A Review of the September 2005 Shooting Incident Involving
the Federal Bureau of Investigation and Filiberto Ojeda Ríos
Office of the Inspector General
In this Chapter, the OIG analyzes the issue of whether the shots fired by the FBI agents during the Ojeda operation, including the one that struck Ojeda, were in compliance with the Department of Justice Deadly Force Policy. We also address related issues pertaining to the FBI agents’ discharge of weapons in this case.
We first describe the Deadly Force Policy. We then discuss our conclusions regarding whether the agents complied with the Policy in the course of firing over 100 rounds during the initial exchange of gunfire during the period from approximately 4:28 p.m. to 4:30 p.m. on September 23. We separately address whether the three rounds fired from the perimeter at approximately 6:08 p.m. that afternoon, including the shot that struck Ojeda, were in compliance with the Policy. Finally, we discuss the lack of a “standard load” or equivalent policy for assuring that agents can provide an accurate accounting for the number of rounds that they discharge during a shooting incident.
FBI agents are required to comply with the Department of Justice Deadly Force Policy in discharging their weapons during an arrest operation. The Deadly Force Policy, which is included in the FBI’s Manual of Investigative and Operational Guidelines (MIOG), Part 2, Section 12-2.1, states in relevant part:
Law enforcement officers of the Department of Justice may use deadly force only when necessary, that is, when the officer has a reasonable belief that the subject of such force poses an imminent danger of death or serious physical injury to the officer or to another person . . . . If feasible and to do so would not increase the danger to the officer or others, a verbal warning to submit to the authority of the officer shall be given prior to the use of deadly force.
The MIOG contains definitions of terms used in the Policy. In addition, the Department has issued an Instructional Outline to guide the interpretation of the Policy, together with scenarios illustrating various applications of the Policy. Complete copies of the Deadly Force Policy, Instructional Outline, and Scenarios are provided in Appendix B.
Among other definitions, the MIOG elaborates on the meaning of “imminent danger”:
“Imminent” does not mean “immediate” or “instantaneous,” but that an action is pending. Thus, a subject may pose an imminent danger even if he is not at that very moment pointing a weapon at the Agent. For example, imminent danger may exist if Agents have a probable cause to believe . . . [t]he subject possesses a weapon, or is attempting to gain access to a weapon, under circumstances indicating an intention to use it against Agents or others . . . .
The Instructional Outline also states that the Deadly Force Policy “shall not be construed to require Agents to assume unreasonable risks to themselves,” and that “[a]llowance must be made for the fact that Agents are often forced to make split-second decisions in circumstances that are tense, uncertain, and rapidly evolving.”
Section 30-3.8 of the FBI’s MIOG, Part 2, provides additional guidance to FBI agents regarding “fire discipline” in the application of deadly force. It states that a situation meeting the criteria set forth in the Deadly Force Policy
does not justify indiscriminate “area” type firing. All use of firepower must be preceded by the acquisition of a known hostile target. This does not preclude the directing of selective suppressive fire at a low visibility target (such as a window from which gunfire is emanating) to cover movement of personnel, rescue of wounded individuals, or evacuation of innocents.
MIOG, Part 2, Section 30-3.8(4).
In the sections below, we evaluate the FBI’s use of deadly force during the Ojeda arrest operation in reference to the standards set forth in the Deadly Force Policy and related provisions of the MIOG.
As noted above, the HRT agents fired approximately 104 rounds from their M4 carbines during the initial exchange of gunfire between approximately 4:28 p.m. and 4:30 p.m. The OIG concluded that the vast majority of these shots were fired in compliance with the Deadly Force Policy. However, the OIG concluded that if the three rounds fired through the front door of the Ojeda residence by an unidentified agent were fired intentionally, they were not fired in compliance with the Policy and did not reflect appropriate fire discipline.
In reaching the conclusion that most of the rounds were fired in compliance with the Deadly Force Policy, the OIG examined the preliminary question of how the exchange of gunfire began. At least nine agents who approached the house from the front yard and three sniper-observers positioned near the house told the OIG that they heard gunfire originating from inside the house before any FBI agents returned fire. Several agents stated that the firing from inside the house began even before the agents got off the vehicle. None of the agents reported that they thought that any FBI agent fired on Ojeda in the house before the agents were fired upon. According to the Puerto Rico Institute of Forensic Sciences, the forensic evidence did not permit a determination of who fired the first shot.
The OIG found no persuasive evidence that the FBI fired any shots at the residence until after Ojeda began firing on the agents. First, the emergency assault plan under which the agents were operating called for the agents to breach the residence at two points and to clear the house rapidly and arrest Ojeda. Firing on the residence before breaching it would have been inconsistent with this plan and could have disrupted the plan by slowing the agents’ advance and giving Ojeda further notice of their presence. It also would have been inconsistent with the explicit instruction given to the agents in advance of the operation to comply with the Deadly Force Policy.
Moreover, as the agents approached the house from the front yard they were in an extremely poor position to initiate a gunfire exchange. Because of the heavy vegetation obscuring their view of the front of the house, the fact that the doors and windows were elevated well above the level of the yard, and the darkened condition of the interior, the agents would not have had a clear target to shoot at. (See Figure 8.) In contrast, from Ojeda’s elevated position behind the window he would have had a clearer view of the agents as they got off the vehicle in the front yard in the daylight and ran up the cinder block steps toward the porch.
The only suggestion that the FBI fired at the residence before Ojeda opened fire was the allegation made by Rosado (Ojeda’s wife) in subsequent public speeches and media interviews that the FBI fired first. Rosado declined to be interviewed by the OIG for this investigation. The OIG concluded that it is possible that Rosado got the impression that the FBI opened fire first as the result of the detonation of a diversionary “flash bang” grenade by one of the sniper-observers at the moment the FBI vehicle pulled up to the house. As previously noted, the two FBI sniper-observers who were positioned near the Green/Black corner of the residence both told the OIG that one of them detonated a flash bang grenade near the house as a diversionary tactic moments before any gunfire was exchanged, and other agents confirmed hearing a flash bang. Rosado and Ojeda might have interpreted the sound of a flash bang as gunfire initiated by the FBI.78
The OIG’s experts agreed that the use of a flash bang outside the residence could have created the impression inside the residence that the FBI was firing on the house. The experts pointed out that using a flash bang outdoors to create a distraction is not nearly as effective as using it indoors, where the noise, pressure waves, and extremely bright light all work to the advantage of the arrest team. They felt that using a flash bang outdoors creates a firecracker effect and risks alerting the subject rather than distracting or confusing him. We concluded that the FBI should review the implications of this incident for the use of flash bangs in an outdoor environment and under circumstances in which their use could have the unintended effect of alerting the subject or being mistaken as the FBI opening fire on a subject before seeking his surrender.
It is also possible that the round fired by Scott at Ojeda’s dog as it ran toward the HRT agents might have been interpreted by Rosado as firing on the house. Gary said that the dog ran to the front of the house in response to the flash bang Gary threw at the Green/Black corner, before any gunfire had begun. If so, Scott’s shot at the dog would have occurred seconds after the flash bang and could have preceded the other shots in the exchange. We note, however, that Scott said he thought that firing from the house had already begun by the time he shot the dog.
Taking all of these factors into account, the OIG concluded that Ojeda opened fire on the approaching FBI agents before any agents discharged their weapons at him or at the residence.79 However, we found that Rosado and Ojeda might have erroneously perceived that the FBI initiated the gunfire.80
Once Ojeda began firing at the agents from the house, he clearly posed an imminent danger of death or serious physical injury to the agents, justifying their application of deadly force. The agent statements and the forensic evidence establish that the vast majority of .223 shots from FBI weapons were directed in two locations: into the hallway behind the wooden gate and into the kitchen window. Numerous agent statements and the forensic evidence confirm that Ojeda was firing his pistol at FBI agents from these two locations.
Don told the OIG that he fired approximately 28 shots, or one full magazine, through the wooden gate in an exchange with someone who was firing from inside the house. There were a large number of impacts found in the back and side walls of the narrow hallway behind the wooden gate that were consistent with Don’s statement. Both Frank and Don described seeing a pistol being “goose necked” out the kitchen door into the hallway, aimed toward agents outside the gate.
The forensic evidence confirms that Ojeda was firing at the agents from inside the hallway. This was the location from which Frank was shot and seriously wounded while attempting to breach the wooden gate. The Forensic Institute confirmed that the bullet that wounded Frank was fired from Ojeda’s gun. In addition, based on photographs and sketches of the scene provided by the Forensic Institute, we found that there were six impacts in the inside wall of the hallway near the gated door that could only have resulted from rounds fired toward the front of the house from inside the hallway. The FBI agents did not enter the hallway until long after the gunfight was over.
In light of this evidence, the OIG concluded that 28 rounds fired by Don down the hallway early in the gunfight were in response to shots from Ojeda originating from the hallway. Because there was gunfire from this area, Don had a reasonable belief that there was a subject located inside the hallway who posed an imminent danger of death or injury to Don and the other agents. Don’s shots into the hallway were consistent with the Deadly Force Policy. The OIG’s experts concurred with this conclusion.
According to the agent statements and the available forensic evidence, the vast majority of the remaining shots fired by the FBI agents were directed at the kitchen window. All of the agents who reported discharging their weapons described this window as a location from which the subject was firing. The agents reported gunfire originating from the window in both semi-automatic (single-shot) and automatic mode. The Puerto Rico Institute of Forensic Sciences was able to trace the trajectory of at least five shots from inside the kitchen that struck the lattice of the kitchen window. The Institute also confirmed that Ojeda’s pistol had been modified to permit it to be fired in either automatic or semi-automatic mode.
The shots fired from inside the kitchen window likely included several shots that struck FBI agents, including the shot that struck Frank in the back of the helmet, the shot that struck Brian in the side of his ballistic vest, and the shot that struck George in the battery pack of his helmet. The OIG concluded that the agents had a reasonable belief that the person inside the window posed an imminent danger of death or serious injury, and that the numerous rounds fired by the FBI agents at the person firing from the window were in compliance with the Deadly Force Policy.81
The Deadly Force Policy states that “[i]f feasible and to do so would not increase the danger to the officer or others, a verbal warning to submit to the authority of the officer shall be given prior to the use of deadly force.” The OIG concluded that it was not feasible for the FBI agents at the scene to give such a warning. This conclusion follows from our determination that Ojeda fired at the agents first. Once the agents realized they were under fire, they were justified in applying deadly force to address the threat, without pausing to warn Ojeda.
The OIG also considered whether the number of rounds fired into the narrow hallway or at the kitchen window during the gunfight by the agents as a group (approximately 100 rounds) and by Don in particular (over 50 rounds) violated FBI standards, described above, relating to appropriate fire discipline. According to the OIG’s experts, an M4 carbine can fire 50 rounds in semi-automatic mode in as little as 9 seconds. The experts did not find the volume of fire by Don or the agents as a group to be disproportionate to the threat or to reflect a lack of fire discipline. We also note that the Instructional Outline for the Deadly Force Policy states that:
When the circumstances justify the use of deadly force, Agents should continue its application until the imminent danger is ended through the surrender or physiological incapacitation of the subject(s).
This guidance informs our assessment of the volume of fire used by the agents in an effort to bring the threat posed by Ojeda firing at them at close range to a timely halt. Don and the other agents were permitted to continue applying force until Ojeda no longer posed a threat. They were not required to limit their shots in order to match the number of rounds fired by Ojeda.
Section 30-3.8 of the FBI’s MIOG, Part 2, states that “[a]ll use of firepower must be preceded by the acquisition of a known hostile target.” The experts also stressed that agents should be trained to fire only at an identified target posing the imminent threat of harm. They stated that suppressive fire at a general area does not satisfy this standard, particularly where the possibility of injury to innocent persons exists. This does not mean the subject must be identified visually, although several agents said they saw a gun in the window or in the narrow hallway. We found that the “target” requirement was satisfied with respect to the shots that the agents took into the hallway and into the kitchen window because there was no doubt that a threat was coming from those specific locations in the form of shooting from inside the house. In addition, the fact that the agents fired a large number of shots without hitting hit Ojeda reflected Ojeda’s superior position of cover and elevation and did not necessarily reflect indiscriminate targeting. We did not find a basis to conclude that any of the agents violated FBI requirements of fire discipline.
Although the OIG concluded that the vast majority of rounds fired by the agents during the initial exchange of gunfire were fired in compliance with the Deadly Force Policy and did not violate FBI standards for fire discipline, we did not reach the same conclusion with respect to three rounds fired by the FBI through the front door of the residence. Several agents told the FBI that they perceived that several shots came from inside the house through the front door during the initial exchange of gunfire, a perception that contributed to their belief that there was more than one weapon being fired inside the house. The Puerto Rico Institute of Forensic Sciences reported, however, that there were three holes in the front door and that all of them were made by shots from the outside. The estimated trajectory of these shots is shown in Figure 12. Each of these trajectories could be matched to a bullet impact found in the ceiling of the living room, behind the front door, as shown in Figure 13.
Because there were no bullets or bullet fragments found in the house that could be attributed to these particular holes and impacts, it was impossible to determine from the forensic evidence which of the FBI agents fired the three rounds through the front door. We interviewed all of the agents who recalled firing their weapons, and none reported having fired any rounds at or through the front door.
At the time of the OIG interviews of the HRT agents, the findings of the Puerto Rico Institute for Forensic Sciences regarding the shots through the door had not yet been provided to the OIG. Therefore, we did not explicitly ask each agent whether he fired any shots through the door. Several agents told us that they perceived rounds coming out of the door, which we have since interpreted as equivalent to a denial that these agents fired the shots. After receiving the information from the Institute, we sought follow-up interviews with agents Eric, Ken, and Doug, who did not mention any shots through the door during their original interviews and who, based on the descriptions they gave of their positions at the time they fired their weapons, might have been at the location near the bottom of the steps where these shots originated. As noted above, these agents declined to provide voluntary follow-up interviews.
We consulted with the OIG experts regarding these three shots. The experts stated that the three shots through the front door may not have been appropriate or in compliance with the Deadly Force Policy, because it is unclear what the agents could have been targeting in that location. One expert stated that these shots might have been the result of an “unintentional press” as the agent approached the house during the latter part of an intense gunfight, and that the agent might not even have known that he fired his weapon at the time. However, the experts pointed out that it was not known whether other people were in the house or whether Rosado was involved in the gunfight, so that untargeted shots through the door created a danger of injury to innocent occupants. The Deadly Force Policy states that “[e]ven when deadly force is permissible, Agents should assess whether its use creates a danger to third parties that outweighs the likely benefits to its use.”
The OIG concluded that if these three rounds were fired intentionally, they violated the Deadly Force Policy and the fire discipline requirements of the MIOG. There is no evidence, in the form of witness statements or the forensic evidence, to suggest that these three shots addressed an imminent threat of death or injury posed by a person located behind the door. There is also no evidence to suggest that these shots were “preceded by the acquisition of a known hostile target” behind the door. Based on the trajectory of the shots, as shown in Figure 12, the OIG concluded that these shots were not aimed at the kitchen window or inside the gated doorway, the locations from which Ojeda fired.
If the shots were unintentional they would not normally be analyzed in terms of the Deadly Force Policy. Instead, the FBI would evaluate whether the agent was negligent in firing the accidental shots. However, we do not have sufficient information regarding the circumstances under which these shots were fired to make a determination as to whether the shots were intentional or unintentional or whether the agent or agents were negligent in firing the shots.
Because we cannot identify the agent or agents who fired these three shots, and cannot determine whether they were intentionally fired or the result of an unintentional press, the OIG has not recommended any disciplinary action with respect to these three shots. However, we recommend that after the conclusion of any criminal investigations into this matter – by either Department of Justice prosecutors or the Puerto Rico law enforcement authorities – the FBI should consider compelling the agents to provide follow-up interviews and determine who fired the shots through the front door, and their stated reason for doing so. Depending on the result of such an inquiry, disciplinary action could be warranted.82
The OIG also assessed the three shots that SA Brian fired into the kitchen window at approximately 6:08 p.m. (the “perimeter shots”). One of these shots struck Ojeda and resulted in his death. These shots were not part of the original exchange of fire but rather took place approximately 100 minutes later.
The OIG concluded that at the moment Brian fired the perimeter shots, he had a reasonable belief that Ojeda posed an imminent danger of death or serious injury to Brian and to other agents. We concluded that that these shots therefore did not violate the Deadly Force Policy. The OIG’s experts concurred with these conclusions.
In evaluating Brian’s assessment of the threat that Ojeda posed, we considered all of the events preceding the shots. Ojeda had already fired several rounds out the kitchen window, and had evidenced an intention to kill or injure the FBI agents attempting to arrest him. He had already shot three different agents. Brian was in an exposed position because the retaining wall that he was crouched behind was quite low and Brian’s head and shoulders were above the wall. Ken was in a similar exposed position to Brian’s left. Other FBI agents were also in exposed positions crouched behind the low concrete wall in front of the house.
In light of Ojeda’s conduct, Ojeda posed a continuing imminent threat to the agents throughout the standoff. Ojeda had already proved that he was armed and prepared to kill or injure the arresting agents. He had not surrendered his weapon or manifested an intent to do so. Brian was justified in assuming that Ojeda was still armed and dangerous. Put into the terms of the definition of “imminent danger” in the FBI’s MIOG, throughout the standoff Brian had probable cause to believe that Ojeda possessed the weapon and that the circumstances indicated an intention to use it against the agents. See MIOG, Part 2, Section 12-2.1(3).
Brian told the OIG that he saw an individual in the kitchen window, illuminated by the interior light of the refrigerator. Brian stated that the individual was crouched down with a gun in his left hand pointing out the window. Brian said he could not see the Ojeda’s eyes or tell where he was looking. Brian stated that Ojeda clearly had the weapon pointed in the direction of Brian and his teammates but he was unsure at whom in particular the subject was sighting the gun. Brian said that he concluded that Ojeda posed an imminent threat to him and other agents. Brian said he sighted his carbine where he believed the Ojeda’s center mass to be and fired three rounds in rapid succession in single fire mode.
The statements of the other HRT agents are consistent with what Brian told us about his position at the moment of the perimeter shots – that he was on the hillside to the right of the house, behind the retaining wall. (See Figure 9.) No other HRT agent was in a position to see Ojeda in the window or to confirm or dispute what Brian saw at the moment he fired.
However, we reviewed the available forensic evidence to determine whether it was consistent with Brian’s statement. The most significant forensic finding was the discovery of Ojeda’s Browning 9 mm pistol on the floor at his side, loaded and cocked, confirming that Ojeda was holding the gun at the moment he was wounded.83
The Puerto Rico Institute of Forensic Sciences concluded, on the basis of its trajectory and shooting reconstruction analyses, without knowing the content of Brian’s statement, that the fatal round was one of three rounds fired from a location behind the retaining wall approximately 19 feet from the subject. According to the Institute, all three rounds entered the left side of the refrigerator (the side facing the kitchen window) and all three exited the front of the refrigerator. Two of the shots left impacts in the house, while the third struck Ojeda. These findings were consistent with Brian’s description of his location when he fired the perimeter shots.
Ojeda’s wound did not contradict Brian’s description of what he saw and his determination that Ojeda posed a threat. The autopsy report and photographs establish that the bullet entered Ojeda’s body near his right clavicle and exited the middle of his back, also on his right side. The trajectory of the bullet wound thus establishes that Ojeda was facing toward Brian at the moment of impact – that his shoulders were rotated to the left relative to the kitchen window. In that stance, Ojeda could have very quickly fired out the window at Brian on the hillside.
The forensic evidence indicates that Brian’s view of the right side of Ojeda’s body was obscured by the refrigerator at the moment of impact, because the fatal shot passed through the side of the refrigerator and exited the front before it struck Ojeda near the right clavicle. We did not find this fact to be inconsistent with Brian’s statement. Brian stated that from his position on the hillside he saw the side of a light colored refrigerator inside the window, and that the refrigerator took up about half of his field of view inside the window.84 It is not surprising, therefore, that Brian’s view of Ojeda was partially obscured by the refrigerator. Brian said that after the refrigerator light came on he sighted his gun where he “believed the subject’s center mass to be.” Brian could have aimed at Ojeda’s “center mass” through the refrigerator.
The fact that Brian’s view of Ojeda was partially obscured at the moment of impact does not mean that Brian did not see him. Taking into account the trajectory of the shot that struck Ojeda (including the location of the bullet holes in the refrigerator) and the fact that Ojeda was turned toward Brian’s direction rather than facing directly forward, we determined that the left side of Ojeda’s body, including his left hand, could have been visible to Brian at or immediately before the moment of impact.85
Moreover, Brian stated that about three seconds elapsed between the time he saw the refrigerator light come on and the time he fired his weapon. Even if Brian’s view of Ojeda was unobscured at the moment the light came on, three seconds would have provided Ojeda with ample time to move to his right behind the refrigerator, which would have been a logical reaction if Ojeda had spotted Brian and realized that he had been illuminated.86 Brian stated that, given the three-second interval and the fact that the window was dark after he fired the rounds, Ojeda may have been closing the door when Brian was firing.87 Scientists from the Puerto Rico Institute for Forensic Science told the OIG that the trajectory evidence was consistent with Ojeda moving to his right at the moment of impact, and that such movement would explain why only one of the three perimeter shots struck Ojeda.
We also found it significant that, without having seen the autopsy report or photographs, Brian stated that Ojeda was crouching at the moment Brian saw him. Dr. Rechani, the Director of the Institute, told the OIG that Ojeda was crouching at the moment the bullet struck him. A crouching posture would explain the trajectory of the wound, which indicated that the bullet entered near the clavicle but exited in the lower back.
We also considered the potential inconsistency between Brian’s statement that he saw Ojeda holding the gun in his left hand and the fact that Ojeda was wearing a holster that was oriented for a right-hand draw. This holster is evidence that Ojeda’s dominant or preferred shooting hand was his right hand. From press accounts and information provided by the Forensic Institute, however, there is second-hand evidence that Ojeda was left-handed. Moreover, when Ojeda “goose-necked” the pistol out the kitchen door and down the hallway, he most likely used his left hand, which would have maximized his ability to keep his body inside the kitchen and out of the line of Don’s shots down the hallway. It therefore appears that Ojeda sometimes shot with his left hand, even if his dominant shooting hand was his right hand. Finally, the logical way for Ojeda to open the refrigerator door (which opened from left to right) while being concerned about the FBI agents out the kitchen window to his left, was to open the unit with his right hand, while holding the gun in his left hand. Thus, even if Ojeda was generally a right-handed shooter, this does not mean he would not hold the gun in his left hand. We therefore concluded that the orientation of the holster did not contradict Brian’s statement that he saw Ojeda holding the gun in his left hand.
We also considered whether it was reasonable for Brian to conclude that Ojeda posed an imminent danger at the moment Brian saw him. We recognize that Ojeda may have been looking for something to drink or eat when he opened the refrigerator door. However, this did not mean that the threat he presented was not imminent. Ojeda had his gun in his hand, and he could have fired at Brian and possibly Ken from his position very quickly. He also could have fired at the agents behind the wall in the front of the house from the window merely by moving slightly to his left.
We also considered the fact that Ojeda had engaged in a dialogue with FBI agents after the initial exchange of gunfire, and that Ojeda had stated he would discuss surrender if the FBI brought a particular reporter to the scene. Brian told us he had heard a discussion in Spanish between Ojeda and a San Juan agent while Brian was moving into position on the hillside, but Brian said he never heard anyone say that Ojeda was discussing the possibility of surrender. Brian and other witnesses also said these discussions seemed to have come to an end before the perimeter shots were taken.
We concluded that the discussions between Ojeda and the FBI did not mitigate the threat that Ojeda presented at the moment Brian fired. Ojeda had refused the FBI’s instructions to come out of the house. He appeared at the kitchen window with a gun. Even if Brian had understood Ojeda’s offer to discuss surrender if a reporter were brought to the scene, Brian would have been justified in believing that Ojeda could resume firing at the FBI agents at any instant. Given these circumstances, under the DOJ Deadly Force Policy, Brian was justified in using deadly force to address the threat.
For all of these reasons, the OIG concluded that the three perimeter shots fired by Brian at Ojeda at approximately 6:08 p.m. did not violate the Department of Justice Deadly Force Policy. The OIG’s experts concurred with this conclusion.
In the course of interviewing the HRT agents who discharged their firearms, the OIG learned that there is no “standard load” required for HRT weapons that would have permitted the FBI to establish precisely how many rounds had been fired from each weapon by determining how many magazines had been spent and how many rounds were left in the unspent magazines. As a result, the OIG attempted to reconstruct the number of rounds fired by each agent by relying on the agent’s recollection and on the ability of the Puerto Rico Institute of Forensic Sciences to correctly match each spent .223 shell found at the scene to a particular HRT weapon.
As summarized above in Table 1, there were some differences between the findings of the Forensic Institute and the recollections of individual agents as to the number of rounds fired by each agent. For the most part, these discrepancies were minor and could be attributed to the imperfect recollection of agents who had experienced an intense gunfight, during which one FBI agent was seriously wounded, two other agents were hit, and Ojeda was killed. It may be the case that the forensic evidence provided more objective and reliable evidence than agent recollections as to the precise number of rounds fired by each weapon, but the reliability of the forensic evidence depended on the recovery of all spent shell casings by the evidence response team. In the rugged landscape surrounding Ojeda’s residence, there can be no certainty that every casing was recovered.
In this case, the forensic evidence was consistent with the agent statements in most significant respects, and the minor discrepancies between agent recollections and the forensic evidence did not affect the OIG’s central findings with respect to the Deadly Force Policy. However, if “standard load” procedures were in place, there would have been additional, reliable evidence regarding the number of rounds fired by each agent. This information might have assisted in determining whether any agents fired rounds that they did not realize they fired, due to an “unintentional press” in the heat of battle. Such information would also have been made it easier and faster for investigators to determine that two rounds had been fired from SA George’s weapon, as described in footnote 66. Moreover, in other cases a precise accounting of how many rounds were fired by each agent could be critical to a shooting incident investigation.
Accordingly, the OIG recommends that the HRT adopt a standard load procedure that would enable accurate post-incident accounting of the number of rounds fired by each agent, and that other components of the FBI adopt such procedures to the extent they are not already in place. The experts consulted by the OIG concurred with this recommendation.
For the reasons stated in this Chapter, the OIG concluded that the vast majority of the rounds fired by the FBI during the initial exchange of fire were in compliance with the Deadly Force Policy and related requirements of fire discipline. We also concluded that the three rounds fired from the perimeter later in the afternoon, including the shot that killed Ojeda, were in compliance with the Policy.
We did not reach the same conclusion regarding three rounds fired through the front door, however. No agent has admitted firing these rounds, and we have insufficient evidence to attribute the rounds to a particular agent. If the rounds were fired intentionally, they were not in compliance with the Deadly Force Policy. Even if fired accidentally, they could have been the result of negligence.
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