Review of Shooting Incidents in the Department of Justice
E & I Report I-2004-010
Reporting to Supervisors, Component Headquarters, the CRD, and the OIG.
Reports of shooting incidents to supervisors. Every component requires LEOs to report all firearm discharges (other than for training or recreation) to their supervisors immediately after they occur because an immediate report by the LEO is essential to begin the investigative process. In the 103 incidents we reviewed, the LEOs immediately reported 100 of the shooting incidents. However, in three cases, LEOs failed to report shooting incidents as required. In those three incidents:
Two of these three incidents were not investigated fully because a shooting incident investigation was no longer practicable when the shooting incident was discovered. According to the DEA Chief of Inspections, failure to report the incidents immediately constituted misconduct. Therefore, the Office of Inspections transferred these two investigations to the DEA's OPR. The OPR conducted misconduct investigations and imposed discipline.
Field office reporting of shooting incidents to headquarters. The components require timely written reports so that senior managers can oversee the investigative process. Following the immediate reporting of a shooting incident by an LEO, each component requires the LEO's supervisor to submit an initial written report on the shooting incident to headquarters within one day.31 Of the 103 incidents we reviewed, we were able to analyze 97 for timeliness. We did not consider in our analysis the above three incidents that were not reported as required and an additional three from the FBI because a SAC may classify a shooting incident as unintentional and, if no one is injured or killed, an immediate report is not required.32 We reviewed the files of the remaining 97 incidents for copies of the written report to headquarters. Of the 97 incident files, 11 did not contain the required written report, and in 1 file the report was undated. Although these 12 files contained evidence of telephone calls and e-mails informing headquarters of the shooting incidents, these informal communications did not include all the information that the components require in the formal written report (Figure 7).
Figure 7: Missing or Undated Written Shooting
Incident Reports, FY 2000 - FY 2003
|Source: OIG analysis of components' shooting incident files.|
For the 85 incident files that contained dated initial written reports, we examined how long the supervisors took to submit the reports to headquarters. Of the 85 incidents, a formal written report was submitted within one day in 54 of the incidents (64 percent). On average, the ATF and the FBI met the 1-day reporting requirement, while DEA and USMS supervisors took two to three days on average to submit the reports (Figure 8).
Figure 8: Average Number of Days to Submit Initial Written
Report to Headquarters, FY 2000 - FY 2003
|Source: OIG analysis of components' shooting incident files.
Note: Reporting time is measured in complete days following the day of the incident. Reports submitted on the day of the incident were counted as zero days to report, reports submitted on the following day were counted as one day to report, etc.
We discussed the reporting delays with each of the components. The USMS staff stated that the USMS organizational structure was one factor that delayed the reporting process, because the USMS has 94 decentralized district offices, each of which rarely has a shooting incident. The DEA policies, provided by the DEA shooting incident investigators, require at least three reports following a shooting incident:
Overall, we identified an initial written report in 85 of the 97 incidents. We found no dated, initial written report in 12 cases, and in 31 of the 85 incidents the initial reports did not meet the 1-day deadline. As a result, in 43 of 97 cases (44 percent) we could not validate that senior managers received the written information in time to use it for oversight of the investigation.
Reporting shooting incidents to the CRD. The Department's CRD has the authority to review and prosecute complaints of violations of federal civil rights statutes, including complaints related to the shooting incidents we reviewed. In 2000, the CRD established written agreements with the DEA and the FBI that require them to report to the CRD shooting incidents resulting in injury or death.33 The CRD does not have similar written agreements with the ATF or the USMS.
We examined the DEA's and the FBI's compliance with the agreed upon reporting requirements. Since the FBI's agreement went into effect, 15 FBI shooting incidents have resulted in injury or death. The FBI reported 14 of these 15 shooting incidents to the CRD. The FBI could not explain why one of its cases was not reported. Since the DEA's agreement went into effect, 11 DEA shooting incidents resulted in injury or death. The DEA reported 8 of these 11 shooting incidents to the CRD. The DEA did not report three incidents to the CRD. Under the DEA's procedures, its OPR is responsible for reporting potential civil rights violations to the CRD. However, DEA's shooting incident investigators do not forward to the OPR those cases that they determine do not involve misconduct. The investigators never forwarded the three incidents to the OPR because, though they involved injury or death, the investigators did not identify any potential misconduct. Under the procedures in effect at the time, the OPR did not receive separate notice of shooting incidents.
The ATF and the USMS have no written agreements with the CRD to report shooting incidents. However, the USMS Chief Inspector told us that the USMS would report any shooting incidents involving a potential violation of civil rights. Also, the ATF Special Agent in Charge, Investigations Division, Office of Inspection, told us that the ATF would report any shooting incident involving the allegation or suggestion of a civil rights violation to the appropriate United States Attorney's Office. We found no evidence (e.g., declinations of prosecution, memoranda, telephone records, e mail) in the ATF and USMS incident files of any reports provided to the CRD. We also found that the CRD considered two USMS cases we reviewed, but not because they were reported by the USMS. In one USMS shooting incident, the CRD received an allegation of a civil rights violation from the suspect's family, and in another, a United States Attorney consulted with the CRD before deciding not to prosecute the Deputy Marshal. The ATF case files contained no evidence that any of the 23 ATF cases resulted in a civil rights complaint against an ATF Special Agent.
In addition to the inconsistency among the components in reporting to the CRD, we found that the DEA's and the FBI's agreements with the CRD do not ensure that all incidents with the potential to result in civil rights complaints were reported to the CRD. As noted, the DEA and the FBI agreed to report to the CRD all shooting incidents that resulted in injury or death. However, incidents without injury or death that are not reported to the CRD may still result in allegations of civil rights violations. In one incident we reviewed, a suspect, who was not injured, made a civil rights complaint after local authorities arrested him. The suspect alleged that an FBI Special Agent unnecessarily shot at him as he eluded arrest by the FBI Special Agent. As this case illustrates, firearm discharges that do not cause injury or death may result in complaints of civil rights violations by LEOs that the CRD should review.
Reporting shooting incidents to the OIG. Attorney General Order 2492-2001 (Order 2492) requires components to report to the OIG "evidence and non-frivolous allegations of criminal wrongdoing and serious administrative misconduct by Department employees" so that the OIG may decide whether to exercise its statutory authority to investigate the matter or to delegate the investigation to the component. All shooting incidents have the potential to involve criminal wrongdoing or serious administrative misconduct. Of the 103 incidents we reviewed, 46 were not reportable to the OIG because they occurred before this OIG had the authority to investigate misconduct involving FBI and DEA employees. 34
Of the incidents we reviewed, 57 were reportable to the OIG. We found documentation in the files that the components submitted formal reports in 35 of the 57 reportable incidents (61 percent). The USMS and the ATF reported every incident, but we found no documentation for more than half of the DEA and FBI incidents (Figure 9).
Figure 9: Shooting Incidents Reported to the OIG
|Source: OIG analysis of components' shooting incident data.|
The average time that each component took to formally report shooting incidents to the OIG ranged from 7 to 205 days. The ATF, the DEA, and the USMS reported most shooting incidents to the OIG within a few days, but the FBI did not formally report its incidents to the OIG until after the report of the administrative investigation of the shooting incident was submitted to the FBI Review Board (Figure 10).35
Figure 10: Average Time to Report Shooting Incidents to the OIG
|Source: OIG analysis components' shooting incident files and IDMS data.|
The USMS reported all shooting incidents as required, and after reviewing the reports, the OIG delegated all of the investigations back to the USMS. Although the ATF, the DEA, and the FBI did not consistently provide timely written reports, the OIG ASACs who are the primary liaisons to each component's internal affairs unit told us that they visit those components' headquarters regularly and review the components' internal shooting incident reports. The ASACs said that they base their decisions to delegate shooting incident investigations on their review of these reports, as well as other interactions with component staff, and annotate the components' files to indicate the OIG decision.
We also found that the components had different interpretations of what constituted a shooting incident reportable to the OIG. The ATF and the USMS reported all shooting incidents to the OIG. In contrast, when the FBI and the DEA determined initially that a shooting incident was unintentional, they did not report it to the OIG. This practice can lead to failing to report an incident that should be reported. In one case we reviewed, which occurred prior to the OIG obtaining jurisdiction to investigate FBI and DEA employees, a DEA Special Agent at the shooting scene stated that he unintentionally discharged his weapon. This case would not have been reported to the OIG under current DEA procedures. However, in a later statement to the local authorities, the Special Agent gave a different version of events and stated that he intentionally discharged his firearm because he feared for his life. Intentional discharges of this kind are now reportable under DEA procedures. Overall, we found that the components did not report to the OIG 22 of the 57 reportable shooting incidents. Moreover, the FBI did not formally report any of its shooting incidents to the OIG until after the FBI completed its investigation.
All firearms discharges, except those in connection with training or off duty sports and hobbies, must be reported to the OIG. To ensure that shooting incidents are properly reported to the OIG, on July 27, 2004, the Assistant Inspector General of the Investigations Division sent a memorandum to the ATF, the DEA, and the FBI reiterating the existing reporting requirements in order to eliminate any confusion over the requirement to report firearms discharges.
The Components' Shooting Investigations
Resolution 13 does not specify how shooting investigations should be conducted, but requires that all investigations be objective, thorough, and timely. Specifically, Resolution 13 states that investigations must:
Resolution 13 also requires that an investigation be "appropriate for the type of incident involved," but authorizes the components to decide who will conduct the investigation:
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.
The components call the decision to have a field office conduct the investigation "delegating the investigation."
Delegation of the shooting incident investigation. The criteria for delegating shooting incident investigations vary by component. We found that the ATF has the strictest limitation on delegating shooting incidents. It requires that all intentional and unintentional firearms discharges by ATF employees be investigated by inspectors from the Office of Inspections. In all 23 ATF cases in our review, ATF headquarters dispatched an Office of Inspections team to conduct the shooting incident investigation.
The DEA generally delegated shooting incidents that did not result in "significant or life threatening injuries, deaths, or other significant liabilities" to the SAC of the DEA field office to which the Special Agent was assigned. We found that the DEA delegated 22 (59 percent) of its 37 shooting cases to the SAC for investigation. Of these 22 cases, 7 resulted in injury or death and 15 did not (9 were intentional discharges and 6 were unintentional discharges during enforcement operations).
According to the FBI Manual of Investigative Operations and Guidelines, the decision to delegate an investigation is not based on the seriousness of the incident but rather "on the extent of the SAC or ASAC participation in the planning and operational events of the incident." Of the 39 FBI cases we reviewed, 16 (41 percent) were delegated to the SAC. In two cases (5 percent), a team was dispatched from headquarters to investigate, and in 21 cases (54 percent), headquarters assigned an IIP to oversee the investigation. The FBI policy distinguishes investigations overseen by an IIP from investigations delegated to the SAC; however, in 6 of the 21 investigations we reviewed, we found that the IIPs directed to investigate were assigned to the same field offices as the Special Agents involved in the shooting incident.
The USMS Office of Internal Affairs (OIA) forms a team to conduct the investigation of each shooting incident involving a Deputy Marshal. USMS case files did not record whether investigators were dispatched from headquarters, assigned from another district, or assigned from within the local district office, but every investigator reported directly to the USMS OIA.
Criminal investigations of shooting incidents. In reviewing 124 individual cases arising from 103 shooting incidents, we found that local law enforcement agencies conducted the criminal investigations of most ATF, DEA, and USMS shooting incidents, while the FBI conducted the criminal investigations of all of its shooting incidents (Table 3).
|Table 3: Criminal Investigations of ATF, DEA, FBI, and USMS
Shooting Cases by Federal and Local Law Enforcement
|Source: OIG analysis of components' shooting cases.|
The ATF, the DEA, and the USMS told us that they always requested that state or local law enforcement agencies conduct the criminal investigations and that they only conducted a criminal investigation themselves if the state and local agencies declined the request. That was reflected in our review of the case files. We found that state and local agencies conducted the criminal investigations in 62 of the 85 shooting cases involving LEOs of the ATF, the DEA, and the USMS. The components conducted the criminal investigations in the remaining 23 cases after local law enforcement declined to investigate.36
The ATF, the DEA, and the USMS shooting incident investigators gave several reasons for having state or local agencies conduct the criminal investigations. First, because state and local agencies have no vested interest in the outcome of an investigation, having them conduct the criminal investigation of the LEOs' actions avoids any appearance of a conflict of interest. The ATF, DEA, and USMS investigators also told us that, in their opinion, local authorities are better able to secure the scene, preserve physical evidence, and interview witnesses. One ATF Shooting Incident Investigator noted that local law enforcement authorities routinely investigate firearms discharges in their jurisdictions. Local authorities are also better able to address any investigative issues that arise away from the scene of the incident or after the initial shooting response ends. This was demonstrated in two of the cases we reviewed.
The states have the primary authority and responsibility to investigate and prosecute assaults, homicides, or other felonies occurring in their jurisdictions and, in fact, investigated the vast majority of firearms discharges, including most of the 9,369 homicides committed with a firearm in 2002.37 Allowing local authorities to carry out their duties may eliminate the need for an extensive federal investigation. Relying on local authorities to conduct criminal investigations also reduces the possibility that separate local and criminal investigations will lead to conflicting conclusions.
In contrast to the ATF, the DEA, and the USMS, the FBI always conducted a criminal investigation on any shooting incident involving its Special Agents. The FBI conducted criminal investigations on all 39 cases we reviewed. However, we found that state or local agencies also conducted an investigation in 12 of those 39 cases.38
We asked the Deputy Assistant Director why the FBI conducted a federal criminal investigation in every case, even if it duplicated a local criminal investigation. He told us that for cases involving injury or death, the FBI's reporting agreement with the CRD requires that the FBI investigate any potential violation of civil rights.39 He said that policy has been extended, by practice, to every shooting incident. He also told us that the FBI would not discourage any local investigation and would cooperate with state or local investigators if they conducted an investigation, but that they would not request an investigation by a local law enforcement agency because the FBI had the resources to conduct investigations in all cases.
The DEA has a similar requirement in its reporting agreement with the CRD but takes a different approach to the criminal investigation of shooting incidents. The DEA meets its requirement by asking local law enforcement authorities to investigate the shooting and submitting the local criminal investigations to the CRD.
We discussed with CRD attorneys the fact that the DEA and the FBI have similar agreements with the CRD but have different approaches to conducting criminal investigations into shooting incidents. The CRD attorneys said that they used the local criminal investigations of the DEA shooting incidents to determine whether a civil rights violation had occurred. The CRD attorneys also said that local authorities questioned the objectivity of the FBI's criminal investigations of shooting incidents involving its Special Agents in at least one case. In that case, FBI headquarters admonished the FBI SAC for turning over the scene of an FBI shooting incident to local and state criminal investigators who insisted on conducting a criminal investigation of the incident.
The rights of the LEOs involved in shooting incidents. Both Resolution 13 and the components' policies direct that the investigation balance the importance of conducting an objective, thorough, and timely criminal investigation with protecting the rights of the LEOs for whom shooting incidents are traumatic events. LEOs may exercise their constitutional right to remain silent during the criminal investigation or can make voluntary statements, with the advice of an attorney if they choose. In 101 of the 124 shooting cases we reviewed, the LEOs who fired their weapons made voluntary statements, and in 30 of the 101 cases, an attorney representing the LEO was present during the statement to advise the LEO (Table 4).
|Table 4: Voluntary Statements With Attorneys Present|
|Component||Cases||Cases With Voluntary Statements||Attorney Present at Voluntary Statement||Percentage|
|Source: OIG analysis of components' shooting cases.
* Three additional FBI Special Agents were represented by counsel, but their attorneys were not present when the voluntary statements were given.
Declinations of prosecution. After the criminal investigation is complete, each component requires investigators to obtain a declination of prosecution from state or federal prosecutors or otherwise ensure that there is no criminal action pending before completing the administrative investigation of a shooting incident. Because both state and federal declinations of prosecution are recorded in the case files, we were able to evaluate their use by the components. When they sought a declination, we noted that only the FBI followed the practice of obtaining declinations from both federal and state prosecutors (Table 5).
|Table 5: Declinations of Prosecution Obtained by Components|
|Component||Cases||Federal Declinations||State Declinations||Federal and State Declinations|
|Source: OIG analysis of components' shooting cases.|
We also examined components' compliance with their individual policies regarding obtaining declinations of prosecution. The DEA and the FBI reported to us that they do not routinely obtain declinations of prosecution in cases that do not involve injury or death. However, we found that the DEA and the FBI did not obtain a declination of prosecution in one case involving death or injury each. The ATF and USMS are required by their policies to obtain a declination of prosecution in every case. Yet, the ATF did not obtain a declination of prosecution in 4 cases and the USMS did not obtain a declination of prosecution in 17 cases (Table 6).
|Table 6: Cases in Which No Declination of Prosecution Was Obtained|
|Component||Cases||No Declination||Death or Injury||No Death or Injury|
|Source: OIG analysis of components' shooting cases.|
The ATF investigators acknowledged that they had not obtained the required declinations in four cases due to an administrative oversight; these four ATF cases involved shooting incidents in which the suspect was neither injured nor killed. The DEA investigators said that a declination of prosecution was not obtained in one case because it involved a minor wound to a suspect who eluded arrest. The FBI could not explain why one of its cases was not reported to the CRD for the required declination of prosecution. The USMS told us that its policy of obtaining declinations of prosecution in every case "needed to be more actively enforced."
Compelled statements in the administrative investigation. As noted above, during criminal investigations, LEOs have a constitutional right under the Fifth Amendment to remain silent. But once the criminal investigation is complete, the government can compel LEOs to provide statements for the administrative investigation and can discipline them if they refuse to comply. If a government agency compels an employee to provide a statement, it may use information in that statement to take administrative action against the employee, but it may not use the information against the individual in a criminal prosecution.40 In the 124 cases we reviewed, the components compelled 30 administrative statements (Table 7).
|Table 7: Statements by LEOs Involved in Shooting Incidents|
|Component||Cases||Voluntary Statement||Compelled Statement||Both Voluntary |
and Compelled Statements
|Source: OIG analysis of components' shooting cases.
* One FBI Special Agent retired before the administrative investigation was completed.
We discussed the practice of compelling statements with investigators from each of the components. The ATF and DEA shooting incident investigators we interviewed said that it is their components' policy not to compel statements unless they are needed to complete the administrative investigation. The ATF shooting investigator said this was the ATF's reason for compelling statements in two ATF cases. The FBI Deputy Assistant Director we interviewed confirmed that it is FBI practice to compel an administrative statement in all administrative cases unless the LEO has already made a voluntary statement in the criminal one. The FBI Deputy Assistant Director also stated that the administrative warnings and criminal immunity associated with compelled administrative statements were necessary to protect the rights of the LEOs. The Deputy Marshal now responsible for investigating shooting incidents told us that, in the past, the USMS's practice was to compel an administrative statement in every case, but that the USMS discontinued the practice. Currently, USMS policy authorizes compelled administrative statements only when necessary to complete the administrative investigation.
Our review of the case files also found that the components followed substantially different practices for compelling administrative statements in similar situations. In four FBI shooting cases, investigators compelled administrative statements (without declinations of prosecution) from the Special Agents involved in shooting incidents for use in the criminal cases against the suspects involved in the shooting incidents. In similar DEA shooting incidents, the DEA did not compel the Special Agents involved to provide administrative statements to support the prosecution of the suspects. Instead, the DEA consulted with the Assistant United States Attorney, and the DEA Special Agents testified before the federal grand jury considering the charges against the suspects.
In the DEA and FBI cases, the suspects were charged under 18 U.S.C. § 115 with assaulting the Special Agents. Although the assaults may be related to shooting incidents, both the FBI and the DEA policies require that the charges of assaulting the LEOs must be investigated separately, not as a part of the shooting incident administrative investigation. The four FBI case files included no explanation for the shooting incident investigators' decision not to conduct a separate criminal investigation and to rely instead on compelled administrative statements.
Timeliness of shooting incident investigations. All of the components have established timeliness standards for their shooting incident investigations. We found that all components began their administrative investigations while the criminal investigations were in progress, and all components required that the criminal investigations be completed before the administrative investigations were closed. The FBI requires that an administrative investigation be completed within two weeks of the incident, and the ATF, the DEA, and the USMS require completion within 30 days. All of the components allow for extensions of the time required to complete the administrative investigation.
During our review, we found that the components documented the "completion" of administrative investigations differently. The ATF, the DEA, and the USMS Inspections Divisions prepared formal memoranda to document the completion of the administrative investigation and to forward the case to the Review Board. We used the dates of those memoranda as the dates that the investigations were completed. The FBI completed a Form FD-263, Report of Administrative Investigation, but did not submit the administrative investigation to the FBI Review Board at that time. We found no documentation in the FBI's files as to when the administrative investigations were actually submitted to the FBI Review Board. The case files we reviewed did not contain sufficient documentation for us to determine when, or for what reasons, extensions were granted.
We determined that the completion dates recorded on the FBI's Reports of Administrative Investigation could not have been the actual dates that the FBI completed the administrative investigations. On the date these forms were completed, most criminal investigations had not been completed and the CRD declinations of prosecution had not been obtained, both of which are required before an administrative investigation can be closed. We examined the time taken by the FBI to obtain declinations of prosecution from the CRD and found that it took the FBI an average of 117 days to obtain the declinations required to close the criminal investigations. Therefore, the completion dates recorded on the FBI's Reports of Administrative Investigation appeared to represent only the completion of the on-site investigations.
We compared the time required by all the components to obtain declinations of prosecution to the time required to complete an administrative investigation (Figure 11).
Figure 11: Comparison of Average Time to Obtain
Declination of Prosecution to Average Time to Complete
and Submit Administrative Investigation
|Source: OIG analysis of components' shooting incident data.
Note: The chart shows the time required by the ATF, the DEA, and the USMS to obtain either a local or federal declination of prosecution and the time required by the FBI to obtain a declination of prosecution from the CRD.
As Figure 11 shows, the ATF, the DEA, and the USMS took longer to close their investigations than they took to obtain declinations of prosecution, which was the expected result. However, the FBI records indicated that the FBI completed a Form FD-263, Report of Administrative Investigation, in far less time than it took to obtain declinations of prosecution. Specifically, it took the FBI an average of 117 days to obtain the declination of prosecution required to close a criminal investigation, but only 25 days, on average, to record the administrative investigation as complete. Because our review of the FBI's case files found no other documentation that recorded the completion of the overall investigation, we used the FBI's average time to obtain declinations of prosecution as the average time in which FBI administrative investigations were completed and ready for Review Board consideration.
Overall, we found that all of the components exceeded their established time frames for completing administrative investigations. We recognize that the amount of time taken to complete any particular investigation may have been reasonable based on the complexity of the incident, pending criminal charges, or other factors outside the control of the components. However, the files we reviewed generally did not contain sufficient documentation to enable us to conduct a detailed analysis of these factors. Moreover, for the FBI's cases, the files did not contain sufficient documentation to enable us to accurately determine when the administrative investigations were actually completed and ready for review.
The Components' Review Boards
Resolution 13 requires the Review Boards to "determine the reasonableness of the application of deadly force in accordance with the Department's Deadly Force Policy and the law" based on the shooting investigation and to provide senior management with analyses, observations, and recommendations concerning operational training and discipline. Resolution 13 also requires that Review Boards be independent and objective, and their decisions and recommendations free of the control or direction of component management.
Although each of the components had established a Review Board to consider shooting incident investigations, we found significant differences among the Boards, including the composition of the Boards, the length of time the Boards took to complete the review process, the decisions made and the process used to reach them, the extent to which decisions were documented, and whether and how the Boards referred cases for discipline.
The composition of Review Boards. Resolution 13 requires that "the investigation and review process must be overseen to ensure that ... potential conflicts of interest are avoided, including even the appearance of conflict of interest or impropriety." The composition of the components' Review Boards varied significantly, including differences in the number of Board members, the grade level and position of the members, and whether members from outside the component were included.41 Specifically:
In examining the composition of the components' Review Boards, we were told by Board members that including outside members could improve the independence and objectivity of Review Boards. Two former ATF Review Board members, one from the Department of the Treasury and one from the Department of Justice, believed that including representatives from peer organizations helped ensure the independence and objectivity of the Boards in which they participated.
We also concluded that the composition of the DEA's Review Board might not be consistent with the Resolution 13 requirement for an independent review. The DEA's Review Board is composed of three of the highest-ranking individuals in the agency's management structure. Their only supervisors are the DEA Administrator and Deputy Administrator. Because the members of the Review Board are at the highest levels of DEA management, their decisions are not only subject to the control or direction of component management, but may, in fact, be the decisions of the component's management. Although the DEA Administrator and Deputy Administrator can provide some independent oversight, limiting Review Board membership only to individuals who bear significant responsibility for the operations being reviewed can create an inherent conflict with the need for the Board to independently examine and potentially criticize those operations. In response to our observation, DEA Review Board members asserted that the more extensive training and experience of their Review Board outweighed any theoretical reduction in the Review Board's independence.
Timeliness of reviews by Review Boards. Resolution 13 states that prompt reporting, investigation, and review of shooting incidents are important, although it does not establish time standards for Review Boards' consideration of cases. To evaluate the timeliness of reviews, we examined the average time it took for each component's Board to meet after the completion of the investigation. The average time for Boards to meet to consider completed investigations ranged from 39 days at the ATF to 226 days at the DEA (Figure 12).
Figure 12: Average Number of Days to Convene
the Review Board After Completing the
|Source: OIG analysis of components' shooting incident data.|
In examining the reasons for the differences in the time that the components' Review Boards took to convene after investigations were completed, we found that the ATF required its Review Board to meet within a specified time (60 days after the completion of a shooting incident investigation). The other components did not require their Boards to meet within a specified time. During our review, the USMS Board decided to begin meeting on a quarterly basis beginning on March 1, 2004.43 DEA Inspections Division staff told us that the lengthy delays in convening the DEA Review Board were due to difficulties in coordinating the full schedules of its three high-ranking members.
Lengthy review delays had two negative effects. First, recommendations to senior management regarding operational, training, and safety issues were delayed, which hindered management's ability to make prompt corrections. Second, lengthy delays increased the time that employees remained under investigation. For example, the USMS Chief Inspector told us that the delays had a negative effect on the careers of Deputy Marshals involved in shooting incidents, even those ultimately cleared of any misconduct, because their promotions and transfers were delayed until the reviews were complete.
During our examination of Review Board actions, we also found one DEA incident that was never considered by the DEA Review Board. During a multijurisdictional operation, two LEOs (a DEA Special Agent and a local detective) fatally shot two suspects because, according to the LEOs, they believed that the suspects were accelerating toward them in a car. However, evidence from the scene conflicted with the LEOs' account. The car was in reverse, had backed up against another vehicle, and could not have been accelerating toward the LEOs. The DEA OPR and the CRD investigated this case extensively, and the DEA Administrator directed a special review of the tactics used in this and similar cases. The DEA OPR investigation cleared the DEA Special Agent of misconduct, but the case was never forwarded to the DEA Review Board for consideration as a shooting incident.
Components' Review Boards apply the standard for the reasonable use of deadly force differently. Resolution 13 requires components' Review Boards to determine whether the application of deadly force was reasonable.44 Of the 121 shooting incidents that were considered by Review Boards, 14 were determined to be unreasonable uses of force (Table 8).45 Of those 14 determinations, 11 were made in cases in which the discharge was unintentional. In only three cases, all relating to USMS Deputy Marshals, did a Review Board find that an intentional discharge was unreasonable.
|Table 8: Review Board Decisions|
|Source: OIG analysis of components' shooting incidents.|
We found that when considering whether the actions of LEOs were reasonable, 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 total circumstances preceding the incident. These different approaches can lead to different conclusions about similar sets of facts. For example, the ATF, the DEA, and the 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 way that the LEO believed was threatening. The USMS's approach could find the same actions to be "unreasonable" because the LEO had not taken steps to properly identify the individual. Although no incidents are exactly alike, several incidents we reviewed demonstrated that the components were applying the standard for the use of deadly force differently. In each incident, although we found no evidence that the findings we reviewed were inconsistent with the review procedure established by each component, the Review Boards reached different conclusions on the reasonableness of LEOs' actions. For example:
Incidents Involving Fleeing Suspects
Incidents of Mistaken Identity
Documentation of findings and recommendations. Resolution 13 requires Review Boards to provide component management with their "analyses, observations, and recommendations concerning operational, training, and other relevant issues." All of the Review Boards prepared memoranda for senior management summarizing their findings on each case. In almost all of the cases that we reviewed, the memoranda prepared by the FBI and the USMS Review Boards were thorough and provided useful recommendations. For instance:
In contrast, the ATF Review Board's memoranda provided a written summary of the shooting incident and Review Board discussion, but almost no analysis of the incident and few training recommendations for senior management. Two of the 13 ATF Review Board memoranda included recommendations for training improvements.46
The DEA Review Board memoranda contained standard language describing their findings that the facts and circumstances were accurately and completely reported in the investigation, that the employee was acting within the scope of employment and authority, that the action taken by the employee was in compliance with component policies and procedures, that there was no evidence of employee misconduct or malfeasance, that the use of force was justified, and that the use of force did or did not violate the law. The DEA required Board members to complete and sign a two-page worksheet indicating that their case review covered all the above factors. We found that 32 of 37 memoranda consisted only of the standard language contained in the worksheet and a brief summary of the incident.
Referral of cases for discipline. Resolution 13 requires Review Boards to make "appropriate, timely recommendations to senior management … including, if necessary, referral to appropriate entities for disciplinary review." The ATF Review Board did not refer any of the cases that we reviewed for discipline because it did not find any shooting cases unreasonable. The DEA Board referred eight cases, the FBI Board referred four cases, and the USMS referred three cases (Table 9).
|Table 9: Review Board Discipline Referrals|
|Component||Reason for Review Board Referral|
|Source: OIG analysis of components' shooting incidents.|
The referral for discipline was not always clearly stated in the memorandum of the Review Board's finding. For example, a Deputy Marshal fired one round at a suspect's car to disable it and, when this failed, fired again at the driver. The Review Board found that the round intended to disable the vehicle was unauthorized, but that the rounds fired at the driver were authorized. The Chairman of the Board summarized these findings in a memorandum to the Deputy Director dated June 18, 2003. In a letter dated August 12, 2003, the Chairman of the Board informed the Deputy Marshal that the Review Board recommended that he "review the USMS shooting policy … and undergo 16 hours of remedial [firearms] training." It was unclear from the files we reviewed whether the case was referred for discipline, and the Deputy Marshal's personnel record did not contain any disciplinary action.
When a case is referred for discipline, the components follow their disciplinary adjudication processes. For the 15 cases in which the Review Boards made a referral for discipline, the components took the following actions:
We also found that the process by which cases were referred for discipline affected the actual discipline imposed by the components. For example, because of its policy of recommending a minimum 3-day suspension for all unintentional discharges, the FBI Review Board recommended a 3-day suspension (increased to a 5-day suspension by the deciding official) for a Special Agent who unintentionally discharged one round into a dying suspect. The other components' Review Boards are not required to recommend a minimum disciplinary action. Consequently, in a similar case in which a DEA Special Agent unintentionally discharged her firearm into a suspect and another DEA Special Agent, wounding both, the Review Board referred the shooting incident to the Board of Professional Conduct without a specific recommendation and the Special Agent received a Letter of Caution.
Overall timeliness. Under Resolution 13, Review Boards are supposed to provide a check and balance on the reporting and investigative process and ensure that the process is completed expeditiously. We reviewed the files on 100 incidents to determine how long the shooting review process took. We used the date of the shooting incident as the start date and the date that a signed letter was sent to the subject LEO with the Review Board's decision as the date the review was closed. We found that the ATF and the FBI took the least amount of time on average to complete their reviews, while the DEA took the longest (Figure 13).
Figure 13: Average Number of Days to Close Shooting Review Process
|Source: OIG analysis of components' shooting incidents.|
Conclusion. We concluded that the components' differences in implementation of the Review Board process could lead to inconsistent determinations and different disciplinary actions for similar shooting incidents. That outcome undermines Resolution 13's objective of "appropriate, consistent operational guidelines for the criminal investigative agencies of the Department." Although the weaknesses we identified need to be corrected to ensure the effectiveness of the Review Board process, each component's system had strengths that the other Review Boards could consider as benchmarks for improvement and that the Department could use to improve the shooting review process overall.
The most significant strength we noted was the inclusion of LEOs from other components as members of the Review Boards. Including representatives from peer organizations broadens the knowledge and experience applied to any shooting incident review and can help to ensure the independence and objectivity of the Review Boards.
The most significant weakness we noted was the components' failure to uniformly apply the standard for determining the reasonableness of the use of deadly force. The ATF, the DEA, and the FBI looked at the "reasonableness" of the LEO's belief that the suspect posed an imminent threat at the moment deadly force was used. The USMS Review Board considered the reasonableness of the Deputy Marshal's actions as a whole, including the actions that created the necessity for deadly force. A main purpose for reviewing shooting incidents is to ensure that LEOs use deadly force only when necessary to protect themselves and the public. Based on Resolution 13, we believe that Review Boards should uniformly apply the Departmentwide standard to determine the reasonableness of the use of deadly force.
We also concluded that uniform requirements are needed to ensure that Review Boards meet regularly to consider shooting incident investigations promptly, that they fully document their decisions, and that they provide the expected recommendations for improving training and operational procedures.
Sharing of Lessons Learned
Resolution 13 requires that "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." Resolution 13 also requires that components conduct meaningful shooting data and trend analyses.
During site visits and interviews, we asked senior component officials how they communicate operational, safety, and training issues to LEOs. We found that the ATF prepared semiannual summaries of its shooting incidents that it made available to all employees on the ATF intranet. The DEA prepared annual summaries of its shooting incidents that were available to employees on the DEA intranet. We found that the FBI had not prepared summaries of its shooting incidents but began to prepare them during the course of our review, an effort that was ongoing when we completed our fieldwork. The USMS did not prepare any shooting incident summaries before we began our review. In March 2004, the USMS Review Board suggested to the Director that the USMS prepare shooting incident summaries, stating:
We further suggest, in the same spirit of making information available to the Service that at the end of each Board session, a summary of all cases could be created, removing any specific individual names or districts. These could then be emailed or otherwise sent to all USMS operational personnel advising them of the facts and findings of each of the cases by the Training Academy representative. This summary could be used for educational, training and compliance purposes.
The USMS liaison told us that the USMS is implementing the Review Board's recommendation.
Incorporation of shooting incidents in training curricula. Although all of the components' training directors and supervisory firearms instructors we interviewed said that their headquarters would notify them of any safety issues disclosed during the investigative or review process and that they would promptly incorporate safety issues in policy manuals and training curricula, we found that only the DEA sent shooting incident files from its Review Board directly to its training academy for operational and training analysis. After completing the analysis, the DEA incorporated its findings directly into the training curriculum for new Special Agents. In contrast:
Consequently, the ATF, the FBI, and the USMS did not incorporate lessons learned from shooting incidents in their training curricula. According to one USMS trainer, the lack of a mechanism to incorporate lessons learned from shooting incidents into the training provided at the Academy meant that Deputy Marshals must rely on "word of mouth" for lessons learned from shooting incidents and that important details may be lost or inaccurately conveyed. Resolution 13 requires components to use statistical techniques to describe, summarize, and compare shooting incident data and to identify patterns and changes that have occurred over time in order to minimize risks to LEOs and public safety. However, the Resolution does not specifically require components to share information with one another, and we found no evidence that the components shared shooting incident data among themselves.
We believe that components could benefit from a review of other components' shooting incidents. Only a small number of shooting incidents occurred in each component yearly. During the period we reviewed, the annual number of shooting cases involving the use of deadly force never exceeded 16 in any component. However, across the Department, the number of shooting incidents was higher. Aggregating the data on all the Department's shooting incidents would provide enough data to allow the components to use statistical techniques to describe, summarize, and compare shooting incident data and to identify long-term patterns and changes that have occurred over time.
Sharing information among components could enable them to identify significant trends earlier. For instance, we compiled the shooting incident data reported for all components over the last four years and found that more than half involved vehicles (Table 10).
|Table 10: Shooting Cases Involving Vehicles|
|Component||Total Cases||Involved Suspect in Vehicle||Percentage|
|Source: OIG analysis of components' shooting incidents.|
Because they did not share data with each other, the components learned each lesson independently. For example, in November 2002 the USMS Review Board observed that Deputy Marshals were frequently involved in shooting incidents while trying to arrest fugitives in stopped vehicles and recommended that the USMS research "devices that could be used to immobilize vehicles." During the same time, the DEA identified vehicles as a principal factor in shooting incidents and conducted research on vehicle containment. Had the components shared lessons learned, the DEA could have informed the USMS that its research on vehicle containment concluded "that tire spike strips and an intentional puncture of the subject vehicle's tire(s) for the purpose of preventing a subject from fleeing proved ineffective and unreliable."49 The DEA could also have shared the "active vehicle containment technique" that the DEA developed in response to shooting incidents to make it more difficult for suspects to use their vehicles as weapons against LEOs. We found there was no Departmentwide system to disseminate information on shooting incidents. Sharing information on shooting incidents among the components as soon as they are reported would allow the components to improve their operational planning and tactics immediately and avoid mistakes made by other components. All the individual LEOs we interviewed told us that knowing about shooting incidents involving other LEOs could improve the planning of enforcement operations.
We noted several areas in the components' shooting review processes that differed significantly. We believe that the results of our review should be examined carefully by the components to identify areas that could be improved and to ensure that shooting incidents are reported promptly, investigated thoroughly, and reviewed by an objective and independent Review Board.
All of the components require a written report within one day so that senior management can make investigative decisions, but, on average, only the ATF and the FBI consistently met the requirement. Further, the FBI and the DEA are required to report shooting incidents involving injury and death to the CRD, and all the components are required to report shooting incidents to the OIG, but neither the CRD nor the OIG were informed of all reportable incidents.
Three of the components - the ATF, the DEA, and the USMS - rely on local law enforcement to conduct the criminal investigations of shooting incidents, but the FBI conducts all its own criminal investigations. Investigators assigned by the components' headquarters conducted the administrative investigation of every ATF and USMS shooting incident, but the DEA and the FBI delegated the administrative investigation of some shooting incidents to the field office to which the LEO involved was assigned.
While each of the components' Review Boards prepares a memorandum for every shooting incident reviewed, we found that only those prepared by the FBI and USMS Review Boards consistently included analysis and recommendations specific to the incident being reviewed. We also found that each component has different Review Board membership requirements, ranging from only senior-level managers to outside law enforcement to nonsupervisory personnel. Outside representation on Review Boards can improve objectivity and independence, and reduce inconsistencies among the components. The ATF approach of including experienced LEOs from peer law enforcement agencies appeared to enhance the independence and objectivity of its Review Board.
The most important difference in the components' review of shooting incidents was the lack of uniform application of the standard for determining the reasonableness of the use of deadly force. The ATF, the DEA, and the FBI Review Boards looked at the reasonableness of the LEO's belief that the suspect posed an imminent threat at the moment deadly force was used. The USMS Review Board considered the reasonableness of a Deputy Marshal's actions as a whole, including the actions that created the necessity for deadly force. As a result, Review Boards made different decisions regarding the reasonableness of the use of deadly force for similar shooting incidents. We believe that Review Boards should apply a uniform Departmentwide standard for determining the reasonableness of the use of deadly force.
Overall, we found that the components varied substantially in the time they took to complete the administrative investigation of shooting incidents. The ATF averaged 176 days; the DEA, 440; the FBI, 184; and the USMS, 262. Much of this difference appeared to be due to the time it took for each component's Review Board to meet after the completion of the investigations. The average times ranged from 39 days at the ATF to 226 days at the DEA. Only the ATF required its Review Board to meet within a specified time period (60 days after the completion of a shooting incident investigation). The other components did not require their Boards to meet within a specified time.
Although the areas we identified need to be corrected to ensure the effectiveness of the shooting review process, each component's system had strengths that the other components and the Department could use as benchmarks to improve the shooting review process. Moreover, better sharing and analysis of information on shooting incidents could identify improvements to operational procedures and training.
To better ensure timely, thorough, and objective reporting, investigation, and review of shooting incidents, we recommend that the Department:
With regard to specific component practices, we recommend that the components take the following actions to correct the specific weaknesses identified in this report.