Report on Capitol Police preparedness for Jan. 6 shows lack of clarity on use of force

Report emphasizes unique nature of Jan. 6 attack on Capitol

Security personnel barricade the door of the House chamber as rioters try to break in to the joint session of Congress certifying the Electoral College vote on January 6, 2021. (Tom Williams/CQ Roll Call)
Security personnel barricade the door of the House chamber as rioters try to break in to the joint session of Congress certifying the Electoral College vote on January 6, 2021. (Tom Williams/CQ Roll Call)
Posted March 7, 2022 at 6:37pm

The Capitol Police department needs to better understand and address potential officer hesitancy to use force, the Government Accountability Office found in a report released Monday regarding steps the department should take to improve preparations for violent demonstrations like Jan. 6.

The report surveyed 315 Capitol Police officers who worked the day of the insurrection, though not all answered every question. On use of force, 207 officers said they were somewhat or well prepared while 96 responded they were slightly or not at all prepared. The GAO survey also found 80 officers who identified concerns related to use of force, and 57 of those officers indicated they felt the leadership culture at the department generally discouraged them from using force or that they were hesitant to use force because of a fear of disciplinary actions.

One officer described this sentiment in detail: “‘Most importantly, and most difficult, is to try to change the culture where officers are afraid to use force when appropriate. I saw too many instances where officers were questioning whether they could use force because they were afraid of getting in trouble. If ever there was a time when force is appropriate, a mob violently forcing their way into the Capitol would be it.’”  

The GAO noted that several officers said they felt the department “would not back them, even when force was used under justifiable circumstances.”

Capitol Police officials told the GAO in October 2021 that the department neither encourages nor discourages officers from using force, but instead trains them to use the appropriate level of force necessary and to aim to de-escalate situations so force is not needed. Further, the Capitol Police officials said disciplinary action by the department related to officer use of force has historically been extremely rare.

The Capitol Police use of force policy in place leading into the Jan. 6 attack said that “officers are only authorized to use the level of force that appears reasonably necessary to bring a subject under control while protecting the lives of officers and others.”

Further, it said officers are expected to “evaluate and respond to situations based on the totality of circumstances that can include the number of people the officer must contend with; the size, age, and condition of both the officer and suspect; the presence of bystanders; and the availability of weapons.”

That policy is organized into five levels, four less-lethal categories — cooperative, contact, compliance and defensive —and lethal force. Lethal force can be used under two circumstances, the GAO report says.

The first is “to defend human life, including the officer’s own life, or in defense of any person in imminent danger of serious physical injury.” The second is “to apprehend or prevent the escape of a fleeing subject under certain conditions (e.g., the officer reasonably believes that the person to be apprehended poses an imminent threat of death or serious physical injury to the officer or others if apprehension is delayed).”

Several officers surveyed said they did not feel empowered to decide if they could use force and felt they needed to ask their supervisor for permission to do so. Officers stated they were told by supervisors and management that they should not use force Jan. 6.

One officer said Capitol Police trainers were “‘were extremely vague to us about use of force and when it is proper and when it is not.’”

On the day of the attack, Capitol Police Lt. Michael Byrd fatally shot Ashli Babbitt, a pro-Trump rioter as she attempted to break into the Speaker’s Lobby near the House floor during the insurrection. The Justice Department decided not to bring charges against Byrd, and the Capitol Police’s internal investigation determined his conduct was “lawful and within Department policy.”

CQ Roll Call has reported on lack of direction from leadership and vague instructions on use of force regarding Jan. 6.

Some officers indicated optics were affecting security decisions, including use of force and physical security needs. Specifically, 41 officers said optics, for example, the appearance of officers as threatening, played a role in security-related decisions. Several attributed the department’s use of force culture and the discouragement to use force to an optics concern.

The department “‘is always worried about optics and never really want us to go hands on with the public,’” one officer said. Officers also said the optics concern was related to department leadership’s perception of the wants of lawmakers.

There were differing views on whether more force should have been used in a scenario like Jan. 6. Some officers said more lethal force would have been justified, but that force was not used because of a lack of training or fear of the department not supporting their use of force. Other officers said more lethal force would have resulted in worse outcomes.

“The Department appreciates the review by the U.S. Government Accountability Office. We agree with the recommendations, which we have already addressed,” Tim Barber, a department spokesperson, said in a statement.

The Capitol Police department has taken several actions to clarify use of force since Jan. 6, including an additional guidance shortly after the Capitol attack and mandatory briefings with the department general counsel’s office, in which they provided an overview of the use of force policy, answered questions from officers and discussed specific scenarios officers may encounter.

Capitol Police officials said in July 2021 the discussions “addressed myths and misconceptions related to the use of force, such as whether the department will provide lawyers for officers in the event there is civil litigation.”

An officer said the use of force briefing was helpful in restoring faith that the department will support an officer in the event their actions were legally justified, but other officers said additional clarity on use of force was still needed.

Ultimately, the GAO found the Capitol Police department has taken positive steps to improve shortcomings, but still has work to do.

“The department has taken some positive first steps, such as conducting one-time discussions on use of force with officers following the attack and using supplemental appropriations to combat the higher-than-normal attrition, but needs to better understand and address potential officer hesitancy to use force, concerns with the department, and morale,” the GAO report said.

Rep. Jason Crow, who was trapped in the House gallery during the insurrection, led a letter with over 100 members demanding the GAO investigate the security lapses at the Capitol, including among the Capitol Police. 

“Today, I am grateful to GAO for releasing a comprehensive report outlining what happened on 1/6 and recommendations to guard against future attacks,” the Colorado Democrat said in a statement. “Protecting the seat of our democracy is not a partisan issue and I look forward to working with my colleagues to help implement these recommendations. These brave men and women put their lives on the line every day to protect the Capitol — it’s our responsibility to ensure they have the resources and a clear protocol in place so they can do their jobs.”

Other notable findings:

  • Most Capitol Police officers — over 200 — said they lacked sufficient guidance before and during the insurrection.
  • More than half of officers said they experienced some type of assault from rioters on Jan. 6 — 176 officers said they were verbally assaulted and 123 said they were assaulted physically. 
  • Officers’ responses were mixed when it came to whether they felt prepared to apply crowd control tactics —134 officers said they felt well or somewhat prepared to do so while 153 said they were slightly or not at all prepared.
  • More than half of officers, 180, said more training was needed.
  • Ninety-nine officers said there was a lack of leadership and communication on Jan. 6, and 55 officers said leadership needed to be improved or changed. 
  • Over about a seven-hour stretch, insurrectionists assaulted police officers, including about 114 Capitol Police officers who reported injuries, according to GAO. 
  • “While there have been specific, violent incidents at the Capitol complex in the past, the size and nature of the January 6 attack was unprecedented,” the GAO report said.
  • Officers were not equipped with stun guns on Jan. 6, the GAO report says, noting that the department began to issue such electronic control devices to officers in October of 2021.
  • Approximately 150 Capitol Police officers reported 293 use of force incidents on Jan. 6. All were deemed justified by the department.
  • These incidents involved pushing (91), batons (83), withdrawing a firearm from its holster (37), chemical spray (34), other physical tactics (22), pointing a firearm at a person (17), less-lethal munitions (7), a diversionary device (1) and firing a firearm (1).

GAO recommendations to Capitol Police:

  1. Better understand officers’ comprehension of the department’s expectations and policies related to use of force, including identifying underlying causes for potential officer hesitancy to use force.
  2. Make changes, as appropriate, to policy, guidance, and training to address findings from actions taken to better understand officers’ comprehension of the department's expectations and policies related to the use of force.
  3. Provide more refresher crowd control training to prepare all officers, including those who are not part of the CDU, for large-scale and potentially violent demonstrations.
  4. Provide officers with more realistic training.
  5. Identify underlying factors related to employee concerns with the department following the Jan. 6 attack and develop an action plan to address these issues.