FBI faults agents for violating policy in shootings

The FBI faulted agents in 2019 for misusing their guns in two separate shootings, each an exceedingly rare internal finding of violations of its lethal force policy, according to documents obtained by The New York Times.

One involved an agent in Arkansas who shot at — but missed — a suspect who was driving away to flee arrest. That agent resigned before he could receive a 55-day suspension without pay. The other incident involved an agent in California who fatally shot a family dog that he said bit him during a “family dispute” while he was off duty; he got a five-day suspension.

Although neither shooting, both of which took place in 2017, was a major imbroglio, their disclosure is notable. For many years, FBI agents almost never got in trouble for intentional shootings. The two episodes, detailed in records obtained via a Freedom of Information Act lawsuit, add to a small but growing pattern suggesting that is no longer quite so certain.

The rigor of the FBI's internal review process is important because local police often defer to the bureau to investigate shootings by its own agents. Under its deadly-force policy, agents are only permitted to fire their guns, outside of practice ranges, if they reasonably believe that the target poses an imminent danger of death or serious physical injury to someone.

The FBI press office did not comment. But Dana Boente, who was the FBI's general counsel from 2018 until he retired in 2020, said the bureau's decisions to deem the two shootings violations of its deadly force policy — “bad shoots” in agents' parlance — were significant.

“Any time you have a `bad shoot,' it's important for a lot of reasons,” said Boente, who noted that he was not involved in the reviews. “You don't want people who are reckless being agents. And you want to make sure you have a great review system that is fair and rigorous.”

The FBI's process routinely faults agents who were sloppy with their weapons and accidentally discharged them, records show. But faulting agents for intentionally shooting at people or animals has been very rare.

After a Justice Department task force in 1994 faulted the FBI for having cleared agents involved in a high-profile shooting during a 1992 standoff at the cabin of a far-right figure at Ruby Ridge, Idaho, the shooting review policy was revamped.

But in 2013, the Times reported that in at least 150 intentional shootings that killed or injured people and dating to at least 1993, the bureau had deemed agents to have complied with its deadly-force policy.

In a recent interview, the Justice Department's independent inspector general, Michael Horowitz, said that after the publication of the 2013 article, he created a process in which all law enforcement agencies in the Justice Department, including the FBI, must provide to his office their initial internal reports about shootings. His office then decides whether to conduct its own investigation.

The department inspector general's office, which first gained jurisdiction to investigate the FBI in 2001, had on occasion taken a look at a few shootings such as a 2005 incident in Puerto Rico that it scrutinized at the director's request. The new process escalated its attention to the FBI's internal shooting-review process.

In addition, since 2013, the Times has used FOIA to periodically obtain subsequent batches of shooting review reports. They have shown that since the FBI's system has come under greater scrutiny, reviews have started to more frequently — albeit still rarely — fault agents in intentional shootings.

In 2015, for example, the FBI faulted an agent in New York who, while off duty one night in 2012, had fired his gun from the second-story window of his house and wounded a man on the street who was trying to burglarize his car. And in 2016, the bureau faulted an agent in Baltimore who shot the tire of a fleeing suspect's car.

The latest tranche obtained by the Times covers reports from shooting reviews that were completed from about 2017 to 2021. The names of agents were redacted.

Those reports do not usually detail what punishment an agent received. But the tranche also included a short report compiled in 2020 that listed three precedents in which the bureau's Office of Professional Responsibility had handed down penalties for offenses involving misusing a firearm in an intentional shooting.

The first of those three was clearly the 2012 incident in Queens. (The Office of Professional Responsibility decided to fire that agent, Navin Kalicharan. His lawyer, Larry Berger, said his client is still trying to overturn the dismissal.)

The other two instances listed in the 2020 report, however, were not previously publicly known. Although the dates and locations were redacted, a person familiar with the matter, speaking on the condition of anonymity, provided information that made it possible to identify them.

The first incident took place Sept. 5, 2017, at a duplex in Riverside County, California, where an FBI agent lived. During a “family dispute,” the agent shot and killed “the family dog.”

The agent, who was arrested by the local sheriff's department, said that the dog had bitten him six weeks earlier during a previous family dispute, and that the dog had bitten him again and was showing continued aggression.

In issuing a punishment of five days without pay, the Office of Professional Responsibility listed mitigating factors: an excellent service record, cooperation by the agent, the previous biting incident and the agent's belief that shooting the dog would prevent further injury. It also listed aggravating ones: The agent had improperly stored his gun when he got home and fired his weapon while another person was extremely close by.

The second incident took place Oct. 15, 2017. Agents from the FBI's field office in Little Rock, Arkansas, had gone to a Fairfield Inn and Suites in Benton, Arkansas, for a law enforcement operation and decided to try to arrest a suspect who had gotten into his car. According to the report, they approached the car, drew their weapons and ordered the suspect to put up his hands.

But the suspect put his car into reverse, backing out swiftly and hitting an agent's arm with his sideview mirror. That agent fired three or four rounds as the moving vehicle trapped him next to an adjoining car, but missed the suspect. Those shots were deemed to comply with bureau policy.

But when the car began to drive away, a second agent fired another bullet at the suspect, also missing him. The agent later claimed he had thought the suspect posed an imminent danger to law enforcement officials in “adjacent parking lots” and to patrons at a nearby restaurant, but the bureau's shooting incident review group rejected that justification.

In both cases, prosecutors declined to bring charges.