Review of Shooting Incidents in the Department of Justice

E & I Report I-2004-010
September 2004


    U.S. Department of Justice
United States Marshals Service
Office of the Director
Washington. DC 20530-1000

September 7, 2004
Assistant Inspector General for
    Evaluation and Inspections
FROM: Benigno G. Reyna
SUBJECT: Review of Shooting Incidents in the Department of Justice
Assignment Number A-2004-004

Thank you for the opportunity to comment on the draft report for the Review of Shooting Incidents in the Department of Justice. The report and its recommendations are addressed in the Attachment.

Should you have any questions or concerns regarding this response, please contact Isabel Howell, Audit Liaison, at 202-307-9744.


cc: Richard P. Theis
Acting Director
Audit Liaison Office

USMS Response to Draft Audit Report on the
Review of Shooting Incidents in the Department of Justice

General Comments

The following comments refer to the body of the report and do not address any specific recommendations:

Standard for Judging the Use of Deadly Force:

On p. ix the report says:

We also found that the components' Review Boards applied the standard for the reasonable use of deadly force differently. ...The ATF, the DEA, and the FBI Review Boards focused on the moment the LEOs decided to discharge their firearms. In contrast, the USMS Review Board took into account the circumstances that led to the incident. These different approaches can lead to different conclusions about similar sets of facts. For example, the ATF, DEA and FBI approach would find reasonable the actions of an LEO who failed to properly identify a suspect and consequently shot an innocent civilian if at the moment the LEO fired, he or she believed that the civilian was the suspect and was acting in a threatening manner. The USMS approach would find the same actions to be unreasonable because the LEO had not taken steps to properly identify the individual.

(See also p. 39)

The language from the report may imply that the USMS does not focus on the moment that the LEO discharged his or her weapon. The USMS does in fact consider what occurred at the moment that the LEO discharged his or her weapon. In its deliberations, the USMS Shooting Review Board considers the following: At the time the Deputy U.S. Marshal discharged his or her weapon, did the Deputy have a reasonable belief that the Deputy or another person was in imminent danger of death or serious physical injury from the person who was the subject of the deadly force? The answer to this question may depend on what the Deputy did before discharging his or her firearm, and the USMS does take that into account. However, the USMS judges the action based on the instant at which the firearm was discharged.

Incorporation of Shooting Incidents into Training Curricula:

pp. 45-46:

The application of a USMS policy which deals with discussing what goes on during meetings of the Shooting Review Board appears to need clarification. The report indicates that the DEA sent shooting review files to its training academy for operational and training analysis, but the USMS did not incorporate lessons learned from shooting incidents into its training curriculum because it was inhibited by USMS policy. Because the USMS is cognizant of the significant training applications of each shooting, the USMS has a representative from its Training Academy as a member of its Shooting Review Board. This allows that person to return to the Academy and incorporate facts from shooting incidents into the USMS curriculum.

The report states, on p. 46, that the USMS supervisory firearms instructor at FLETC, who is a member of the USMS Shooting Review Board, "was prohibited from discussing shooting incident reviews with anyone not a member of the Review Board." The relevant policy states: "Board members will not disclose what is said at board meetings except as required by law or Department of Justice or USMS policy, or as directed by the Director or Deputy Director." The policy prohibits the disclosure of the Shooting Review Board's discussions; however, the Academy instructor is free to discuss the facts of the shooting incidents with other instructors at the Academy. This is so that lessons learned from these incidents are incorporated into the USMS training curriculum. However, to ensure clarity the USMS will specifically instruct the FLETC representative of his /her role in the training process.

Sharing Information:

p. xii, p. 47:

The report indicates that since DOJ components do not share lessons learned from their shooting incidents, they duplicate efforts. The report indicates that both the USMS and DEA noticed that vehicles were involved in many of their shootings, so they each decided to look into vehicle containment. The report states that if they had "shared information and lessons learned" the DEA could have shared with the USMS the active vehicle containment technique that it developed.

While the USMS agrees that sharing lessons learned is a good idea, the USMS did ask the FBI, DEA, and other law enforcement agencies for information they had developed on containing vehicles. As a result of the USMS request, DEA forwarded a training tape on vehicle containment to the USMS. However, because of the differences in the field investigations, the DEA technique may not always be appropriate for a USMS fugitive investigation.

Actions Taken in Response to the Audit:

The report indicates that some changes were made by the USMS after the audit began. Footnote 8 on p. 6 states, "The USMS created its Office of Inspection during our review." Please note that the USMS, which had an office of Internal Affairs before the audit, completed a reorganization which incorporated authorities of the Office of Internal Affairs into the Office of Inspection. Likewise, the USMS decision to prepare summaries of shooting cases for all operational personnel (p. 45) and the Shooting Review Board's decision to hold meetings every three months (fn. 11, p. xi) were changes in progress.

Responses to Recommendations 5.A. -5.C

Recommendations specific to the USMS are addressed below:

Recommendation 5.A:

Streamline shooting incident reporting system to improve consistency and timeliness in reporting shooting incidents.

Response: (Agree.) Although USMS policy requires a written report within 24 hours, extenuating circumstances at the critical incident scene may not allow managers to send a written report until the next business day. However, Headquarters Communications Center records can verify that every shooting incident was reported via telephone within the appropriate time frame.

Further, decentralization is not a factor in the timeliness of the reporting of shooting incidents, because district offices are making immediate notifications of shooting incidents through the USMS Communications Center.

However, procedural changes have now been implemented that will improve the consistency and timeliness of the documentation of shooting incidents. Specifically, the Chief, USMS Communications Center, will forward copies of all Significant Incident Report Forms involving weapons discharges to the Office of Inspections. (See Attachment 1.) This form contains sufficient initial relevant detail regarding the incident to allow senior managers to make informed judgements regarding the necessity, type, and complexity of subsequent inquiries.

Additionally, the USMS shooting policy reviewed by the OIG Audit Team was being updated during the OIG review to reflect a recent reorganization of the Office of Inspection. These policy changes were initiated prior to the Shooting Review Audit. (See Attachment 2.)

Recommendation 5.B:

Establish a formal reporting relationship with the Civil Rights Division (CRD).

Response: (Agree.) Although USMS has relied on the DOJ/OIG investigations Division (OIG) in the past to report incidents to the CRD, we acknowledge it is our responsibility and will establish a formal reporting relationship with the CRD.

As noted in the OIG report, USMS reports all incidents to the OIG. The OIG assumed responsibility for reporting incidents to the CRD to avoid duplication and retained responsibility for any criminal investigation of USMS employees. The OIG sends USMS written confirmation of its notification to CRD. (See Attachment 3.)

In order to assure full compliance with the Department's CRD authority to review and prosecute complaints of violations of federal civil rights statutes, USMS will assume the responsibility of forwarding all reports of death or bodily injury directly to the CRD, regardless of any official reporting relationship.

Recommendation 5.C:

Consider including outside members on USMS Shooting Review Board.

Response: (Agree.) USMS concurs that there is a need to ensure that DO] Shooting Review Boards are independent and objective and that their decisions and recommendations are free of the control or direction of component management. For that reason, as noted in the OIG report, the USMS Shooting Review Board continues to include representatives from several levels of the organization, i.e., U.S. Marshals, Chief Deputy U.S. Marshals, Supervisors, Deputy U.S. Marshals, Training Academy personnel, Investigative Services Division personnel, and a representative from the Office of General Counsel, each of whom is able to assess the facts objectively.

USMS will consider including outside members on the Shooting Review Board in the future, although the current consensus is that the thorough, factual, and unbiased investigations conducted by local law enforcement agencies provide sufficient objectivity for accurate and objective analysis.