whether such an alternative is preferable. Among these are the
kind of assistance required; the length of time during which the
assistance will be needed; the ability and willingness of
traditional law enforcement agencies to provide the assistance in
a timely manner., in light of the restrictions imposed upon them
by their own statutory jurisdiction and responsibilities,
enforcement priorities, and resources; and the legal basis for
conferring special deputy agent status on employees of non-law
enforcement agencies.
The provision of timely and effective support by a traditional
law enforcement agency can best be assured by means of a
Memorandum of Understanding. Typically, such a memorandum
reflects an agreement between an agency lacking law enforcement
authority and one having such authority concerning the
circumstances and conditions under which the latter will render
law enforcement assistance to the former. Only if a satisfactory
Memorandum of Understanding cannot be.arranged, and if no other
method is available for ensuring timely and effective assistance
from a traditional law enforcement agency, should a non-law
enforcement agency be authorized to exercise law enforcement
powers in-aid of its mission.
Paragraph c. of section 4 specifies, as another prerequisite to
granting an agency law enforcement authority, that adequate
safeguards exist to ensure proper exercise of the authority by
the agency. This requirement raises questions of training,
supervision, and oversight in relation to the agency's ability to
exercise he requested authority in a professional manner. As is
made clear in the following specific guidelines, an agency must,
provide assurance that the employees who it permits to exercise
law enforcement powers have received the training necessary to
qualify them to exercise those powers properly. In addition, the
agency must provide those employees with adequate supervision,
pursuant to policies and procedures approved by the Attorney
General, to prevent unauthorized use or misuse of authority.
Finally, the agency's performance in exercising law enforcement
authority should be subject to effective oversight within the
Executive branch and by the appropriate committees of Congress.
To facilitate such oversight, the agency should prepare annually
a brief statistical summary of its use of the particular law-
enforcement powers it has been granted.
Paragraph d. of section 4 requires a judgement that the
advantages attributable to the agency's possession of the
authority can reasonably be expected to outweigh the
disadvantages likely to be involved in the agency's exercise of
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the authority. Foremost among the possible disadvantages to be
considered in this balancing process are the risks of
interference with the work of traditional law enforcement
agencies. Such interference might occur as a result of the
difficulties of coordinating the investigative activities of
numerous agencies or as a result of inadvertent intrusion into
the jurisdiction of traditional law enforcement agencies. It
might take the form of conflicting undercover operations.or the
making of untimely or unlawful arrests or seizures that could
prejudice other investigations or jeopardize prosecutions. Also
to.be considered under this heading is the danger that an
agency's misuse of authority might lead Congress to restrict the
exercise of such authority by traditional law enforcement
agencies as well as by the agency at fault.
Monetary costs should be considered as well. These might include
the expenses of additional training and equipment that would be
incurred by the agency; the cost of providing early retirement
and civil service benefits to a larger number; of Federal law
enforcement officers (to the extent that an obligation to provide
such benefits would follow a grant of law enforcement authority);
the waste of resources that would result from duplicative
investigative capabilities and efforts; and the financial drain
of having to defend, and pay judgments in, civil suits for misuse
of law enforcement authority. The assessment of these costs must
be predicated, of course, on reasonable approximations and
estimates.
Finally, there is a.category of potential disadvantages that,
while, difficult to quantify, nevertheless deserve consideration.
Among these might be a slackening of the agency's non-criminal
enforcement efforts, additional burdens for the Government under
the Freedom of Information and Privacy Acts, and heightened
concerns over interference with civil liberties as a result of
proliferation of Federal agencies with law enforcement powers.
Against the potential disadvantages that may be involved.in
granting a particular type of law enforcement authority to a
particular agency must be weighed the potential benefits in terms
of the agency's enhanced ability to carry out its mission and the
consequences of its improved performance for effective and
efficient Federal law enforcement in general. The agency's
performance might be.improved as a result not only of its ability
to exercise new powers but also as a consequence of its greater
ability to attract and retain highly qualified employees by
holding out to them the prospect of having the authority to
perform their duties effectively. An additional benefit could be
avoidance of the delays and drains on the resources of
traditional law enforcement agencies that might result from
relieving them of obligations to render assistance to other
agencies. .
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Guidelines.
a. Authority to Carry a Firearm.
Of all the forms of law enforcement authority that may be
conferred on a Federal agency, the authority to permit its
employees to carry firearms has the greatest potential for
serious harm to individuals and to the interests of the
Government. Yet it is often essential to the effective
performance of an employee's duties that he be allowed to
exercise such authority. This guideline recognizes the need for
Federal employees to carry firearms in certain situations, but at
the same time establishes limiting criteria to ensure that the
potential for harm is minimized.
The first of these criteria is the requirement that there be a
significant likelihood that the agency personnel on whose behalf
firearms authority is sought will, in the course of performing
their assigned duties, confront situations in which the use of a
firearm would be lawful. Thus, firearms authority should not be
granted on the basis of a mere possibility that an employee may
at some time in the course of his work find it comforting or even
useful to have a gun. Such a loose standard would permit the
arming of hundreds of employees who have no real need to carry
weapons. Instead, there must be a substantial probability that
the employee's work will place him in situations in which it is
essential that he be armed and in which his use of a firearm
would be lawful. Whether such situations are likely to.arise in
the course of an employee's duties will depend largely on the
nature of the offenses he will be called upon to prevent or
investigate, as well as on the types of offenders he can be
expected to confront.
As a general matter, the carrying of a firearm would be warranted
when: (i) the employee will be threatened with imminent death,
serious bodily injury, or kidnapping; (ii) the employee will be
required to prevent another person from causing imminent death or
bodily injury to, or kidnapping of, a person who is under his
protection; and (iii) the employee will be required to prevent
imminent loss or destruction of property of substantial value
that is under his protection.
Examples of situations that would meet these requirements are:
(i) when the employee's duties require him to make arrests or
execute search warrants; (ii) when the employee is assigned to
protect another person who there is reason to believe may be
subjected to acts or threats of violence; and (iii) when the
employee's job is to protect property. of substantial value which
there is reason to believe may be the subject of attempted theft
or destruction. A greater severity of potential bodily injury is
necessary to justify the carrying of a weapon for self-protection
(serious bodily injury) than is needed to warrant the carrying of
a firearm to protect others (any degree of bodily injury). This
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.distinction,is made because an employee's statutory duty to .
protect others requires that he safeguard them from attempts to
inflict any-'kind of physical injury, whereas his use of deadly
force for self-protection is warranted only when he is threatened
with serious bodily injury.
Subparagraph (1)(iii) of section 5a. covers only situations in
w hich'there is no reason to anticipate danger to the employee
himself or to a person under his protection. Ordinarily, the law
does not permit the use of a firearm for the sole purpose of
protecting property. In some situations, however, the
extraordinary value of the property to be protected may justify
the carrying of a firearm. How valuable the property must be to
warrant armed protection cannot be specified in precise terms.
Although some property may not have great intrinsic value, its
loss or destruction could nevertheless have very serious
consequences. Certainly, an appropriate measure of value should
encompass property the loss or destruction of which would cause
substantial damage to a vital interest of the. United States. For
example, protection of property essential to maintaining national
security, or to ensuring the uninterrupted flow of energy or
communications, would warrant the carrying of firearms, even if
persons are not likely to be injured directly by threats to such
property. Of course, if the value of.the property is such that
the law does not permit deadly force to be used to protect it, an
employee responsible for safeguarding the property should not be
authorized to carry a firearm.
Paragraph (2) of section 5a. requires the exploration of possible
alternatives before an agency is authorized to permit its
employees to carry firearms. Only if it appears unlikely that
timely and effective assistance will be available from another
agency should such authority be granted. Ordinarily, it will be
impractical to seek outside assistance if the employee works in a
remote area, if communication is difficult for other reasons, or
if the need for .a weapon arises unexpectedly. On the other hand,
if the danger can be anticipated and met effectively by assigning
an employee with arms-carrying authority to accompany the
employee who lacks such authority, that course should. be
preferred.
The third requirement of section 5a., set forth in paragraph (3),
is that the employee who is to be authorized to carry a firearm
must have completed an accredited course of training in the
carrying and use of firearms and must be currently qualified in
their use. The purpose of this requirement is to ensure not only
that employees possess the technical expertise.to handle firearms
safely and effectively, but also that they have the ability to
exercise sound judgment regarding the circumstances under which
it is appropriate to use their weapons. The first part of this
requirement could be met by completion of the appropriate courses
at the FBI's training facility at Quantico, Virginia, the Federal
Law Enforcement Training Center at Glynco, Georgia, or the
equivalent which provides necessary knowledge or competency.
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The second part of the requirement mandates periodic reevaluation
of the employee's ability to exercise discretion in the use of
firearms and periodic review, by means of firing range
examinations, of his proficiency in the use of the particular
type of firearm he is authorized to carry.
As a.final safeguard against unauthorized use or misuse of arms
carrying authority, paragraph (4) requires that the agency agree
to establish policies and procedures, acceptable to the Attorney
General, to govern the manner in which such authority; is assigned
and exercised within the agency, and to ensure the accountability
of individual employees and their superiors for the proper use. of
such authority. These policies and procedures should include a
requirement that an individual's authority to carry a firearm be
approved on a case-by-case basis by a designated senior official
of the agency.
b. Authority to Seek and Execute an Arrest or Search
Warrant.
.The authority to seek and execute arrest and search warrants,
covered by section 5b..is not a general authority to arrest and
search for evidence relating to any type of offense. Rather, the
powers referred to cover only offenses over which the agency has
jurisdiction and offenses involving resistance to an employee's
authority (e.g., assaulting the employee to prevent him from
exercising his authority to execute a search or serve a
subpoena). An additional limitation, signalled by the reference
to section 5f., is that the search warrant authority referred to
does not include power to seek authorization for, or to engage
in, any type of electronic surveillance. This authority is
treated separately, along with other covert investigative
techniques (e.g., engaging in undercover operations and using
paid informants), the exercise of which requires particular care.
and supervision.
Regarding the necessity for conducting ,searches, one factor to be
considered is whether an alternative method, such as the use of a
subpoena, is available and would be equally effective. Another
consideration is whether, if the agency already has
administrative subpoena power, any additional search warrant
authority is needed.
Paragraphs (2), (3), and (4) involve essentially the same
considerations as the counterpart requirements. for obtaining
authority to carry firearms. With reference to paragraph (2), as.
it relates to search warrant authority, additional factors to. be
considered are the location of the search, the nature of the
items to be seized, the need for special expertise in identifying
those items, and the amount of time that will be needed to
complete the search.
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c. Authority to Make a Warrantless Arrest.
Unlike section 5b., which limits arrest and search warrant
authority to offenses within the agency's jurisdiction and
offenses involving resistance to an employee's authority, section
5c. deals with broader authority to make warrantless arrests for
any offenses committed in the employee's presence or for felonies
committed outside his presence for which there is probable cause
to arrest. Thus, in addition to permitting a warrantless arrest.
for an offense over which the agency has jurisdiction and an
offense involving resistance to the agent's authority, section
5c. provides a foundation for the warrantless arrest of a person
who the employee has probable cause to believe has committed a
felony under Federal or State law, as well as a person who, in
the employee's presence, commits a misdemeanor in violation of
Federal or State law. This provision recognizes the desirability
of permitting a Federal employee in an emergency situation to
exercise common law arrest power. Explicit recognition of
Federal arrest authority in emergency situations involving
violations of State law should serve to protect Federal employees
against uncertainties concerning their authority that might arise
under State laws governing citizens' arrests.
Like the authority to carry a firearm and the power to seek and
execute arrest and search warrants, authority to make warrantless
arrests should not be.granted merely on the basis of convenience
or speculative need. Instead, before an agency should.be
authorized to permit its employees to make warrantless arrests,
it should make a convincing showing that, in the course of their
duties, its employees can frequently be expected to encounter
situations that present a need to arrest offenders promptly
rather than waiting until warrants have been obtained. Examples
of sufficiently exigent circumstances are situations in which the
offense threatens immediate injury to persons or property,
situations in which delay might reasonably be expected to permit
the offender to escape, commit additional offenses, or destroy
evidence, and situations in which the offense threatens to thwart
the employee in carrying out his duty. If the agent is
authorized under this guideline to make a warrantless arrest, he
may also, of course, conductSa warrantless search incident to
arrest.
Whether another agency can be relied upon to make the arrest
depends on the same factors that determine whether the arrest
must be made promptly, as well as on the availability of
personnel from the other agency and the time it would take them
to provide assistance.
Required safeguards against unlawful or inappropriate use of
arrest authority (i.e., training, supervision, and oversight),
backed up by approved policies and procedures are similar to
those applicable to the carrying of firearms.
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d. Authority to Serve a Grand Jury Subpoena or Other Legal
Process.
Whereas authority to carry firearms, make arrests, and conduct
searches should be granted only in response to a need
that cannot be met by calling on. another agency, power to serve a
grand jury subpoena or other process may be conferred on the
basis of a less rigorous standard: when there is a need that can
be met more conveniently or expeditiously by the employee than by
personnel of another agency. Factors bearing on the application
of.this guideline include the probable effectiveness of an
administrative subpoena (if the agency has authority to issue.;
such subpoenas), time constraints, familiarity of the employee;
with: the appearance and likely whereabouts of the person to be
served, and any difficulties that might be anticipated in making
service. In connection with this last factor, if there is reason
to believe that the employee may be placed in danger in the
course of attempting to make service, and if the employee is not
authorized to carry a firearm, assistance should be sought from.
an agency whose personnel do have firearms authority.
Considerations'relevant to the requirements set forth in
paragraphs (3) and (4) are similar to those discussed above in
connection with the same requirements with respect to other types
of authority. .
e. Authority to Administer an Oath or Affirmation.
Unlike the other authorities discussed above that should not be
conferred except out of necessity, authority to administer oaths
and affirmations may be granted when it is either necessary or
desirable that the employee take.a statement or testimony that is
sworn, or formally affirmed, to be true. Greater latitude is
permitted here, because exercise of the power is not likely to be
intrusive or to have harmful consequences, and because of the
difficulty of making a determination that administration of an
oath or its equivalent is necessary in order to ensure that the
person being questioned responds fully and truthfully.
In other respects, the requirements of this guideline are
essentially the same as the corresponding requirements in the
preceding guidelines, except that the employee's training need
not have been acquired through an accredited course of training.
In light of the lesser risk of harm from misuse of this
authority, less formal training is acceptable as a basis for
permitting employees to administer oaths and. affirmations.
f. Authority to Use a Covert Investigative Technique.
The use of covert investigative techniques is often a necessary
part of the process of Federal law enforcement, particularly with
respect to offenses that, unlike common law crimes, are committed
in secrecy or are readily concealed. On the other hand, because
these techniques involve secrecy on the part of the Government,
they are often perceived as subject to abuse. Moreover, when
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:abuses do occur, they frequently threaten fundamental rights and
invariably jeopardize the Government's investigation or
prosecution' For these reasons, an agency should not be
authorized to permit its employees to employ these techniques
except under the most compelling circumstances and with the
strongest possible guarantees against misuse.
With respect to each technique, the essential questions bearing
on agency authorization are whether fulfillment of the agency's
mission is likely to require regular use of the technique;
whether, for reasons of economy, effectiveness, or otherwise, it
.would be preferable to rely on an agency with established
expertise in the use of the technique; and whether the agency's
policies and practices governing the use of the technique, as
well as the training of its employees, give satisfactory
assurance both that the technique will not be abused and that the
appearance of abuse will be avoided. As an additional safeguard,
the agency's policies and practices regarding the use of covert
investigative techniques should require that the use such
techniques be approved on a case-by-case basis by a designated
senior official of the agency. Such high level approval is
desirable because, as noted above, the use of these techniques is
often subject to criticism and carries unusual potential for
causing grave harm to individuals a well as to Federal law
enforcement interests.
It should be noted that section 5f. does not address the
technique-of attempting to'secure cooperation by promising a
potential witness that he will not be prosecuted or that he will
not be prosecuted fully, by promising a favorable sentencing
.recommendation, by offering him participation in the Witness.
Protection Program of the U.S. Marshals Service, or by holding
out to him the prospect of a similar benefit. Appropriate use of
such promises requires careful consideration of a number of
factors including the degree of the potential witness's
complicity relative to others involved in the case and the value
of his cooperation in light of the requirements for successful
prosecution. Ordinarily, the prosecutor rather than the
investigator is in the best position to assess these factors and
determine whether a promise is warranted. Accordingly, Federal.
investigators should not be given independent authority to make.
such promises in return for cooperation. This does not mean, of
course, that an employee may not make such an offer when
specifically authorized by the prosecutor.
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