Why the FBI Shouldn't Be Trusted to Investigate the Death of Ibragim Todashev

For at least 20 years, its inquiries have never found fault with a fatal shot taken by an agent.

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Almost a month ago, the FBI shot and killed a 27-year-old man, Ibragim Todashev, during an interview at his Orlando, Florida apartment. In the aftermath of the shooting, various law enforcement officials gave wildly conflicting accounts of what happened in the moments before his death: some said he was unarmed; others said he was armed, but those sources disagreed about the weapon. Did he reach for a gun? A samurai sword? A knife? A metal pole? A broomstick? Meanwhile, despite what appear to be several authorized leaks of information about the case -- the most prominent appeared in The New York Times -- "the FBI has refused to say if he was armed or to describe the violent confrontation they say led a Boston agent to kill him," Maria Sacchetti reports in the Boston Globe. "And the agency has barred the medical examiner's office from saying how many times he was shot." Her article goes on to note and document that the FBI's refusal to go on the record with details "contrasts sharply with past shootings involving agents."

Due to the unusual circumstances surrounding the shooting and the suspicious inconsistencies in accounts by law enforcement, the ACLU, the Counsel on American Islamic Relations, and various newspaper editorial boards have called for an independent investigation.

(I've done so as well.)

Implicit in those calls is a judgment that the FBI itself can't necessarily be trusted to conduct an impartial investigation of its own agents. That strikes me as common sense. The federal government itself sometimes launches independent investigations into local law enforcement shootings that seem suspicious. Police chiefs are sometimes reluctant to uncover wrongdoing in their ranks; other times, they do their best to be impartial, but find it understandably difficult to be appropriately skeptical of statements made by coworkers and friends they've grown to like. It is no slur against the FBI to suggest that independent investigators can sometimes do better. But a new article by Charlie Savage of The New York Times suggests there is good reason, even aside from general concerns about impartiality, to doubt the FBI's ability to investigate itself.

The article, "The FBI Deemed Agents Faultless in 150 Shootings," begins as follows:

After contradictory stories emerged about an F.B.I. agent's killing last month of a Chechen man in Orlando, Fla., who was being questioned over ties to the Boston Marathon bombing suspects, the bureau reassured the public that it would clear up the murky episode. "The F.B.I. takes very seriously any shooting incidents involving our agents, and as such we have an effective, time-tested process for addressing them internally," a bureau spokesman said.

But if such internal investigations are time-tested, their outcomes are also predictable: from 1993 to early 2011, F.B.I. agents fatally shot about 70 "subjects" and wounded about 80 others -- and every one of those episodes was deemed justified, according to interviews and internal F.B.I. records obtained by The New York Times through a Freedom of Information Act lawsuit. The last two years have followed the same pattern: an F.B.I. spokesman said that since 2011, there had been no findings of improper intentional shootings. In most of the shootings, the F.B.I.'s internal investigation was the only official inquiry.

For anyone who has pays attention to law enforcement at the state and local level, the notion that every fatal shooting dating back 20 years was justified defies credulity. Even excellent law enforcement officials make honest mistakes, and there's always a bad apple or two that acts recklessly. "Current and former F.B.I. officials defended the bureau's handling of shootings, arguing that the scant findings of improper behavior were attributable to several factors," Savage writes. "Agents tend to be older, more experienced and better trained than city police officers. And they generally are involved only in planned operations and tend to go in with 'overwhelming presence,' minimizing the chaos that can lead to shooting the wrong people, said Tim Murphy, a former deputy director... who conducted some investigations of shootings over his 23-year career."

It certainly makes sense that the FBI would outperform municipal police agencies. But 20 years without an unjustified fatal shooting? It's a figure that cries out for closer scrutiny of the process. Savage agreed. Though it is rare for anyone else to investigate FBI shootings, he managed to find and report out a nonfatal incident that raises serious questions about the bureau's credibility.

You'd think if any shooting would be ruled "unjustified" it would be a March 2002 incident when an innocent Maryland man was shot in the face by an FBI agent who mistook him for a bank robbery suspect:

In that episode, agents thought that the suspect would be riding in a car driven by his sister and wearing a white baseball cap. An innocent man, Joseph Schultz, then 20, happened to cross their path, wearing a white cap and being driven by his girlfriend. Moments after F.B.I. agents carrying rifles pulled their car over and surrounded it, Agent Christopher Braga shot Mr. Schultz in the jaw. He later underwent facial reconstruction surgery, and in 2007 the bureau paid $1.3 million to settle a lawsuit.

Innocent man shot. FBI pays him $1.3 million. What conclusion could be reached other than "unjustified shooting"?

The internal review, however, deemed it a good shoot. In the F.B.I.'s narrative, Agent Braga says that he shouted "show me your hands," but that Mr. Schultz instead reached toward his waist, so Agent Braga fired "to eliminate the threat." While one member of the review group said that "after reading the materials provided, he could not visualize the presence of 'imminent danger' to law enforcement officers," the rest of the group voted to find the shooting justified, citing the "totality of the circumstances surrounding the incident," including that it involved a "high-risk stop."

As dubious as that conclusion sounds, there's even more reason to doubt the impartiality of the review:

An Anne Arundel County police detective prepared an independent report about the episode, and a lawyer for Mr. Schultz, Arnold Weiner, conducted a further investigation for the lawsuit. Both raised several subtle but important differences. For example, the F.B.I. narrative describes a lengthy chase of Mr. Schultz's car after agents turned on their siren at an intersection, bolstering an impression that it was reasonable for Agent Braga to fear that Mr. Schultz was a dangerous fugitive. The narrative spends a full page describing this moment in great detail, saying that the car "rapidly accelerated" and that one agent shouted for it to stop "over and over again." It cites another agent as estimating that the car stopped "approximately 100 yards" from the intersection.

By contrast, the police report describes this moment in a short, skeptical paragraph. Noting that agents said they had thought the car was fleeing, it points out that the car "was, however, in a merge lane and would need to accelerate to enter traffic." Moreover, a crash reconstruction specialist hired for the lawsuit estimated that the car had reached a maximum speed of 12 miles per hour, and an F.B.I. sketch, obtained in the lawsuit, put broken glass from a car window 142 feet 8 inches from the intersection.

The factual discrepancies extend to what happened once the car pulled over:

The F.B.I. narrative does not cite Mr. Schultz's statement and omits that a crucial fact was disputed: how Mr. Schultz had moved in the car. In a 2003 sworn statement, Agent Braga said that Mr. Schultz "turned to his left, towards the middle of the car, and reached down." But Mr. Schultz insisted that he had instead reached toward the car door on his right because he had been listening to another agent who was simultaneously shouting "open the door."

A former F.B.I. agent, hired to write a report analyzing the episode for the plaintiffs, concluded that "no reasonable F.B.I. agent in Braga's position would reasonably have believed that deadly force was justified." He also noted pointedly that Agent Braga had been involved in a previous shooting episode in 2000 that he portrayed as questionable, although it had been found to be justified by the F.B.I.'s internal review process.

The shooting of Ibragim Todashev has spawned various conspiracy theories alleging that he was executed. These are especially prevalent among immigrants and foreigners from countries where federal law enforcement routinely transgresses against justice by killing suspects. There is no evidence that the FBI is corrupt in that way. But an independent investigation would diminish the valence of any conspiracy theory disproved by the facts, and bolster confidence in the ability and willingness of the U.S. government to impartially investigate itself.

More importantly, an impartial inquiry by an independent entity is desirable because, due to factors associated with this specific case, as well as doubts about the adequacy of FBI reviews generally, it is reasonable -- indeed it is prudent -- to distrust the bureau's ability to investigate itself. Why not order an independent investigation in a case where it's more likely to arrive at the truth, and would reassure the public that the FBI is really blameless if that turns out to be true?