Review of Shooting Incidents in the Department of Justice

E & I Report I-2004-010
September 2004

U. S. Department of Justice
Office of Investigative Agency Policies
Washington. D.C. 20530

September 20, 1995

MEMORANDUM FOR THE ATTORNEY GENERAL

THROUGH:	THE DEPUTY ATTORNEY GENERAL
FROM:	LOUIS J. FREEH DIRECTOR, INVESTIGATIVE AGENCY POLICIES
SUBJECT:	Resolutions 12 and 13
PURPOSE:	To obtain approval for implementation of Resolutions 12 and 13, which are attached
TIMETABLE:	Immediate
DISCUSSION:	Resolution 12 addresses Department of Justice critical incident response. Resolution 13 creates policy regarding Department of Justice shooting incident reviews. These Resolutions represent consensus recommendations of the Executive Advisory Board of the Office of Investigative Agency policies. No party to these Resolutions has advised that it wishes to appeal either of them.
RECOMMENDATION:	Approval.

APPROVE	____________________ September 21, 1995	Concurring component: OLC
DISAPPROVE	____________________
OTHER	____________________

RESOLUTION 13

Pursuant to the Attorney General's Order Number 1814-93, dated November 18, 1993, and in my capacity as Director of Investigative Agency Policies, I hereby issue the following resolution concerning the conduct of post-shooting incident reviews.

Background

The Attorney General requested that the Office of Investigative Agency Policies ("OIAP") consider the means by which Department of Justice ("DOJ") investigative agencies conduct post- shooting incident reviews. I referred this matter to the Firearms and Ammunition Working Group ("FAWG").⁵⁰ Resolution is the product of the FAWG's efforts and has been approved by the OIAP Executive Advisory Board ("EAB").

Discussion

According to the terms of the Order creating the OIAP, I have been authorized, "in the areas of overlapping jurisdiction of the criminal investigative agencies," to:

(1) Take all steps necessary to improve coordination among the criminal investigative agencies of the Department [of Justice], both within the United States and abroad; (2) Assure, to the extent appropriate, consistent operational guidelines for the criminal investigative agencies of the Department [of Justice]; (9) Provide advice to the Attorney General and the Deputy Attorney General on all investigative policies, procedures and activities that warrant uniform treatment or coordination among the criminal investigative agencies of the Department; [and] ...(11) Perform such other functions as may be necessary for the effective policy-level coordination of criminal investigations by the criminal investigative agencies of the Department [of Justice], particularly with respect to drug trafficking, fugitive apprehension, violence, and related areas, and for the elimination of waste and duplication in these functions...

Order Number 1814-93, Section (b).

Attached to this Resolution as Exhibit A is the proposed policy and accompanying commentary concerning the conduct of post-shooting incident reviews. I believe that this policy and commentary set forth appropriate general guidance to the agencies. Furthermore, that general guidance is balanced with appropriate deference to the specific needs of the agencies.

This Resolution does not create or confer any right or benefit on any person, public or private. Nothing in it, its attachments, or associated documents is intended to restrict authority as provided by law, statute, or regulation.

Conclusion

As I noted above, this Resolution has been approved by the EAB. Further, I have been advised that no OIAP member agency will appeal this Resolution.

_______________________ Dated: September 20, 1995           Washington, D.C.

LOUIS J. FREEH Director of Investigative Agency Policies

Policy Statement
on Reporting and Review of Shooting Incidents

1. Reporting Requirement. Every shooting incident by a Department of Justice ("DOJ") employee must be reported, documented, and investigated. An exception to this requirement would be weapons harmlessly discharged in a training or recreational environment. Questions regarding the need to report the discharge of a weapon should be resolved by contacting a designated component Headquarters Senior Manager for guidance.

2. Shooting Inquiry. The circumstances surrounding the shooting incident will dictate the nature of the report(s) submitted and the level of investigation and review to which the incident is subjected. In all cases, component Senior Management must take prompt and appropriate measures to ensure, to the greatest extent possible, that DOJ shooting inquiries are thorough and objective.

3. Investigative Discretion. The decision whether a shooting inquiry will be conducted by investigators assigned to the field office where the incident occurred or by investigators assigned to a component Headquarters Office of Inspection or other Headquarters element, will be made by designated--component Headquarters Senior Management following consultation with field office Senior Management.

4. Shooting Investigation Team. ("SIT"). The SIT, regardless of origin, will be comprised of sufficient qualified personnel to ensure that a logical, thorough, objective, and factual inquiry is conducted and documented. The results of this inquiry should be memorialized in a comprehensive report appropriate for the type of shooting being investigated.

5. Shooting Incident Review. All shooting incident documentation, including investigative reports, will be reviewed by an independent review committee designated by each component. The purpose of this committee is:

   1. to act as an objective administrative "check and balance" for the reporting and investigative process;

   2. to determine the reasonableness of the application of deadly force, in accord with the DOJ Deadly Force Policy and the law; and,

   3. to provide component Senior Management with appropriate analyses observations and recommendat1ons concerning operational, training, and other relevant issues, including the need for referral for further administrative or disciplinary review, if deemed necessary.

6. Policy Guidelines. At a minimum, component shooting incident policies shall include, but not be limited to, the following:

   1. a clear definition of what constitutes a reportable shooting incident;

   2. instructions regarding the content of the initial report that a shooting incident has occurred;

   3. instructions regarding to whom, by what means (telephone, teletype, written communication, etc.), and within what time parameters shooting incidents are initially reported;

   4. instructions regarding the content and format of all documents, including investigative or administrative reports, relating to the shooting incident inquiry;

   5. instructions regarding deadlines for submitting the results of shooting incident inquiries;

   6. instructions regarding the composition of Shooting Investigation Teams and Shooting Incident Review Committees.

   7. instructions regarding the timely reporting of planning, judgment, oversight, training, safety, or other relevant "lessons learned" that were disclosed during the shooting incident inquiry and which may compromise operations or the safety of component personnel;

   8. instructions regarding measures to be taken, particularly during the investigation of operationally or otherwise sensitive shooting incidents, to ensure that DOJ shooting incident inquiries are thorough, factual, and objective;

   9. instructions encouraging the recognition and accommodation, as appropriate under the circumstances, of multiple interests and jurisdictions following a shooting incident; and,

   10. instructions regarding the need to complete the shooting incident review process expeditiously, to include documenting circumstances which may delay reporting, e.g. waiting results of laboratory analyses.

7. Lessons Learned. Operational, safety, training or other relevant issues disclosed during the investigative or review process should be promptly communicated to component employees, and must be incorporated in policy manuals and training curriculae, as appropriate.

8. Rights of Third Parties. Nothing in this policy and the attached commentary is intended to create or does create an enforceable legal right or private right of action.

Commentary Regarding the Shooting Incident
Reporting and Review Process

1. Introduction

   The Department of Justice ("DOJ") hereby establishes a uniform policy with respect to the reporting and review of shooting incidents. The policy and this commentary provide practical guidance for DOJ law enforcement component officials tasked with reporting, documenting, investigating, and reviewing reports detailing the discharge of firearms during the conduct of official business. The policy is intended to ensure that (1) shooting incidents are investigated and reviewed commensurate with the type of incident involved, and (2) documented in a manner which is thorough, factual, and objective.

   This policy is the product of discussions among DOJ's law enforcement components and the advice of their respective offices of legal counsel. As a matter of principle, this document does not attempt to dictate how individual components implement the policy nor encroach upon the prerogatives of their Senior Management, but rather establishes guidelines for the reporting, investigation, documentation, and review of shooting incidents.

2. DEFINITIONS

   For the purposes of this policy, a "shooting incident" means:

   1. The intentional or unintentional discharge of a firearm by a DOJ law enforcement employee, on or off duty, under circumstances which warrant official notice or review. Weapons harmlessly discharged in connection with training or recreation are not included in this definition and, except as noted below, need not be reported.

   2. The discharge of a firearm by anyone during the course of DOJ-related official business. If a shooting incident occurs during a DOJ joint or task force investigation and DOJ personnel are either not present or not directly involved, component Senior Management may exercise discretion regarding the levels of investigation and review to which such shooting incidents are subjected, and may defer subsequent investigations to local authorities.

   3. The discharge of a firearm in defense against vicious animals.

   4. The discharge of a firearm resulting in self-inflicted injuries or injuries to another person.

   5. The discharge of a firearm by a DOJ employee resulting in an investigation by any law enforcement agency.

   Reporting Requirement - the necessity for promptly advising a designated component Headquarters Senior Manager that a shooting incident has occurred.

   Shooting inquiry - the investigative process which must follow any shooting incident, except as noted in Paragraph (1) in the statement of policy.

   Shooting incident review - the post investigation administrative process conducted by an independent review committee designated by each component.

3. INITIAL REPORTING

   The initial report is intended to promptly (1) document the shooting incident and (2) involve a designated Senior Manager in appropriate oversight of the decisional and investigative process. The initial report must contain sufficient information to allow Senior Managers to make informed judgments regarding the necessity, type, and complexity of subsequent inquiries.

   Field office and Headquarters Senior Management will ensure that initial relevant details regarding the incident are documented and will establish by whom and to what extent the incident will be investigated.

4. Shooting Incident Inquiries Generally

   Shooting incident inquiries should be conducted with due regard for the physical, mental, and emotional well-being of involved employees, their families, co-workers, and other persons, including victims and witnesses. The purpose of the investigative, reporting, and review process is to provide Senior Management with a factual basis for evaluating operational activities; assessing the reasonableness of the conduct; and, determining the effectiveness of training, planning, judgment, and other factors, which may compromise operations or the safety of employees.

   The circumstances surrounding the shooting incident will dictate the complexity of the investigation conducted, the nature of the report(s) submitted, and the level of review to which the incident is subjected. These decisions will be made by a designated component Headquarters Senior Manager following consultation with field office Senior Management. It's essential that sufficient oversight of this critical process be exercised to ensure that: (a) a thorough, factual, and objective investigation is conducted; (b) the results of the inquiry are memorialized in a comprehensive report appropriate for the type of incident being investigated; and (c) that potential conflicts of interest are avoided, including even the appearance of conflict of interest or impropriety.

   Inquiries should be conducted to achieve, at a minimum, the following objectives:

   1. A thorough, factual, and objective investigation;

   2. Levels of investigative complexity and review appropriate for the type of incident involved;

   3. A thoroughly documented report which is appropriate for the type of incident involved and includes all relevant information necessary for accurate and objective analysis;

   4. Objective Senior Management oversight of the investigative and review process;

   5. Prompt reporting of identified planning, judgment, oversight, training or other relevant issues which may compromise operations or the safety of persons involved;

   6. Appropriate, timely recommendations to Senior Management regarding operational, training, safety, or other issues including, if necessary, referral to appropriate entities for further administrative or disciplinary review;

   7. Prompt follow-up on findings and recommendations including appropriate policy or manual changes; and,

   8. The ability to conduct meaningful shooting data and trend analyses.

   The shooting incident review is intended to act as a "check and balance" for the investigative process and to provide appropriate objective analyses, observations, and recommendations to the component's Senior Management.

5. Compliance with Policy Guidelines

   Within ninety (90) days, DOJ law enforcement components shall modify existing shooting incident review policies as necessary to accord with this general policy.

50. The FAWG was created on September 14, 1994, pursuant to OIAP Resolution 8.