A Review of the September 2005 Shooting Incident Involving
the Federal Bureau of Investigation and Filiberto Ojeda Ríos

August 2006
Office of the Inspector General

Chapter Eleven:

After an intensive investigative effort, the San Juan FBI located Ojeda’s residence on a rural hillside near Hormigueros, Puerto Rico. An HRT sniper-observer team from Quantico, Virginia, conducted surveillance on the residence and confirmed Ojeda’s presence. The FBI began planning for a surreptitious arrest operation to take place during the pre-dawn hours of September 24. However, the HRT sniper-observer team reported on the afternoon of September 23 that their presence had been detected by several persons who stopped a vehicle near Ojeda’s residence and began speaking in Spanish. A sniper-observer saw one of these individuals gesture with his hands and point at the ground and toward the trailhead that led to the location of the sniper-observer team. Approximately two hours later, because of the belief that its agents’ presence was compromised, the FBI conducted an emergency daylight assault on Ojeda’s residence by dropping the arrest team from helicopters near the residence and conducting an emergency assault up the front steps of the house in an attempt to arrest Ojeda.

Ojeda was prepared for the assault and fired on the agents as they approached the residence. The FBI returned fire. Ojeda shot three agents during the gunfight, wounding one of them seriously. A standoff ensued, and subsequently Ojeda’s wife came out of the residence. An FBI negotiator called out to Ojeda, but Ojeda responded that he would not negotiate unless a particular reporter was brought to the scene.

Approximately 100 minutes after the initial assault, an HRT agent saw Ojeda in the kitchen window when he was illuminated by a refrigerator light. The HRT agent observed Ojeda holding a gun and fired at Ojeda three times. Agents heard Ojeda cry out and fall. The agents at the scene began preparing to enter the residence and cut the electricity as darkness approached. However, FBI Headquarters assumed command of the entry decision at approximately 8:05 p.m., and subsequently ordered the agents at the scene not to enter the residence that evening. Instead, the FBI sent another HRT team to Puerto Rico, and this new team entered the residence the next day at approximately 12:34 p.m., 18 hours after Ojeda was shot. They discovered Ojeda on the floor of the residence, dead from a gunshot wound.

Our review evaluated the arrest operation and several issues relating to it. First, we examined whether the HRT agents’ use of deadly force during the gunfight with Ojeda violated the DOJ Deadly Force Policy. We concluded that it did not. We determined that Ojeda opened fire on the FBI agents as they attempted to approach and enter the residence before any agents discharged their weapons at him or at the residence. Once Ojeda began firing, and then continued firing when the agents were on or below the porch, he clearly posed an imminent threat to the agents, justifying their application of deadly force.

We concluded that the three shots fired by the HRT agent at Ojeda through the kitchen window, one of which struck Ojeda and caused his death, did not violate the Deadly Force Policy. At the moment the agent fired these shots, he had a reasonable belief that Ojeda posed an imminent danger of death or serious injury to himself or to other agents.

The exceptions to our conclusions regarding the Deadly Force Policy concern the three rounds fired by an unidentified FBI agent or agents through the front door of the residence and two unreported rounds fired from SA George’s weapon. Because we were unable to conduct follow-up interviews concerning these shots, we were unable to determine whether they were fired in compliance with the Deadly Force Policy.

We also examined the FBI’s decisions to delay entry into the residence until 18 hours after Ojeda was believed shot. We assessed separately the entry decisions made before and after FBI Headquarters required CTD approval for any entry plan. We concluded that the decisions were motivated by considerations of agent safety and not by a desire to deny medical care to Ojeda. The FBI managers in Puerto Rico who made the decision were not certain that Ojeda had been incapacitated and, based on the information they had been provided, were legitimately concerned there was an additional armed subject in the residence. As a result, the cautious, deliberate approach taken by the FBI in response to these potential threats was reasonable.

We also found that the decision made by officials at FBI Headquarters to delay the entry until the next day reflected a good-faith balancing of the information known to them concerning these threats, although we determined that the officials’ perception of the threats differed significantly from the perception of the agents at the scene.

Other aspects of the operation that we examined included the assault on the residence and the FBI’s negotiations with Ojeda. We found problems in the decision-making in both areas and concluded that these decisions suffered from a common deficiency: an inadequate consideration of and preparation for a foreseeable barricaded subject because it was an undesirable scenario. We found that this mindset adversely affected critical decision-making relating to tactics and contingency planning. These findings figured prominently in our recommendations that FBI managers should prepare for foreseeable contingencies, including whether an arrest operation likely could result in a scenario requiring negotiations.

We also examined in this review several of the criticisms of the FBI operation made by members of the public, the media, and elected officials of Puerto Rico. For example, some people alleged that the FBI intentionally conducted the arrest operation on El Grito de Lares (September 23) to intimidate supporters of Puerto Rican independence. We found no support for his allegation. We determined that the FBI actually planned to arrest Ojeda early on September 24, and conducted the emergency assault on September 23 only because of the reported compromise of the sniper-observers.

In addition, we examined the criticism that the FBI failed to notify Puerto Rico government officials in advance of the operation and inadequately communicated with them during the operation. We determined that the FBI made the decision not to notify Puerto Rico officials of the operation because of concerns about leaks that could compromise the operation, which was a reasonable consideration under the circumstances. However, we concluded that the explanations the FBI provided local officials for delaying entry after Ojeda was shot failed to include important details – such as the perceived threat to the entry team and the exigent nature of the assault – that would have given the Puerto Rico officials a greater understanding of the circumstances surrounding the decision not to enter the residence until the next day.

We evaluated whether any of the actions taken by FBI personnel constituted misconduct warranting disciplinary action. We concluded that they did not. However, we were critical of SAC Fraticelli’s and Deputy HRT Commander Steve’s decision-making regarding the emergency assault. We also questioned their, and HRT Commander Craig’s, reasoning regarding the preparations for and conduct of the negotiations. In making these criticisms, we were mindful of the fact these managers had to make decisions based on imperfect or incomplete information. This was particularly the case after the reported compromise of the sniper-observers, when the circumstances were tense and rapidly evolving, and the managers had limited time for reflection and consultation. Nevertheless, we found several of their decisions deficient because they reflected an inadequate assessment of the known circumstances, or were either contrary to or inconsistent with applicable FBI guidelines. For these reasons, we highlighted several of their decisions as performance issues we believe the FBI should examine.

In this report, we make ten systemic recommendations relating to problems we found in the Ojeda arrest operation. Our systemic recommendations are intended to improve the planning and conduct of future FBI arrest operations. We believe that, if implemented, they may help the FBI avoid some of the problems that occurred in the Ojeda arrest operation.

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