Delaware AG's Office Full Report on the Use of Deadly Force in Prison Hostage Incident - WBOC-TV 16, Delmarvas News Leader, FOX 21 -

Posted 08/30/04

Delaware AG's Office Full Report on the Use of Deadly Force in Prison Hostage Incident

INTRODUCTION


This is the report of the Office of the Attorney General on the use of deadly force against inmate Scott Miller in Bldg. 24, the medium housing unit, of the Delaware Correctional Institution at Smyrna, Delaware on July 12, 2004.  Director of Investigations Robert Carmine conducted the investigation for the Department of Justice and Deputy Attorney General Eugene M. Hall supervised the investigation and review of the use of force for the Office of the Attorney General.

Statements were taken from all personnel who were at the scene or directly involved in the incident.  In addition, a female counselor, who had been taken hostage and raped by Miller, was interviewed.  Additional interviews were taken from other civilian and sworn employees of the Department of Correction. Physical evidence, reports and memoranda written by State Police personnel and correctional employees, EMS and hospital records, the medicalexaminer's report and photographs of the scene were reviewed.  An inspection of the scene was conducted the evening of the incident. 

PURPOSE OF THE ATTORNEY GENERAL'S REPORT

The Attorney General’s investigation of law enforcement shootings serves a special but limited purpose. The Attorney General determines whether the officers’ use of deadly force constitutes a criminal act. The Attorney General does not establish or enforce internal law enforcement agency policies concerning the proper use of deadly force by officers. Departments are responsible for establishing and enforcing guidelines for the use of force by their officers and for determining whether an officer’s actions were consistent with such guidelines in a given case.

The only purpose of the Attorney General’s investigation of this shooting is to determine whether Lt. Keith Hoffer committed a crime when he used deadly force against Scott Miller. This report expresses no opinion whether or not the officer’s actions complied with any Department of Correction policies or procedures concerning the use of force set by that Department nor examines any contributing factors, policies or administrative decisions leading up to the incident. That is a matter of a separate internal investigation and review being undertaken by the Department of Correction.

FACTS OF THE INVESTIGATION

On July 12, 2004, at approximately 10:30 AM at the Correctional Center in Smyrna, Scott Miller, a sentenced inmate, while armed with a shank, kidnapped and took a 27-year-old female prison counselor hostage. 

Miller, a convicted serial rapist, was serving a 694 year sentence.  He produced a prison shank with an 8 inch blade of sharpened metal, a portion of which was wrapped with plastic and tape to fashion a handle, and placed it against the counselor’s neck and forced her first into a bathroom in the corridor of the offices of the counselors and support staff.  A male counselor attempted to intercede by grabbing Miller’s arm but was forced back when Miller tried to stab him with the shank. The male counselor, with the assistance of other employees, held the handle of the bathroom down to prevent Miller from locking the door. Miller threatened to kill the hostage, and they released the handle of the door and stepped back. Miller than exited the bathroom with one arm around the hostage’s neck in a choking hold while holding the shank against her neck.  Employees’ attempts to verbally diffuse the situation failed, and Miller proceeded diagonally across the hallway and into the hostage’s unoccupied office. This office was at the end of a series of offices used by staff and measured 10 feet wide by 15 feet long with cinderblock walls 8 feet 7 inches from the floor to the acoustical paneled ceiling.  The door from the corridor had a 5 inch by 28 inch window and there were two 10 inch by 48 inch exterior windows.  

After forcing the counselor into the office, Miller closed and barricaded the door with filing cabinets and office furniture, and turned out the lights. He also tried to cover the narrow glass window in the door and the two narrow exterior glass windows with limited success, as some light was still able to get into the room.  Miller then pushed aside a large 2 foot by 4 foot ceiling tile next to the common wall adjoining the next office in an apparent effort to be able to watch the ceiling area and wall above the adjoining office.
 
The entire prison was locked down and all inmates secured.  Correctional Officers set up a perimeter around the office and began negotiations with Miller by talking through the closed and barricaded door. The Department of Correction’s Emergency Response Team (CERT) team was activated. Negotiations continued through the barricaded door for several hours.

Lt. Keith Hoffer, a 25-year correctional officer, was ordered to respond to the prison and was designated as the CERT team leader.  He was authorized to arm himself with a .40 caliber sidearm.

He was ordered to assess the barricaded situation, be available for any contingency and to take whatever action was necessary to protect the hostage, members of the negotiating team, himself and others from death or serious physical injury.

At approximately 4 p.m., Lt. Hoffer and two CERT team members discovered that the ceiling in the office adjacent to where Miller had barricaded himself and his hostage was not secured with wire mesh above the drop ceiling as in other areas of the prison and access could be gained from one to the other by scaling the common wall dividing the offices. The standard office drop ceilings and lighting were installed 8 feet 7 inches from the floor, with the common walls extending approximately 9 ½ feet above the floor, but not to the actual roof of the building (to allow for duct work).

Hoffer’s team gained access to the adjacent office and Hoffer was able to remove a tile from the ceiling abutting the common wall between that office and the office in which Miller was holding the hostage. Hoffer, standing atop the filing cabinets and with the assistance of a teammate, was able to see into the adjacent room through the opening where the ceiling tile in that office had been pushed aside. During a quick glance into the room, Hoffer observed Miller armed with the shank, pacing, but could not see the hostage. The office lights had been turned off by Miller, but there was sufficient ambient light coming in from the partially covered windows.

During this time Hoffer and his teammates were able to hear portions of the negotiations and conversations between Miller and the negotiators. Hoffer recalls Miller beginning to sound agitated. Shortly after 4:30 p.m., Miller became unusually quiet and he was not responding to the negotiating team. Hoffer again was boosted up so as to be able to look over the wall and down into the room and observed Miller in a position that indicated that he had just raped the counselor.

Lt. Hoffer again raised his head and arms up above the common wall and looked down into the room.  Miller apparently heard a sound and while shouting climbed up on boxes and cabinets alongside the common wall and lunged at Hoffer with the shank numerous times while telling him he would kill him. As Miller would stab, Hoffer would pull back. Hoffer and his teammates could hear the sound of the shank striking the wall as Miller was thrusting it at Hoffer. At this time, Hoffer could now see that the hostage had gotten across the room and was down on the floor between a desk and the wall farthest from Miller and Hoffer.

Unable to stab Hoffer, Miller turned the shank in his hand to an overhand stabbing position and in a profane manner stated he was going to kill the hostage. The victim began to scream as Miller turned and jumped from the cabinets and started quickly across the room toward the hostage with the shank raised over his head in a stabbing position. At this time, Hoffer, in fear that Miller would kill or cause extreme bodily harm to the counselor, fired two rounds from his .40 caliber handgun, one shot immediately after the other.  One of the bullets struck Miller in the back 5 ½ inches below the shoulder and 3 inches to the left of the back midline.  The bullet passed through the posterior ribs, the descending aorta, the lung and exited the chest.  The other bullet struck Miller in the upper flank area of the left buttocks 23 inches below the top of the shoulders and 9 ½ inches to the left of the back midline and imbedded in  the left side of the lumbar spine.  Immediately after the shots were fired, the CERT team members broke through the suspended ceiling and the team secured Miller.  It took the officers inside the scene several minutes to remove the barricades so that the door could be opened. 

The counselor was treated by EMS personnel and transported to the hospital.  Miller was pronounced dead at the scene and an autopsy was performed.  Delaware State Police personnel processed the scene, recovered the projectile that passed through Miller and Miller’s shank, and secured physical evidence of the rape. 

CONCLUSION

Pursuant to the provisions of Section 465 of Title 11 of the Delaware Code the use of deadly force for the protection of others is justifiable if the individual using such force believes that it is necessary to protect a third person or persons from threat of death or serious physical injury. Under Delaware law, it is Lt. Hoffer’s subjective state of mind that is of critical importance in determining whether his use of deadly force was justifiable in this case. The specific factual issue is whether he actually believed at the time he intentionally fired his weapon that such action was necessary to protect the counselor from death or serious physical injury.

Lt. Hoffer knew Miller was a convicted, violent, sexual predator had kidnapped the counselor at knifepoint, held her for hostage, threatened to kill her, terrorized her for several hours and finally raped her.  After trying to stab Lt. Hoffer a number of times and expressing intent to kill the hostage, when Miller advanced rapidly toward the counselor with the shank in an overhand stabbing position, Lt. Hoffer interceded and directed deadly force at Miller causing his death.

At the time Lt. Hoffer fired his weapon, he believed that inmate Miller was going to kill the hostage and that the use of deadly force was immediately necessary to prevent serious injury or death to the hostage-counselor. The investigation of the facts and circumstances of the shooting fully support the reasonableness of that belief. As a result, Lt. Hoffer’s use of deadly force was justifiable and is not subject to criminal prosecution under Delaware Law.

Based on the above investigation, the Office of the Attorney General concludes that the use of deadly force by Correctional Officer Lt. Keith Hoffer was justified as outlined in 11 Del. Code Section 465 and not subject to criminal prosecution.

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