FBI not conducting civil rights investigation into ICE shooting in Maine despite questions about use of force, sources say

The FBI is not conducting a civil rights investigation into the shooting death of a Colombian man in Maine who was killed by a federal immigration officer in July, several sources told CBS News, though the shooting took place under circumstances that have raised questions about the use of force.

The deadly encounter between an ICE officer and Johan Sebastián Durán Guerrero on July 13 in Biddeford, Maine, is the latest in a growing string of clashes between civilians and ICE agents as they carry out immigration enforcement surges across the country. 

Other shootings involving federal immigration officers that have garnered national attention include the killings of Renee Good and Alex Pretti in Minneapolis, and the shooting death of Lorenzo Salgado Araujo in Houston.

In the Maine incident, the Department of Homeland Security has said that the agent discharged his weapon because he feared for “public safety” after Guerrero allegedly tried to flee in his vehicle from the officers. 

The shooting was captured on surveillance videos in the Biddeford neighborhood, and a witness told CBS News he heard Guerrero say “I tried to stop” as he was pulled from the car. 

Border czar Tom Homan has also since publicly acknowledged the agent may not have been properly vetted, after the Associated Press revealed his identity and reported he has a history of abusive and violent behavior.

Maine shooting investigation

Given the high-profile nature of the shooting, which was widely covered by news outlets, and the questions surrounding the officer’s decision to open fire multiple times, civil rights legal experts say the FBI and the Civil Rights Division would usually take the lead on conducting a criminal civil rights investigation in a case like this one.

“I would expect that if things were operating as they traditionally have, that this would be a case where the FBI would be investigating,” said Sam Trepel, a former federal civil rights prosecutor who is now the Rule of Law Program Director at States United Democracy Center. “The FBI is the federal agency that has the most experience and the most expertise in investigating potential civil rights violations, which would include deadly shootings by federal agents.”

A spokesperson for the FBI Boston field office, which has jurisdiction over criminal investigations in Maine, referred all questions to the DHS inspector general’s office and the Maine attorney general’s office.

When the shooting occurred, the FBI initially responded to the scene to investigate it as a possible assault on a federal officer case. Lawmakers at the time, including Senators Susan Collins and Angus King of Maine, issued statements saying they understood the FBI was investigating and urged the bureau to cooperate with state and local authorities.

But in a statement to CBS News, a Justice Department official clarified that since then, the DHS Office of the Inspector General and the Maine attorney general’s office are leading the investigation.

“Per any officer-involved-shooting, DHS IG took the lead, and FBI would offer assistance,” the official said.

“Should evidence present itself during the course of an investigation, DOJ will evaluate and act accordingly. The U.S. takes seriously any referral of a civil rights violation, and we will work with law enforcement and OIGs to properly and fully review credible allegations of violations of civil rights law,” the official added.

A spokesperson for the Maine attorney general’s office declined to comment, saying the office had no information about investigations by other agencies.

The Maine attorney general’s office, which is also investigating the shooting, interviewed Guerrero’s partner and the mother of their young daughter, Karolina Rojas Alvarez, about a week after the July 13 incident, according to her attorney Ben Gideon.

Gideon added that no one from the FBI, DHS or any other federal government agency has contacted him or his client to date. “I’m not aware of the FBI or any federal agency having boots on the ground in Maine to conduct any investigation into this matter whatsoever,” he added.

A Justice Department spokesperson said, “DHS is taking the lead on finding the facts of what happened here, and the department will respond to the circumstances as facts develop as part of DHS investigation. And FBI will of course support DHS in any way necessary to finding out the facts of this incident.”

DHS is able to lead an incident investigation through one or a combination of several of its offices, depending on the purpose of the investigation. Its Office of the Inspector General can investigate criminal or administrative misconduct by DHS employees. Its Office of Professional Responsibility can conduct an internal employee misconduct and policy investigation. Homeland Security Investigations can investigate an alleged assault on ICE officers or other federal crimes.

But only the FBI’s civil rights agents would ordinarily investigate whether a federal officer violated §242, depriving individuals of their constitutional rights.

According to DHS, Guerrero was not the intended target of the operation, though his vehicle had four visible bullet holes in the driver’s side of the windshield.

Law enforcement sources confirmed to CBS News that ICE officers were not wearing body cameras at the time of his death, and subsequently, ICE required at least one activated body camera during vehicle stops. DHS’ public explanation does not specify exactly whom the officer believed Guerrero was endangering or how.

A DHS OIG spokesperson declined to confirm the existence of an investigation, but said investigating DHS officer-involved shootings is part of its normal practice.

“DHS OIG routinely reviews allegations involving DHS employees or contractors who, while acting under color of their official authority, are alleged to have deprived an individual of any Constitutional right or liberty,” a spokesperson said.

A spokesperson for DHS referred all questions about the investigation to the FBI.

It is customary for the DHS inspector general’s office to review use of force cases involving agency personnel. It has the authority to conduct both criminal and administrative investigations and it can make referrals to U.S. attorney offices. 

Recently, it helped investigate a criminal case in the Western District of Texas against a Customs and Border Protection agent indicted in July for allegedly using unreasonable force when he put someone into a choke hold during an August 2021 incident.

But that case was also investigated by the FBI, in addition to the inspector general’s office and the CBP Office of Professional Responsibility.

This is not the first time the FBI has been absent from investigating a high-profile ICE related shooting that has raised questions about whether the victims’ civil rights were violated.

After Renee Good was shot and killed by ICE officer Jonathan Ross in January, the Civil Rights Division was ordered to stand down from assigning prosecutors to help investigate. 

The FBI, meanwhile, was ordered to treat the investigation as an assault on a federal officer case, rather than a civil rights case, prompting local prosecutors and an FBI official to resign in protest.

That same month, two CBP officers shot and killed Alex Pretti. Initially, DHS took the lead in investigating the case, as then-DHS Secretary Kristi Noem publicly accused Pretti of “domestic terrorism.” 

After a public outcry, Acting Attorney General Todd Blanche agreed to open a criminal civil rights inquiry into Pretti’s death. That investigation remains ongoing.

The FBI doesn’t investigate every officer-involved shooting, but has historically become involved in cases where the shooting results in death and the incident receives national attention.

Under the Justice Department manual, the ICE shooting case in Maine would likely be deemed to be a matter in the national public interest because it involves allegations of a color-of-law violation — one that involves a government official acting in an official capacity — that resulted in death.

Such a designation typically leads the Civil Rights Division’s criminal section to take a more direct role in managing the case and coordinating with the local U.S. attorney’s office. In such cases, the FBI typically conducts the investigation, and the bureau has squads that are specialized to handle civil rights criminal cases.

Although such investigations often do not necessarily lead to criminal charges, the threshold for opening a case is relatively low.

“In any universe that I ever operated in before now, something that is this high of a profile where there is a clear public concern around what happened, the Civil Rights Division and the FBI would be the lead of it,” said Kristy Parker, a former deputy chief in the Civil Rights criminal section who is now counsel at Protect Democracy, a nonprofit anti-authoritarian group.

The Civil Rights Division’s criminal section has handled some of the nation’s most high-profile color-of-law cases involving excessive force by police. 

Those include the killing of George Floyd by Minneapolis Police officers and the prosecution of the Louisville Police officers involved in Breonna Taylor’s shooting death.

Trepel said the FBI’s absence from the investigation in Maine is “detrimental to public trust” and “very concerning because it says that maybe this review will not be as comprehensive or independent as it has been in the past, and that federal officers won’t be held accountable for their actions.”