Review of Shooting Incidents in the Department of Justice

E & I Report I-2004-010
September 2004


INTRODUCTION

The use of deadly force is one of the most serious actions an individual law enforcement officer (LEO) can take in carrying out the Department of Justice's (Department's) law enforcement mission. Department policy requires that every shooting incident be reported, investigated, and reviewed to determine the reasonableness of the application of deadly force and to provide management with appropriate recommendations to improve operational training and on other relevant issues, including disciplinary action.

Within the Department, different components conduct law enforcement operations, including the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF); the Drug Enforcement Administration (DEA); the Federal Bureau of Investigation (FBI); and the United States Marshals Service (USMS).15 These enforcement operations include conducting surveillance, executing search warrants, and arresting fugitives and other suspects. In fiscal year (FY) 2003, these components made 86,765 federal arrests while carrying out their law enforcement missions (Table 1).

Table 1: Number of Federal Arrests, FY 2003
Component LEOs Arrests Enforce Federal Laws Related to:
ATF 2,407 9,239 Alcohol, tobacco, firearms, explosives, and arsons
DEA 4,640 26,594 Controlled substances
FBI 11,751 14,742 Criminal acts and statutes
USMS 3,342 36,190 Fugitive felons
TOTAL 22,140 86,765  
Source: Components' data.
Note: The portion of the ATF responsible for enforcing federal laws related to firearms, explosives, and arsons joined the Department on January 24, 2003.

The LEOs who enforce federal laws generally carry firearms. During FY 2000 through FY 2003, the components reported that 267 shooting incidents occurred during enforcement and other operations, including training, cleaning weapons, and while acting as Peace Officers.16 Of these 267 shooting incidents, 105 were intentional discharges at suspects during enforcement operations, 14 were unintentional discharges during enforcement operations, 60 were intentional discharges at animals (e.g., vicious dogs, injured deer), and 88 were unintentional discharges during non-enforcement activities (e.g., training, weapons cleaning). (See figures 2 and 3.)

Figure 2: Shooting Incident Types by Component
FY 2000 - FY 2003

For the ATF, there were a total of 30 shooting incidents - 14 for enforcement operations intentional, 12 for non-enforcement unintentional and 4 for animal control. For the DEA, there were a total of 95 shooting incidents - 38 for enforcement operations intentional, 9 for enforcement operationals unintentional, 25 for non-enforcement unintentional and 23 for animal control. For the FBI, there were a total of 100 shooting incidents - 31 for enforcement operations intentional, 3 for enforcement operationals unintentional, 43 for non-enforcement unintentional and 23 for animal control. For the USMS, there were a total of 42 shooting incidents - 22 for enforcement operations intentional, 2 for enforcement operationals unintentional, 8 for non-enforcement unintentional and 10 for animal control.
Source: OIG analysis of components' shooting incident data, logs, and cases.


Figure 3: Shooting Incidents by Type, FY 2000 - FY 2003
Total Incidents: 267

There were 105 or 39% for enforcement operations intentional, 14 or 5% for enforcement operationals unintentional, 88 or 33% for non-enforcement unintentional and 60 or 23% for animal control.
Source: OIG analysis of the components' shooting incident data, logs, and cases.
Note: An incident may involve more than one LEO or suspect.

Shooting Incident Reporting, Investigation, and Review

Department policy requires that every discharge of any firearm by an LEO, other than for training or recreation (e.g., hunting, target shooting), must be reported, investigated, and reviewed. Since September 21, 1995, the ATF, the DEA, the FBI, and the USMS have reviewed shooting incidents using procedures established in accordance with the Department's Policy Statement on Reporting and Review of Shooting Incidents, commonly referred to as Resolution 13 (see Appendix I).17 Resolution 13 requires senior management to assess each firearm discharge to determine whether it was a reasonable use of deadly force and to identify any needed improvements in training, planning, and operational procedures. Resolution 13 established a three-step shooting review process in which each shooting incident is reported, investigated, and reviewed. Each of the components established different procedures to implement the three-step process (Figure 4). After completing the shooting incident review process, the components may discipline the LEO using the components' standard disciplinary process.

Figure 4: Shooting Incident Reporting,
Investigation, and Review Process

[Image Not Available Electronically]
Source: OIG summary of components' policies.
Terms in figure: SES - Senior Executive Service, SAC - Special Agent in Charge, DUSM - Deputy U.S. Marshal.

Reporting. Each component's shooting incident policy requires LEOs to immediately notify their supervisors when they discharge a firearm for any reason other than training or recreation. Supervisors are required to notify officials at headquarters immediately by telephone and to submit a written report within, at most, 24 hours. The initial written report promptly involves a designated senior manager in appropriate oversight of the decisional and investigative process as required by Resolution 13. In addition to internal reporting requirements, components may have to report shooting incidents to other Department entities. Attorney General Order 2492-2001, July 11, 2001 (Order 2492), requires that "all evidence and non-frivolous allegations of criminal wrongdoing and serious administrative misconductů shall be reported to the OIG."

Components also are required to report incidents involving potential violations of federal civil rights statutes to the Civil Rights Division (CRD), Criminal Section. Below are the reporting arrangements by component.

Investigation. Resolution 13 requires that the components investigate shooting incidents to determine whether the shooting violated any law or policy regarding deadly force or weapons safety. To examine any potential violations of law, the ATF, the DEA, and the USMS generally rely on state and local law enforcement agencies to conduct criminal investigations of shooting incidents, while the FBI conducts its own criminal investigation of each of its shooting incidents. All the components conduct their own administrative investigations to identify violations of policy and needed improvements in training and to support decisions regarding disciplinary action (Figure 5).21

Figure 5: Standard Shooting Incident Investigative Steps

[Image Not Available Electronically]
Source: OIG summary of components' policies.

Each component has an Office or Division of Inspections responsible for investigating shooting incidents.22 The internal investigators either conduct the investigation, assign other investigative personnel to conduct the investigation, or delegate the investigation to the field office to which the LEO is assigned. Some component policies contain guidance for selecting the investigative team, and other policies list the criteria for determining whether to delegate the investigation.

The components' policies also provide guidance for conducting investigations, including what the shooting incident investigation files should include and to whom the completed investigation should be submitted. According to components' policies, complete investigative files should contain:

The ATF, DEA, and USMS policies require that shooting incident investigations be completed within 30 days of the incident. The FBI policy requires that investigations be completed within two weeks of the incident. All of the component policies allow for extensions.

Both Resolution 13 and the components' policies direct that the investigation balance the importance of conducting an objective, thorough, and timely investigation with the well being of the LEOs for whom shooting incidents are traumatic events. Resolution 13 states:

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 components' policies state that LEOs involved in shooting incidents will be offered mental heath and medical examinations and be given time away from normal enforcement duties. The ATF assigns Special Agents involved in shooting incidents to administrative duties until they are cleared to return to their regular duties. The DEA assigns Special Agents to light duty for a period of five days, which may be extended for an additional five days. The FBI encourages Special Agents to take five days of administrative leave. Deputy Marshals return to work only when directed to do so by their supervisors.

Review. When a shooting incident investigation is complete, Resolution 13 and the components' policies require a Review Board to:

ATF. The ATF's Assistant Director for Inspections chairs its Shooting Incident Review Board (SIRB). The SIRB members include one of the three Deputy Assistant Directors for Field Operations (East, West, or Central), the Associate Chief Counsel, the Assistant Director for Training and Professional Development, the Chief of the Special Operations Division, and two senior-level managers from other federal law enforcement agencies. In addition to shooting incidents, the SIRB reviews less-than-lethal munitions discharges.24 Board members receive advance copies of all investigations scheduled for review before the meeting. The SIRB determines if each incident was "justified" or "unjustified" and refers unjustified incidents to the ATF's Professional Review Board for discipline.

DEA. The DEA's Shooting and Assault Incident Review Committee (SAIRC) is chaired by the Chief Inspector, Inspections Division, and includes the Chief of Operations (Vice-Chairperson) and the SAC of the Office of Training. The SAIRC reviews all shooting incidents except those investigated as misconduct matters by the DEA's Office of Professional Responsibility (OPR). SAIRC members do not receive material in advance of meetings, but instead receive presentations at the meetings from the inspector responsible for the shooting incident investigation. If the SAIRC does not find the use of force "justified," it may declare the shooting "unjustified," refer the case to the OPR for further investigation of suspected misconduct, or forward the case to the disciplinary Board of Professional Conduct without a finding.

FBI. The FBI's Shooting Incident Review Group (SIRG) includes up to 13 members representing various divisions and positions within the FBI. The Deputy Assistant Director of the Inspections Division is the chairperson, and the Chief Inspector of the Office of Inspections serves as the alternate Chairperson. Other members include representatives from the Criminal Investigative Division, National Security Division, Training Division, Personnel Division, Office of General Counsel, Laboratory Division, and a Field Supervisor from Washington, D.C. (preferably one who has been involved in a shooting). The SIRG also includes an outside member from the CRD and a Department attorney.25

The complete investigative case file for each incident to be reviewed is sent to Review Board members in advance of the meeting. The SIRG reviews every shooting incident and decides whether the firearm discharge was justified or unjustified.26 The SIRG also prepares a memorandum to the Assistant Director for Inspections summarizing each case. The SIRG may also make recommendations for discipline, and in those cases, the SIRG memorandum is provided to the OPR for further action.

USMS. The USMS Shooting Review Board (SRB) is chaired by a U.S. Marshal and includes a Chief Deputy U.S. Marshal, a Supervisory Deputy U.S. Marshal, a supervisory or management rank representative from the USMS's Judicial Security Division, a supervisory or management rank representative from the USMS's Investigative Services Division, a USMS Instructor from the Federal Law Enforcement Training Center (FLETC), and a Deputy Marshal. All SRB members are appointed to 2-year terms, which may be extended. All voting members must be LEOs with at least four years of law enforcement experience. The SRB also includes a representative of the USMS Office of the General Counsel as a nonvoting member. In advance of USMS Review Board meetings, members receive electronic copies of the complete investigative case file for each case. The SRB reviews all shooting incidents, except those involving the use of less-than-lethal munitions and determines whether each firearm discharge was authorized or unauthorized. The SRB produces a report for the USMS Deputy Director describing its determination and the basis for the decision in each case.


Footnotes

  1. In addition, the Office of the Inspector General (OIG) has law enforcement authority, but Special Agents of the OIG were not involved in any shooting incidents during FY 2000 through FY 2003.

  2. LEOs can act as authorized "Peace Officers" under state law. The authority of Peace Officers varies by state, but generally includes unplanned law enforcement actions outside of the LEOs' normal duties to protect the public, such as intervening in burglaries, robberies, assaults, and other crimes that LEOs may encounter.

  3. The portion of the ATF responsible for investigating firearms, explosives, and arsons was transferred from the Department of the Treasury to the Department of Justice on January 24, 2003. However, the ATF has been subject to the same policies as the FBI, the DEA, and the USMS since 1995.

  4. Letter from Section Chief Criminal Section, CRD, to Deputy Chief Inspector, DEA Office of Professional Responsibility, September 12, 2000, Procedures for Referral and Investigation of DEA Incidents Suggesting Possible Criminal Civil Rights Violations.

  5. Letter from Section Chief Criminal Section, CRD, to Deputy Assistant Director of Inspections Division, FBI, June 26, 2000.

  6. This reporting requirement was established in a memorandum from the Assistant Inspector General for Investigations to the Director of the USMS (Guidelines for Reporting Misconduct to the OIG, July 1, 1998). The reporting requirement is now included in USMS policy (USMS Memorandum, Reporting Requirements: Allegations of Misconduct, March 21, 2003).

  7. The OIG has jurisdiction to investigate misconduct in components, but generally it does not conduct administrative reviews of shooting incidents and allows the components to perform the investigations.

  8. The USMS created its Office of Inspections during our review. See Memorandum from Benigno G. Reyna, Director, USMS, to All USMS Employees, Establishment of the U.S. Marshals Service Office of Inspections, March 4, 2004.

  9. An IIP is an inspector serving in a field office who can be assigned by the Chief Inspector to investigate a shooting incident in another field office or in the same field office to which the IIP is assigned. "During a shooting incident investigation [FBI policy states that] the IIP will report directly to the Chief Inspector of the Office of Inspections."

  10. Both the ATF Special Response Team and the USMS Special Operations Group use 12-gauge shotguns to fire small fabric bags filled with lead shot. These "beanbag rounds" are used as a "less lethal" response where force is authorized but deadly force is undesirable. The ATF reports and reviews the use of beanbag rounds, but the USMS does not. The DEA and the FBI do not use beanbag rounds.

  11. The OIG also participated on the FBI's Review Board, but in April 2004 withdrew from participation because such participation could pose an appearance of conflict of interest if the OIG were required to review the conduct of a specific Review Board.

  12. The FBI Manual of Investigative Operations and Guidelines requires that the Review Board first decide whether a firearm discharge was intentional or unintentional. We did not find that this is currently the practice of the Review Board.