A Review of the September 2005 Shooting Incident Involving
the Federal Bureau of Investigation and Filiberto Ojeda Ríos
Office of the Inspector General
After the emergency daylight assault failed to apprehend Ojeda, the FBI was confronted with the barricaded subject scenario it had sought to avoid. The Crisis Negotiation Unit (CNU) agents who typically are deployed with HRT as its crisis negotiators were not included in the CONOP for this mission. Instead, two San Juan FBI negotiators were assigned to the operation, and only one of them was sent to the scene to communicate with Ojeda following the failed assault. In this Chapter, the OIG assesses the FBI’s level of preparedness for the scenario that occurred here. This Chapter also assesses the conduct of the negotiations between the FBI and Ojeda, including the decision to reject Ojeda’s demand that a specific reporter be brought to the scene.
CNU Unit Chief Dennis told the OIG that when he learned on September 19, 2005, about the operation to apprehend Ojeda, he immediately contacted HRT Commander Craig to ask if he needed CNU to organize a full complement of negotiators to deploy with HRT. He said Craig told him it was unnecessary because the operation was primarily a reconnaissance and surveillance mission. Dennis told us that this was the first occasion in his experience that Craig declined to include CNU negotiators on an HRT deployment.103
Craig said that he told Dennis he did not believe negotiators were needed because the deployment was primarily a surveillance mission and he felt the chances of making a positive identification of Ojeda were remote. Craig was skeptical the mission would succeed in light of the difficult terrain around the residence, the presence of sympathizers in the neighborhood, and the fact that no one had seen Ojeda in at least 10 years. Craig told us that he expected a course of action would be drawn up for an arrest if HRT made a positive identification.
HRT Deputy Commander Steve also told us that he declined Dennis’s assistance because he did not believe there was sufficient information at the beginning of the operation to justify bringing CNU negotiators to Puerto Rico. He said HRT normally uses CNU negotiators when a barricaded subject scenario is anticipated from the beginning of the operation. He said he also knew that San Juan FBI had negotiators available if such a scenario arose and that CNU negotiators could be flown to the scene if necessary.
In our view, HRT should have deployed with a CNU crisis negotiation team to Puerto Rico. Craig’s statement that CNU negotiators were unnecessary because the operation was primarily a surveillance mission was inconsistent with the CONOP’s stated purpose of the mission – ‘[t]his CONOP supports the surveillance and arrest plan for the subject [Ojeda]” – and the fact that the CONOP included several arrest scenarios. Craig’s skepticism about the likelihood of success in identifying Ojeda, and belief that there would be an opportunity to send down negotiators if and when Ojeda was identified, also seemed inconsistent with the planning reflected in the CONOP. We believe Craig’s skepticism led to inadequate consideration of the possible scenarios that could result from any attempted arrest of Ojeda. One foreseeable scenario, given Ojeda’s history, was violent resistance and a potential standoff. The ability to timely deploy CNU negotiators to the scene is one important option for resolving such a situation.
Steve’s claim that HRT uses CNU only when a barricaded subject scenario is anticipated from the beginning of an operation is inconsistent with FBI guidelines. The FBI’s Manual of Investigation Operations and Guidelines (MIOG) states that negotiators should deploy with field office SWAT teams “if and when” the potential exists for the use of negotiation resources. MIOG, Part 2, Section 30-2.3. The FBI Critical Incident Handbook provides similar guidance: “Involve the [Crisis Negotiation Team] in the planning stages of a high-risk situation where negotiation may be required.” We did not find any FBI policies or regulations exempting HRT from these guidelines or establishing a different standard for it.
In this case, negotiation contingency planning was warranted under the MIOG and Critical Incident Handbook guidance. HRT recognized when drafting the CONOP that Ojeda likely would violently resist any attempted apprehension, that Ojeda had previously created a stand-off situation with HRT, and that HRT would be operating in a challenging environment where compromise and the loss of the element of surprise were distinct possibilities. A barricaded subject scenario, while undesirable to Fraticelli, certainly fell within the range of reasonable possibilities and should have merited contingency planning in HRT’s CONOP. In this scenario, the use of negotiators may have been required.
We also found unsatisfying Steve’s statement that he knew San Juan FBI negotiators would be available if the situation called for negotiations. Dennis told us that the San Juan FBI negotiators were relatively inexperienced and that he told at least Craig that he should not rely on inexperienced negotiators with a subject like Ojeda. We do not know if Steve was also told this, but if he was not, it merely highlights the point that negotiations contingency planning was an afterthought in the tactical planning of the operation.
Moreover, leaving the negotiations to San Juan FBI effectively removed negotiators from HRT’s tactical planning of the operation. The OIG’s experts believed this was a significant mistake. In their judgment, HRT should have brought its own negotiators and integrated them into the tactical operation. Because this was not done, there was no plan or even discussions regarding how the San Juan FBI negotiators would be used or how they would communicate with HRT. This scenario is incompatible with the FBI Critical Incident Handbook, which recommends that negotiators be involved in the planning stages of high-risk situations where negotiation may be required. The Handbook also states that “[n]egotiation and tactical strategies should complement/parallel each other. Utilize each in synchronization to affect the safest outcome as possible for law enforcement personnel.” HRT failed to follow this guidance in the planning for this operation.
In contrast to HRT, Fraticelli did consider the need for negotiators. He told us that even though he wanted to avoid a barricaded subject scenario, he recognized its possibility and therefore arranged for two negotiators to be available during the operation. Fraticelli’s decision adhered to the FBI regulations described above. The two negotiators assigned to the operation – SAs Larry and Rodger – deployed to the San Juan FBI Command Post near Aguadilla on September 21, where they were briefed on the mission. They also discussed with each other how they would handle various scenarios if called upon.
Fraticelli’s planning for negotiations fell short, however, in two important respects. First, we found no evidence that Larry or Rodger had any meaningful interaction with the HRT agents with whom they would be working if called to the scene. The negotiators simply were not part of any phase of HRT’s planning process.
Second, the negotiation component of the operation was not organized and did not function as FBI regulations provide. According to the FBI’s Crisis Management Program guidelines, a negotiation team deployed by a field office should have three negotiators: a primary, a coach, and a crisis negotiation coordinator. Dennis told us that the primary and the coach work together at the scene as a team during negotiations with the subject. The crisis negotiation coordinator is the advisor to the on-scene commander regarding negotiation-related matters and should be co-located with him to provide expert assessment and recommendations. As we discuss further in the next subsection, these negotiation team guidelines were not followed in this case: only Rodger was sent to the scene to conduct negotiations, and the San Juan FBI’s crisis negotiation coordinator was not at the Command Post during the operation and did not even arrive at the scene until after the shots from the perimeter were fired.
The FBI’s lack of negotiation preparedness described above was evident in the conduct of the negotiations with Ojeda. Even though we cannot determine whether these failings affected the operation’s outcome, we discuss them here as lessons learned so they are not repeated in future operations.
To begin with, the FBI failed to follow its own guidelines at the very outset by sending in only one negotiator to talk to Ojeda. Dennis told us that the FBI has a two-negotiator standard to account for the reality that even a well-trained primary negotiator will not always be able to think of everything that should or could be said to keep the subject engaged. Negotiations can be stressful and the primary negotiator must concentrate on listening and talking. The second negotiator – the coach – is there to keep the primary focused and provide suggestions about how to handle issues that arise during talks. The coach is also there to provide the primary updates on the crisis situation.
In this case, there were two unsuccessful efforts to get a second negotiator to the scene to assist Rodger. First, Rodger himself requested through an HRT agent with him in the storage shed that a second negotiator be sent to the location for support. Rodger told the OIG that he thought this would facilitate the negotiation process.104 Rodger said the HRT agent simply responded that he could not leave his post. The second effort was made by a San Juan FBI ASAC who is also a certified negotiator. He told us that the FBI normally requires the use of two negotiators and that he requested permission to join Rodger at the site when he learned Rodger had been escorted there. The ASAC said HRT refused his request based on safety considerations.105
The FBI’s lack of negotiations preparedness was also evident in two aspects of its response to Ojeda’s demand that a reporter be brought to the scene. First, Steve did not take any action when he learned of Ojeda’s demand and mention of surrender. As the operation’s tactical advisor to the SAC, we would have expected Steve, at a minimum, to discuss the possible avenue for surrender with Fraticelli. In our view, Steve’s silence on the subject highlighted the lack of coordination between the tactical and negotiation sides throughout the operation. Indeed, judged by Steve’s failure to confer with Fraticelli regarding Ojeda’s demand for a reporter, HRT appeared disengaged from the ongoing negotiations.
The second significant aspect of the FBI’s response to Ojeda’s demand was that Fraticelli immediately rejected it. Fraticelli said he made this decision as soon as Rodger called and told him about the demand. Fraticelli told Rodger to convey this decision to Ojeda and tell him to come out with his hands up.
According to Dennis, Fraticelli’s handling of Ojeda’s demand for a reporter was contrary to CNU training, which teaches that a negotiator should never reject a demand outright. Dennis told us that even if there is no intention to consider a subject’s demand, the negotiator should not communicate this fact to the subject because doing so can cause the subject to stop talking. Dennis also said it is important to keep all options available because a prolonged stand-off might at some point present an appropriate opportunity to use a third-party intermediary, such as a reporter, to resolve the situation.106
This is the type of expert guidance the crisis negotiations coordinator is expected to provide, and it is why the FBI Critical Incident Handbook recommends that the on-scene commander “consult with the crisis negotiation coordinator as to the status of negotiations, as well as the [crisis negotiation team’s] assessment and recommendations.” In this case, Fraticelli did not consult with his crisis negotiations coordinator, who was not even at the Command Post. The situation gave one of our experts the impression there was no plan to deal with Ojeda’s request; another felt Fraticelli should have called an expert for advice. We agree with these assessments and believe the preparation and handling of the negotiations was contrary to FBI policies and significantly flawed.
Although we are critical of certain aspects of the FBI’s preparation for and conduct of negotiations with Ojeda during the standoff, we cannot conclude that they affected the outcome. A Spanish-speaking negotiator was in fact sent to the scene and negotiated with Ojeda for over half an hour. Ojeda had reason to know that his peaceful surrender would be accepted, as evidenced by his wife’s safe surrender. We do not believe his decision to remain barricaded in his residence, much like he did in 1985 when he shot it out with HRT, was a consequence of the way the FBI’s negotiations were conducted.
There have been suggestions in the media that Ojeda would have surrendered if the FBI had acceded to his demand to bring a reporter to the scene. While we criticized Fraticelli for the process by which he rejected Ojeda’s demand, we could not find that the decision itself was improper, and we have no basis to conclude that better preparation or the use of more experienced negotiators would have resulted in a different outcome. The OIG’s experts agreed that using a third-party intermediary is a risky course of action, particularly where the subject has demonstrated a propensity for violence, and they did not find fault with Fraticelli’s decision to reject using one in this case.
Moreover, even if the FBI had acceded to Ojeda’s demand, it would have taken hours to bring the reporter to the scene and to prepare him. At 6:08 p.m., long before any reporter could have been brought to the scene, Ojeda was seen in the kitchen window with a weapon, and the fatal shot was fired. Ojeda presented a threat at that moment, and we cannot conclude that a different decision regarding the reporter would have likely altered the outcome.
We concluded that because a barricaded subject scenario was a reasonable possibility given the information available to HRT during its mission planning, HRT should have deployed with a crisis negotiation team from CIRG’s Crisis Negotiation Unit. This conclusion is consistent with the guidance provided in the FBI’s MIOG and the Critical Incident Handbook. We did not find Craig’s and Steve’s explanations for departing from this guidance persuasive.
We also concluded that although Fraticelli properly anticipated the need for negotiators, he inadequately implemented the negotiation component into the operation. The two negotiators used for the operation did not have any meaningful interaction with the HRT agents next to whom they would be working, and the San Juan FBI negotiation team was not organized and did not function as FBI regulations provide. The FBI failed to adhere to its two-negotiator standard by sending only Rodger to talk with Ojeda, a mistake compounded when two attempts to get a second negotiator to the scene were rebuffed. In addition, Fraticelli’s handling of Ojeda’s demand for a reporter was contrary to CNU training, a misstep that might have been avoided if the San Juan FBI crisis negotiation coordinator had been in the Command Post with Fraticelli to provide expert guidance.
We believe it is unlikely these mistakes would have occurred if HRT had deployed with a CNU negotiation team it has experience working with, or had at least coordinated its tactical planning with the San Juan FBI negotiation team. While we cannot conclude that the outcome would have changed if the negotiations had been handled differently, we believe this case demonstrates the importance of integrating negotiations contingency planning into the tactical planning of operations where the potential exists for the use of negotiators.
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