Here to Read Press Release
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
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 medical
examiner'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.
At approximately 4:00 PM, 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 PM, 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
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.
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