Review of Shooting Incidents in the Department of Justice
E & I Report I-2004-010
September 2004
On August 9, 2004, the Office of the Inspector General (OIG) sent copies of the draft report to the Federal Bureau of Investigation (FBI) and requested written comments. The FBI responded to the OIG in a memorandum dated September 27, 2004. Our analysis of the FBI's response follows.
RECOMMENDATIONS
Recommendation 1: Establish a working group to consider uniform Department standards for the components' shooting incident reviews.
Summary of FBI Response. The FBI concurred with this recommendation and agreed to participate in the working group.
Status of Recommendation: Recommendation 1 is Resolved - Open. The actions planned by the FBI are responsive to the recommendation. We will close this recommendation when Departmentwide action is complete.
Recommendation 4A: Ensure compliance with its Civil Rights Division (CRD) reporting agreements.
Summary of FBI Response. The FBI concurred with the recommendation. The FBI also stated that it has substantially complied with CRD reporting requirements and noted that in a shooting incident described in the report a CRD official who served on the FBI Shooting Incident Review Group (SIRG) was aware of the incident.
OIG Analysis. The FBI's statement that a CRD attorney serves on the FBI SIRG is correct. However, in the shooting incidents we reviewed, the SIRG conducted its review an average of 184 days after the incident. Therefore, CRD participation in the SIRG review is not a substitute for investigative oversight based on the immediate report required by the FBI's agreement with the CRD.
Status of Recommendation. Recommendation 4A is Resolved - Open. The actions planned by the FBI are responsive to the recommendation. We will close this recommendation when the FBI provides us with documentation of timely reports to the CRD of all shooting incidents through December 31, 2004.
Recommendation 4B: Establish specific criteria for when to delegate shooting incident investigations to field offices.
Summary of FBI Response. The FBI concurred with this recommendation and stated that by December 31, 2004, it will establish specific guidelines on the delegation of investigations. The FBI also noted that delegating a shooting incident investigation to the field does not necessarily compromise the independence and legitimacy of the investigation.
Status of Recommendation. Recommendation 4B is Resolved - Open. The actions planned by the FBI are responsive to the recommendation. We will close this recommendation when the FBI provides us with documentation of its new guidelines.
Recommendation 4C: Consider requesting local criminal investigations of shooting incidents and avoid duplication of local criminal investigations.
Summary of FBI Response. The FBI concurred with this recommendation and by December 31, 2004, will consider the merits and demerits of requesting local criminal investigations of shooting incidents.
Status of Recommendation. Recommendation 4C is Resolved - Open. The actions planned by the FBI are responsive to the recommendation. We will close this recommendation when the FBI provides us a memorandum record of its decision regarding involving local authorities in the criminal investigation of FBI shooting incidents.
COMMENTS ON THE FINDINGS OF THE REVIEW
The FBI also provided comments regarding four of the findings in the draft report.
Summary of FBI Comments. The FBI objected to our inclusion of case examples comparing Review Board findings in two shooting incidents. The FBI also stated that readers will likely infer from our comparison that the OIG has drawn conclusions about the reasonableness of the shootings in the different examples. The FBI also commented on perceived factual differences in our comparison of the Review Board findings in two incidents in which law enforcement officers fired at a suspect in a vehicle that was driving away. Finally, the FBI noted that one of the incidents we reviewed is the subject of pending civil litigation.
OIG Analysis. The FBI's statement that our comparison of Review Board decisions in similar cases inherently implies that one of the Review Boards must have erred, is incorrect. In our report, we discuss the facts documented in completed investigations and Review Board files. We concluded that the determinations made by the Review Boards were consistent with each component's policy and practice, and with Resolution 13. Nonetheless, our analysis showed that the Review Boards were considering the circumstances surrounding shooting incidents in different ways and applying the standards for the reasonable use of deadly force differently. We did not state, or imply, that we had reached any conclusion on the reasonableness of the conclusions of any of the Review Boards. Rather, we used these examples to support our recommendation that the Department consider establishing a uniform application of the standard for determining the reasonableness of the use of deadly force.
The FBI also commented on the alleged factual differences in the examples. While no two incidents are exactly alike, the incidents we described were similar enough to demonstrate how Review Boards apply different standards with regard to similar incidents.
Finally, with regard to the FBI's comment regarding pending civil litigation and the potential for the plaintiff to seek discovery from the OIG, we did not make any comments - explicitly or implicitly - in the report regarding the merits of any pending litigation. Moreover, the OIG regularly discusses cases in its reports even when there is ongoing litigation regarding those cases. By discussing those cases, we are not commenting on any of the issues involved in the litigation. We do not believe we should remove discussions of examples in OIG reports simply because they also relate to litigation.
Summary of FBI Comments. The FBI asserted that the OIG report cited four FBI shooting incidents, when in actuality four different FBI agents discharged their weapons in one incident. The FBI also stated that it properly compelled administrative statements from the four Special Agents and described the process used to compel the statements.
OIG Analysis. The FBI's comment that the compelled statements involved four Special Agents in a single shooting incident is not accurate. There were two separate shooting incidents involving the same four Special Agents that took place late one night and early the next morning at different locations. The FBI Review Board considered the incidents separately. More importantly, we included this example because it relates to the differences between the FBI's actions regarding compelling statements and the actions of the DEA in similar cases we reviewed. Because of these and other inconsistencies, we recommended that the Department establish a working group to consider uniform Department standards for shooting incident reviews.
Summary of FBI Comments. The FBI asserted that it did not report ten shooting cases to the OIG and it was not required to do so under the existing agreement with the OIG because the FBI did not believe the shootings involved serious misconduct. The FBI stated that since July 2004, pursuant to a change in reporting requirements requiring all shootings to be reported to the OIG, the FBI has in fact notified the OIG of every shooting incident.
OIG Analysis. Although the FBI stated that it did not report ten shooting incidents because it did not believe the incidents involved serious misconduct, we found that the FBI conducted a criminal investigation in each case. The FBI has been required to report potential criminal wrongdoing or other serious misconduct to the OIG since July 11, 2001. Under this requirement, firearms discharges are reportable to the OIG except those in connection with training or off duty sports and hobbies. As such, the ten incidents should have been reported. The July 27, 2004, memorandum cited by the FBI reiterated the existing reporting requirement in order to eliminate any confusion over the requirement to report firearms discharges. The FBI's statement that it is now reporting all shooting incidents to the OIG is consistent with the requirement.
Summary of FBI Comments. The FBI asserted that its Review Board is scheduled to meet monthly if there are shooting incidents to review.
OIG Analysis. The information contained in the draft report was provided by FBI administrative personnel responsible for scheduling the Review Board meetings. Because we received conflicting statements from FBI employees regarding the scheduling of the meetings, we removed any reference to FBI scheduling of Review Board meetings from our report.