DEPARTMENT OF JUSTICE REPORT ON INTERNAL REVIEW REGARDING THE RUBY RIDGE HOSTAGE SITUATION AND SHOOTINGS BY LAW ENFORCEMENT PERSONNEL
V. RECOMMENDATIONS
Law enforcement officials confronted fundamental and recurring problems of crisis management at Ruby Ridge. Recently, the Department of Justice completed an exhaustive review of the government's response to the crisis at Waco, Texas. The review included recommendations for managing barricade/hostage situations, coordinating law enforcement efforts, and dealing with persons whose motives and beliefs are unconventional.
Our recommendations expand on some of the ideas expressed in the Waco report, and, because each crisis presents its own particular difficulties, we offer recommendations emanating from the Ruby Ridge situation.
1. The Policy for the Use of Deadly Force and the Authorization Structure for Rules of Engagement Must be Standardized for All Federal Law Enforcement Agencies.
We believe that all federal law enforcement officers should be governed by a standard deadly force policy. Thus, we recommend that the Department of Justice establish a universal policy on the use of deadly force to govern the law enforcement components within the Department and to serve as a model for other agencies.
We have concluded that the special Rules of Engagement in force at Ruby Ridge violated the Constitution of the United States. We also found that the poorly drafted and ambiguous rules created confusion among those who were obliged to make instantaneous, life and death decisions while attempting to obey the requirements of the rules. In hostage/barricade situations, law enforcement officers need a clear definition of the conditions under which deadly force may be employed. It is critical that law enforcement personnel have a common and clear understanding of the rules governing their conduct. Moreover, when special rules of engagement are necessary, established review and authorization procedures must be in place.
Recently, the Department of Justice established the Office of Investigative Agency Policy, headed initially by the Director of the FBI. We suggest that Office may be best equipped to develop a standardized policy on the use of deadly force and to formulate procedures for formulating and authorizing special rules as needed.
2. Crisis Response Teams Need to be Created
As the authors of the Waco Report observed, it is imperative that specially trained crisis managers, familiar with relevant tactical, behavioral, and scientific disciplines, be available to respond to crises. FBI special agents in charge of particular geographical areas are not necessarily the best qualified individuals to supervise the government's response to crisis situations. We recommend that specially trained crisis managers should be deployed for that purpose. Expertise, not geography, should control. The recent consolidation of the FBI negotiations and tactical operations, as recommended in the Waco Report, will have an impact on the role both disciplines play in resolving crises.
We enthusiastically endorse the recent proposal by the Terrorism and Violent Crime Section of the Department of Justice that the FBI Crisis Response Team include specially trained prosecutors to provide legal support to tactical teams. Substantial difficulties confront prosecutors preparing a criminal case after a violent standoff between suspects and law enforcement. Law enforcement agents in such situations need to be mindful that a successful prosecution is one of the objectives of a favorable resolution of the crisis. The presence of prosecutors at crisis sites can contribute significantly to the ultimate success of the law enforcement effort within the criminal justice system.
Frequently, as at Ruby Ridge, the local FBI and local SWAT teams arrive at the scene before the HRT. Therefore, we propose periodic joint training exercises by enhanced Crisis Response Teams, HRT, FBI SWAT teams and other federal and local law enforcement agencies. Such cross-training, as discussed in detail in the Waco Report, would have a number of benefits, including greater knowledge and appreciation of the contributions of each element of the response team.
3. A Multi-Agency Review with DOJ Representation Should be Established to Review Shooting Incident Reports
We found that the FBI review of the shooting incident at Ruby Ridge was not sufficiently thorough or accurate. We recommend that all internal reviews of shooting incidents by federal agencies be scrutinized by a board of representatives of law enforcement agencies prior to the close of the internal review process. The board should include at least one DOJ attorney with special expertise in this area.
The board could adopt the agency's findings and recommendations, return the report for additional inquiry, or refer the report to the appropriate component of the Department of Justice. The board would also be responsible for weighing recommendations made by the agency review team.
Such a process would encourage a higher quality of internal review throughout federal law enforcement agencies as well as increase public confidence in the review process.
4. Coordination Must Be Improved Between the FBI and Prosecutors in Regard to Discovery
Significant problems in the Ruby Ridge prosecution arose in the discovery process. The FBI delayed giving prosecutors the documents they needed for trial preparation and to provide to the defense in discovery. The delayed production of these documents to the defense occurred, in part, because of disputes between the FBI and the prosecutors about the material that was required to be produced. The delay in the production of the FBI Shooting Incident Report exemplifies this problem.
We recommend that the Department of Justice mandate that the FBI release to prosecutors Shooting Incident Reports and supporting documentation when a confrontation has resulted in death or serious injury. Moreover, the FBI should denominate a unit within the Bureau to coordinate and monitor discovery in a timely and thorough manner. Finally, the Department of Justice should establish guidelines governing the production of FBI material.
5. Coordination Among the FBI Crime Scene Investigation Team, the FBI Laboratory, and the Prosecutors Must Be Improved
Our report is critical of the crime scene investigation at Ruby Ridge. Because an experienced evidence response team was not used to recover and preserve evidence, the quality of the search and the resulting evidentiary analyses were compromised. To increase the chances of a successful prosecution, FBI Headquarters should mandate that its evidence response team be used in situations like Ruby Ridge to conduct systematic and thorough crime scene investigations.
The FBI Laboratory has for years been under conflicting pressures to perform analyses quickly for many different cases. Nonetheless, we believe that the problems that our inquiry has disclosed could have been avoided. The FBI Laboratory should not key its analyses to the trial date. Prosecutors need laboratory analyses to develop a theory of their case, and analyses often suggest that additional examinations should be performed. We also recommend that the FBI assign an agent familiar with the theory of the case, the evidence, anticipated defenses, and FBI forensic capabilities to coordinate the prosecution's interaction with the Laboratory. In complex cases, this role may be exclusive of other responsibilities.
We also recommend that the FBI reevaluate its policy on memorializing witness interviews. We found inaccuracies in FD-302 interview reports of critical trail witnesses, which undermined their credibility at trial. The FBI needs to give consideration to other methods available that would more accurately memorialize witness interviews.
6. U.S. Attorneys' Offices Should Establish A Formal Indictment Review Process
The indictment drafted by Assistant U.S. Attorney Howen was reviewed and approved solely by U.S. Attorney Ellsworth. A number of defects in the indictment went undetected. We believe that significant indictments should be more carefully scrutinized.
We recommend that significant indictments be formally reviewed by a committee of Assistant U.S. Attorneys within a particular office, who have been thoroughly briefed on the theory of the case, the evidence, and anticipated defenses or problems. We do not suggest that such a process would resolve every factual or legal difficulty. However, it would encourage a more rigorous analysis of the relevant conduct and would probably ensure more appropriate charges.
7. Other Recommendations
We recommend that our analysis of the conduct of Assistant U.S. Attorney Ronald Howen be referred to the Executive Office for United States Attorneys for whatever action it deems appropriate.
Finally, we recommend that our findings concerning the events surrounding the shooting of Vicki Weaver by the FBI sniper/observer on August 22, 1992 and the Rules of Engagement under which he operated be referred to the appropriate component of the Department of Justice for an assessment of its prosecutive merit.