Review of Shooting Incidents in the Department of Justice

E & I Report I-2004-010
September 2004


    U.S. Department of Justice
Federal Bureau of Investigation
Office of the Director
Washington. D. C. 20535
September 27, 2004
Assistant Inspector General
Office of the Inspector General
Evaluation and Inspections Division Department of Justice
FROM: Charles M. Steele Chief of Staff  

The Federal Bureau of Investigation (FBI) has reviewed the Office of Inspector General's (OIG) draft Review of Shooting Incidents in the Department of Justice, Assignment Number A- 2004-004. We appreciate the opportunity to provide comments on the draft report.

Recommendation 1: That the Department establish a working group to consider uniform Department standards for the components' shooting incident reviews. The standards should include requirements regarding:

  1. Content and timeliness of preliminary shooting incident reports and investigations.

  2. Delegation of investigative responsibility, involvement of local authorities in criminal investigations of shooting incidents, and requirements for declination of prosecution.

  3. Composition of the Review Boards, application of the standard for determining the reasonableness of deadly force, and documentation of Review Board decisions.

  4. Aggregation within the Department of shooting incident data and lessons learned, including the preparation and distribution of shooting incident summaries.

The FBI concurs with this recommendation, and looks forward to participating in the working group to be established by DOJ. In fact, the FBI, DEA, USMS and ATF have already initiated discussions regarding the issues and recommendations identified in the draft report, and agree that formation of the working group will facilitate these discussions and will serve inspection interests of each agency beyond those recommended in the draft report.

Recommendation 4A: That the FBI ensure compliance with its Civil Rights Division (CRD) reporting requirements.

The FBI concurs with this recommendation, and will continue its ongoing efforts to ensure compliance with CRD reporting requirements.

Historically the FBI has substantially complied with its CRD reporting requirements. The draft report reflects that fact, but identifies one instance in which there is no documentation indicating that the required notification was made. That incident, which occurred in July 2003, did not result in serious bodily injury or death; that may be the reason for the lack of formal, documented notification. However, a CRD official was part of the FBI's Shooting Incident Review Group (SIRG) in that case, so CRD was aware of the incident. In any event, the FBI will continue to seek to ensure full compliance with its CRD reporting requirements.

Recommendation 4B: That the FBI establish specific criteria for when to delegate shooting incident investigations to the field.

The FBI concurs with this recommendation, and will establish specific criteria, by December 31, 2004, for when to delegate shooting incident investigations to the field.

We would like to note that delegating a shooting incident investigation to the field will not necessarily compromise the independence and legitimacy of the investigation. Every FBI shooting investigation is evaluated independently and objectively by the Inspection Division. Further, appropriate and independent resources are utilized to conduct the investigations, which are ultimately evaluated by CRD and an independent Shooting Incident Review Board at FBIHQ.

In any event, the FBI acknowledges the importance of having clear guidelines in place to which all employees can refer. Therefore, the FBI will establish specific criteria regarding the delegation of shooting incident investigations.

Recommendation 4C: That the FBI consider requesting local criminal investigation of shooting incidents and avoid duplication of local criminal investigations.

The FBI concurs with this recommendation, and will consider, by December 31, 2004, the merits and demerits of requesting local criminal investigations of shooting incidents. We believe we have sound reasons for our current policy and practice of not requesting local criminal investigations (although we do not discourage local investigations, and we cooperate with state and local authorities when they conduct such investigations). However, we will consider this issue again in light of the findings and conclusions of the draft report.

General Comments:

  1. "Cases of Mistaken Identity" and "Cases Involving Fleeing Suspects," pages 39-40:

    The draft report uses two pairs of shooting incidents -one pair involving "cases of mistaken identity" and another involving "cases of fleeing suspects" -to illustrate and support its conclusion that DOJ components apply differently the standard for determining the reasonableness of particular uses of deadly force. The FBI believes the examples are not necessary to illustrate the conclusion, and more importantly, that they include such limited facts that they do not support the conclusion. It is inherently difficult to compare shooting incidents due to the unique circumstances of each incident, and the examples do not provide sufficient facts and analysis from which to draw sound conclusions. Moreover, even though OIG included the examples only to illustrate its point about perceived application of different standards, some (or many) readers will likely infer that OIG has drawn conclusions about the reasonableness of the shootings in one or more of the examples. The examples could therefore mislead readers about the appropriateness of the decisions of the components' review groups.

    Moreover, the FBI "mistaken identity" example mentions only the general fact that the SIRG determined that the Special Agent's use of deadly force was reasonable. The SIRG in that case, however, included a representative of the OIG, who agreed with the SIRG's decision. Readers should be informed of that fact, and also that the case was independently investigated by both the FBI and a local police department; that the results of both were utilized by a local prosecutor and a local grand jury; that the results of both investigations were presented to CRD; and that all concluded, prior to the evaluation of the FBI SIRG, that the use of deadly force was reasonable. In addition, the FBI "mistaken identity" case is currently the subject of pending civil litigation. Although the draft report does not expressly identify the matter, the example includes enough identifying facts that the plaintiff's lawyer will certainly recognize it. Inclusion of the example in the report will likely complicate the litigation -for example, plaintiff's counsel may seek to take discovery from OIG and OIG personnel, introduce the report into evidence, etc.

    The "fleeing suspects" examples are also problematic. Even on the limited facts presented in the draft report, the circumstances of the two incidents are clearly and materially different. In the USMS example, deadly force was used against a felon fleeing from law enforcement in a vehicle after an unsuccessful arrest attempt. However, in the DEA example, deadly force was used against a felon fleeing from law enforcement after shots were fired in the general direction of DEA Special Agents. Without opining about the reasonableness of either shooting, the fact that shots were fired toward law enforcement personnel in one case is clearly a significant distinguishing factor in determining whether the use of deadly force was reasonable. The examples are not comparable, and therefore should not be compared, as they are in the draft.

    For all these reasons, we request that the OIG delete the examples from its report.

  2. Compelled Statements, page vii:

    The draft report identified inconsistencies in the components' practices of compelling administrative statements in shooting investigations. It noted what it believed to be four FBI shooting incidents in which investigators compelled administrative statements (without, declination of prosecutions) from Special Agents for use in criminal cases against the suspects involved in the shooting incidents.

    The FBI incidents identified in the report are actually one incident in which four different Agents discharged their weapons. The Division where the shooting occurred formally requested authorization from FBI Headquarters, Office of the General Counsel and Inspection Division, to compel statements from the Agents involved in the shooting, citing benefits to both the Agents and the Bureau. Further, the United States Attorney's Office had not filed charges against the subjects because of a lack of evidence concerning the shooting (i.e. the USAO needed the Agents' statements in order to support charges against the subjects). The Agents involved, accompanied by a representative of the Division's Chief Division Counsel, provided a brief statement immediately following the shooting in the interest of public safety. The Division requested authorization to compel statements on June 17, 2003, and authorization was received on June 18, 2003. Statements were provided by the Agents on July 24,2003, 53 days following the shooting incident.

    Finally, the subject was not struck by any discharged rounds, nor were there any injuries to innocent civilians, or significant damage to property.

  3. Reporting to the OIG. pages iv-v:

    The draft states that the FBI reported only seven of 17 "reportable" shooting incidents to the DIG prior to July 2004. This raises a possible inference that the FBI failed to comply with its reporting obligations; such an inference, however, would be inaccurate.

    Prior to July 2004, the agreement between the FBI and the DIG was that only incidents involving serious misconduct would be reported to the OIG. However, in the ten unreported shooting incidents referenced in the draft report, the SIRGs and the Shooting Incident Review Teams did not find any serious misconduct. Therefore, the FBI was not required to report any of those incidents to the OIG, and the FBI was in compliance with its OIG reporting requirements.

    Since the change in reporting requirements in July 2004, the FBI has notified the OIG of every shooting incident.

    The FBI requests that the draft report be amended to include these facts.

  4. Review of Shooting Incidents, page xi:

    The draft report states that the FBI's Review Board tries to meet on a quarterly basis, but is not required to do so. In fact, the FBI's Shooting Incident Review Group is scheduled to meet monthly (if there are shooting incidents to review).