This story has been updated significantly since it was first published.
Sixth Judicial District Prosecuting Attorney Will Jones said Friday afternoon that a federal agent’s fatal shooting of Little Rock airport director Bryan Malinowski on March 19 was justified under state law.
The Bureau of Alcohol, Tobacco, Firearms and Explosives agent who shot Malinowski in a pre-dawn raid on his West Little Rock home “had a reasonable belief that deadly force was necessary to defend himself” and another agent, Jones said. The ATF has said since March that Malinowski shot at agents first, and Jones’ brief letter confirms that narrative. But it also shows how quickly events moved that morning: About 46 seconds elapsed between the time officers first announced their presence and the moment an agent shot Malinowski in the head.
Malinowski, 53, seemed an unlikely target for an ATF raid: The head of the Bill and Hillary Clinton National Airport, he was the highest paid employee on the Little Rock city payroll. An ATF affidavit unsealed shortly after his death in March said he was also acting as an unlicensed firearms dealer. Malinowski bought almost 150 guns over the past three years, the document said, some of which were apparently sold to people not legally allowed to buy them.
In the months since his death, the ATF has faced mounting questions from Republican lawmakers and others over how the raid was conducted and why ATF agents weren’t wearing body cameras as required by policy. (The ATF’s director has said the field office responsible for Arkansas has yet to implement the body camera policy, in part due to budget cuts.) The Malinowski raid was the subject of congressional hearings last month in which many Republicans, led by hard-right House Judiciary Chair Jim Jordan of Ohio, painted Malinowski as the victim of ATF overreach.
After the shooting, the Arkansas State Police conducted an investigation. In April, state police turned over the case file to Jones, the prosecutor for Pulaski County, to make a determination about whether the shooting was justified.
Here’s the 3-page letter from Jones, which includes the most detailed timeline of the events on March 19 that the public has been given so far.
ATF agents and the Little Rock Police Department showed up at Malinowski’s home at 4 Durance Court around 6 a.m. that morning. We know from footage previously released by Bud Cummins, an attorney for Malinowski’s family, that an agent placed tape over a doorbell camera.
It’s also been said that agents shut off the electricity to the home before beginning the raid, but Jones dispensed with that rumor: “A records subpoena to Entergy revealed that there was no disruption of service to the home on March 19,” his letter says.
Two seconds before 6:03, an LRPD officer turned on his vehicle’s emergency lights and siren “to announce the presence of law enforcement.” ATF agents then began knocking on the front door and announcing their presence. Bryan Malinowski and his wife, Maer, “were awake in their bedroom when they heard knocking at the door,” the letter says.
Less than 30 seconds later, agents used a battering ram to break down the door. About 15 seconds after that, Malinowski fired the “first of four shots” from a Colt Defender .45 handgun. An ATF agent returned fire immediately afterwards, “discharging three shots from his agency issued M4.”
The letter includes the following brief summary of witness statements and other evidence:
The agents were dressed in khaki pants, dark colored shirts with the ATF shield imprinted on the left side, the words “ATF POLICE” imprinted on the right side, and bullet-proof vests with “ATF POLICE” across the front. The first agent (Agent 1) to enter the residence looked to his left and saw Mr. Malinowski at the end of the hallway pointing the handgun at him. The agent immediately dropped to the ground and rolled to avoid potential gunfire. The second agent to enter (Agent 2) saw Mr. Malinowski firing downwards at Agent 1. At this time, Agent 2 was struck in the foot. As Mr. Malinowski raised his gun towards Agent 2, Agent 2 fired, striking Mr. Malinowski. Immediately after the shooting, officers requested emergency personnel and begin administering medical aid to Mr. Malinowski.
Law enforcement officers are justified in using deadly force under Arkansas law if “the officer reasonably believes that the use of force is necessary to defend himself or a third person from the use of deadly force,” Jones wrote.
Cummins released a statement Friday saying the case was “far from over.”
“The state’s investigation didn’t attempt to make independent judgments about
whether ATF violated the law when they broke down Mr. and Mrs. Malinowski’s front
door. But that question should be a matter of grave concern for the rest of us,” Cummins said.
It’s especially concerning that ATF agents waited a “mere 28 seconds” after beginning to knock before breaking down the door, Cummins said. He continued:
Legally, law enforcement must give the person inside a reasonable amount of time to come to the door to admit them voluntarily before forcibly entering. A search warrant is not supposed to necessarily be a license for a home invasion, especially during an investigation of such a low-level violation with such little risk involved in the search. “Reasonable” time can be short in certain cases, such as those involving narcotics or other evidence that can be destroyed, or when there is a risk of someone fleeing. None of those or any other “exigent” circumstances were present on the morning of the Malinowski raid.
How long is it reasonable to wait for someone to answer their front door at 6:00 am in response to unexplained loud pounding in a 3000 square foot fully insulated home? Let’s pray the answer isn’t 28 seconds. The Fourth Amendment means more than that to every single one of us.
All four Arkansas congressmen, along with Jordan, have asked the state police to turn over the Malinowski case file to Congress by June 26.