Expired Body Armor, Inconsistent Training Raises Risks for Marshals

WASHINGTON – Thousands of U.S. Marshals Service (USMS) officers tasked with hunting down dangerous fugitives are relying on expired protective and trauma gear and insufficient training, according to information obtained by the Senate Judiciary Committee. Despite repeated warnings about the increased risks to employees and public statements prioritizing safety, agency leadership has reportedly failed to follow through with critical steps to ensure officers are appropriately trained and equipped to carry out often dangerous duties. In two separate letters to USMS leadership, Senate Judiciary Committee Chairman Chuck Grassley is calling on the agency to explain how the lapses were allowed to occur.

A 2014 USMS memo outlined a plan to replace body armor kits every five years to normalize the budget request process and ensure that critical equipment is regularly updated. Because most of the USMS’ 3,900 operations employees received their gear in 2011 or 2012, much of the body armor needs to be replaced by 2017. However, as of February, only certain portions of the kits had been updated for a limited number of employees.

In recent testimony before Congress, USMS leadership discussed the need to replace body armor consistent with the five-year schedule. However, USMS’ budget requests for the replacement fell well short of the level required to implement the replacement plan and contracts to acquire the new gear, indicating that the agency was knowingly underfunding the replacement plan. Earlier this year, the agency planned to use the same pot of taxpayer funds to provide across-the-board promotions to as many as 60 employees whose duties are similar to other employees across the country.

Even with additional funds allocated, filling orders under the contract and deploying armor to employees will take time. Barring actual equipment upgrades, more than 2,000 employees will have expired armor at the end of 2017. Text of Grassley’s body armor letter follows this release.

In 2011, following several line-of-duty deaths, the USMS developed the High Risk Fugitive Apprehension Training Program to establish a uniform nation-wide training regime based on best practices and lessons learned from earlier events. While the program’s developers recommended that instructors have at least five consecutive years of violent fugitive apprehension experience, the final criteria was significantly less. Under the implemented program, instructors could be certified even if they had no experience in high risk fugitive apprehension and had never attended the training they would be tasked to teach.

USMS leadership was allegedly warned on multiple occasions that the lack of instructor vetting and oversight would lead to a breakdown in uniform training. According to information obtained by the committee, those breakdowns have led some task forces to adopt tactics that actually increase risks to officers. In 2015, a USMS officer was shot and killed while participating in an operation in Louisiana to arrest a double-murder suspect. The subsequent incident report, which the agency has refused to share with leadership in the field, revealed multiple failures to follow the training program.

Grassley is seeking information on the implementation of the training program, including an explanation for why the instructor criteria was reduced and whether the agency will adopt new safety protocols based on information gained from incident reports following operations like the one in Louisiana.

Full text of Grassley’s letter on instructor vetting follows this release.

July 5, 2017

David Harlow

Acting Director

United States Marshals Service

United States Department of Justice

Washington, D.C. 20530

Dear Acting Director Harlow:

On April 26, 2017, you testified before the House Committee on the Judiciary’s Subcommittee on Crime, Terrorism, Homeland Security, and Investigations. In your written testimony, you stated that “in 2014 we researched and developed a program for the cyclical replacement of body armor, which ensures that all body armor is replaced on a 5-year cycle to take advantage of advances in protective technologies.”^[1] The U.S. Marshals Service (USMS) awarded a 5?year, $12.49 million contract in February 2016 for this purpose.

The USMS supplies operational employees with body armor kits. The kits include multiple items, such as carriers (vests), concealable vests (worn under the clothes), ballistic inserts (soft body armor, designed to withstand pistol-caliber ammunition), and ceramic rifle plates (designed to withstand rifle rounds). The armor expires every five years. An April 16, 2014, “Body Armor Committee Meeting” memorandum to then-Assistant Director of the Training Division William Fallon memorializes the USMS “replacement plan for body armor, ballistic shields, and TASERs®,” designed “to normalize the budget process to ensure the ability to replace this critical equipment on a regular basis.”^[2] According to that memorandum, most operational employees received their current equipment in Fiscal Years 2011 and 2012, and that equipment, such as ballistic panels and plates, “would need to be replaced by 2017.”^[3]

Despite this 5-year cycle replacement plan, according to documents obtained by the Committee, the USMS began replacing only two items from the operational employees’ armor kits—ballistic inserts (soft armor) and concealable vests—in November 2014. The USMS largely has not replaced other equipment in those kits, such as the rifle plates. According to documents obtained by the Committee, as of February 2017, the USMS had replaced only 1,761 ballistic inserts and vests. The USMS has more than 3,900 operational employees, most with armor expiration dates in 2016 and 2017.

Accordingly, more than 1,400 operational U.S. Marshals Service employees reportedly were wearing expired soft body armor at the end of June. At the time of the April hearing, more than 2,000 were scheduled to be wearing expired armor by the end of 2017. According to the USMS Congressional Budget Justification for FY 2017, tests of the expired soft body armor “resulted in 11 penetrations out of 84 shots taken, and sufficient back-face deformation,” which “would create significant blunt force trauma to the person wearing the armor.”^[4]

Information about the amount of expired body armor worn by operational employees was compiled at the request of the Assistant Director for the Training Division for the express purpose of raising body armor as a “mission challenge” in a call with you in February 2017. But when a member of the House Subcommittee asked you about expired equipment on April 26, you stated you were not aware of it.^[5]

Your written testimony to the House Judiciary Committee also states that the USMS “ensure[s] that all personnel receive officer safety training on a continuous basis” and remarked on several training courses including “Deputy Trauma Medicine.” These remarks echo those of Associate Director for Operations William Snelson at the USMS headquarters opening on December 15, 2016, an event attended by the Deputy Attorney General. ADO Snelson stated at that time that all operational staff have attended the Deputy Trauma Course. He also said “every deputy” has been issued a “trauma kit” for medical emergencies, along with “countless” task force officers.

However according to documents obtained by the Committee and contrary to the public statements, numerous operational and task force employees have not attended this course and have not received trauma kits. Moreover, two critical elements in those kits expired at least two years ago. These failures to fully support USMS personnel have allegedly been raised—repeatedly—to agency leadership to no avail.

During the hearing, you mentioned the need to “refocus” the agency’s budget and “reprogram priorities.” The agency’s budget justifications for FY 2017 and FY 2018 asked for approximately $1.3 million for body armor replacement. However, leadership was reportedly told that $1.3 million per year would be insufficient to carry out the agency’s 5-year cycle replacement plan. This amount is also about half the annualized amount allocated under the February 2016 contract for body armor. The plan reportedly would actually have required approximately $10 million to replace all the equipment purchased in 2011-2012. This suggests the agency knowingly underfunded the plan, resulting in expired armor that the agency knew had a significant failure rate.

These funds also fall under the agency’s lump sum appropriations for salaries and expenses, and it appears the agency has had discretion to reallocate funds in that account to pay for the body armor replacement. Apparently, the agency chose not to do so. And only recently, after being informed that an employee communicated these concerns to the Committee, and after they were raised in the House hearing, has the agency made efforts to provide additional funds.^[6]

The USMS is also, however, set to “establish[] a new [Regional Fugitive Task Force] structure.^[7] According to the Federal Managers Association, that new “structure” was originally planned as an across-the-board promotion for potentially more than 60 operational employees, doing essentially the same job as numerous deputy marshals around the country. After the FMA raised concerns about the method of elevating these roles, the USMS decided to advertise them through the traditional hiring process consistent with merit system principles.

It is troubling that the agency was ready to expend the funds to promote 60 people with no competition, while ignoring pleas to replace body armor with a 13% failure rate currently worn by thousands of operational employees across the agency whose daily job it is to apprehend violent fugitives.

In addition to the records requested in my letter of March 27, 2017, please also provide by July 19, 2017, all Marshals Service records relating to expired officer safety equipment or to the future expiration of officer safety equipment, including body armor, trauma kits, helmets, shields, tasers, and any other equipment, from 2016 to the present. Please do not wait to produce the information requested on March 27 until you have gathered the information requested in this letter. Please also answer the following questions, numbering your responses in accordance with the corresponding questions.

1.       When you testified before the House Judiciary Committee:

a.       Were you aware that USMS employees were wearing and/or carrying expired equipment? In your answer, please explain when you first learned of it.

b.      Were you aware that many more were set to be wearing and/or carrying expired equipment in the coming months and year? In your answer, please explain when you first learned of it.

c.       Did you have a call or meeting in February 2017, or at any other time, with senior staff where the Assistant Director for the Training Division raised funding issues for body armor replacement?

2.       Please provide all slides and other records prepared for Quarterly Performance Reviews from January 2014 to the present that mention body armor or other officer safety equipment.

3.       Who else among senior leadership in the Marshals Service knew that concerns had been raised regarding expired equipment? When were they first made aware of these issues? What was the response to those concerns?

4.       Why has the Marshals Service for so long failed to fund its body armor replacement reprogram?

5.       Has the agency informed its employees that they are carrying expired equipment and disclosed to them its demonstrated failure rate? When? If not, why not?

6.       Why did the Marshals Service request only $1.3 million for body armor replacement in FY 2017 and FY 2018?

7.       When did the Department of Justice determine to request an additional $12 million for body armor and for SOG training? How much will actually be allocated toward replacing body armor? Trauma kits?

Thank you for your cooperation in this important request. Please contact DeLisa Lay of my Committee staff with any questions at (202) 224-5225.

Sincerely,

Charles E. Grassley

Chairman

cc: The Honorable Dianne Feinstein

Ranking Member

Senate Committee on the Judiciary

The Honorable Trey Gowdy

Chairman

Subcommittee on Crime, Terrorism, Homeland Security and Investigations

The Honorable Sheila Jackson Lee

Ranking Member

Subcommittee on Crime, Terrorism, Homeland Security and Investigations

The Honorable Jeff Sessions

Attorney General

U.S. Department of Justice

The Honorable Michael E. Horowitz

Inspector General

Acting Special Counsel

Office of Special Counsel

July 5, 2017

David Harlow

Acting Director

United States Marshals Service

United States Department of Justice

Washington, D.C. 20530

Dear Acting Director Harlow:

On March 10, 2015, a Deputy U.S. Marshal was shot and killed while participating in a high risk fugitive apprehension operation targeting a double-murder suspect in Baton Rouge, Louisiana. The After Action Review of the shooting cited multiple failures by the U.S. Marshals Service (USMS) task force to adhere to USMS policy and clear departures from the agency-approved standardized training for fugitive operations. According to information obtained by the Committee, it appears those mistakes may reasonably be traced to the agency’s failure to properly implement its own training program.

In 2011, following the line-of-duty deaths of multiple deputies and task force officers, former Director Stacia Hylton established a group of subject matter experts, known as the Fugitive Risk Mitigation Assessment Team (FARMAT or the Team), to study risks associated with the agency’s performance in apprehending violent fugitives. The Team’s findings and analysis led to the creation of a “standardized tactical training program” for USMS operational employees and task force officers, known as the High Risk Fugitive Apprehension (HRFA) Training Program.^[8]

The program would proceed in stages. First the experts would train other officers, and then those Tactical Training Officers (TTOs) would deploy the standardized training throughout the agency. The program required the TTOs to meet specific criteria prior to selection, and then undergo additional training and certification. The criteria were developed by “Fugitive Apprehension Subject Matter Experts (SMEs).”^[9] Based on an August draft of this plan, SME-recommended criteria included “5 or more years of consecutive violent fugitive apprehension experience.”^[10]

However, the version of the plan later authorized in December 2011 claims—erroneously, according to a senior management official—that the SMEs actually recommended far less demanding criteria, including only “three or more years of consecutive fugitive apprehension experience, and/or lead instructor experience in law enforcement curriculum.”^[11] Thus an instructor could teach high risk fugitive apprehension without having any experience in high risk fugitive apprehension, and without ever having attended high risk fugitive apprehension training.

Reportedly, that is exactly what happened when USMS began certifying Special Operations Group (SOG) deputies as TTOs without vetting them or subjecting them to the recommended criteria. Some of them reportedly had little fugitive operations experience and some have never attended the course they are to teach.

Agency leadership allegedly was warned repeatedly about the increased risk to operational personnel associated with un-vetted instructors and the breakdown in the standardization of fugitive apprehension training and techniques. Although leadership understood these points to be critical to the success of the training program, they did not heed the warnings. In 2013, then-Assistant Director William Snelson actually cited this need for continuity as justification for postponing the mandatory retirement of a former chief inspector involved in the program.^[12] He wrote: “As the first portion of the HRFA training nears completion, it is important to maintain continuity and standardization in the next phase of the program.”^[13] Inexplicably, the chief inspector was extended, but was transferred and allegedly never worked on the program again. The position reportedly was reprogrammed instead of being filled.

With un-vetted TTOs and a breakdown in the continuity of the program, regional and district task forces around the country reportedly are deploying different tactics. In some cases task forces reportedly are learning tactics that increase, rather than mitigate, the safety risks the training was designed to overcome. Leadership has been warned that the risk was further aggravated by the lack of sufficient staff to oversee the training’s deployment and correct mistakes.

All of these warnings to agency leadership about the breakdown of the program reportedly were given both before and after the Louisiana operation. Unfortunately, many of the operational steps stressed by agency policy and the HRFA training were not followed. For example, no operational plan was developed. USMS Standard Operating Procedures for Enforcement Operations requires a written pre-operational plan.^[14] If there are time constraints, employees must at least use a checklist and communicate a verbal plan. No assignments were given to deputies ahead of time, and, although the district included a SOG deputy as a TTO, the district staff at the time had received “very little tactical training.” The AAR also noted multiple additional departures from the training and standard operating procedures.

For the safety of other deputies and law enforcement officers involved in high risk fugitive operations, this event should be examined—in a transparent manner—in the larger context of the agency’s own policies, practices, and reports. Those documents show that agency leadership sought expertise in fugitive apprehension operations to develop standardized training that would minimize risk. Experts developed that training and the criteria required to teach it. But the criteria was watered down, and instructors were chosen without proper vetting. Despite agency leadership’s own recognition of the crucial importance of maintaining continuity in the training program, the same leadership did not fully support their own goals. Now, it appears that the program has not been implemented as designed, un-vetted instructors are not teaching the standard training, deputies are learning disparate techniques, and there is little oversight of what is actually taught and deployed in high risk fugitive operations. The result is more risk, not less, and the Louisiana operation appears to bear that out.

Additionally, according to USMS employees, the After Action Review of that operation has not been shared with agency leadership in the field or deputies for risk mitigation, despite the reported request of the previous head of the Training Division to do so. If true, any lessons gleamed from this horrific event are not being learned.

Accordingly, please provide detailed, written answers to the questions below by July 19, 2017. Please number your answers according to the corresponding questions.

1.       How many employees have been certified as TTOs under the training program?

2.       How many TTOs are SOG deputies?

3.       Please describe in detail the vetting process actually used in selecting TTOs, including in selecting SOG deputies for TTO positions.

4.       Has USMS leadership ever considered disbanding SOG? When?

5.       Why were the qualifications for TTOs altered from August to December 2011?

a.       Who made that decision?

b.      Were any SMEs on high risk fugitive apprehension, including those involved in creating the HRFA training, consulted before that decision was made? Why or why not? If any were consulted, please identify them.

6.       Why wasn’t the position that the chief inspector AD Snelson requested an extension for filled?

7.       Has the USMS made findings from the Louisiana operation available to leadership and operational personnel for risk mitigation? Why or why not?

8.       Will the USMS make findings from this or other shooting incidents available to leadership and operational personnel for risk mitigation? Why or why not?

Thank you for your cooperation in this matter. Please contact DeLisa Lay of my Committee staff at (202) 224-5225 with any questions.

Sincerely,

Charles E. Grassley

Chairman

cc: The Honorable Dianne Feinstein

Ranking Member

The Honorable Michael E. Horowitz

Inspector General

U.S. Department of Justice

Adam Miles

Acting Special Counsel

Office of Special Counsel

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