By MAXINE BERNSTEIN
THE OREGONIAN/OREGONLIVE
The Portland trial of FBI agent W. Joseph Astarita offered the most complete account so far of what happened when police surprised the leaders of the Malheur National Wildlife Refuge occupation on a snowy highway in southeastern Oregon three years ago Saturday.
Members of the FBI’s elite Hostage Rescue Team and SWAT officers with Oregon State Police jointly planned to stop a two-car convoy ferrying occupiers off the refuge along U.S. 395 to a community meeting.
Robert “LaVoy” Finicum, an Arizona rancher who became the spokesman for the armed occupation, was driving a white Dodge Ram truck with four passengers. Three others were in a copper-colored Jeep. It was about 4:30 p.m. on Jan. 26, 2016. The encounter turned deadly after Finicum fled the stop and ended up at a roadblock about a mile away.
A state police officer fired three times from the roadblock at Finicum’s truck as it raced at speeds up to 75 mph toward the six officers waiting there. The truck swerved into a snowbank on the west side of the road at about 50 mph, investigators found.
Astarita then allegedly fired two shots as Finicum stepped out of the truck, one hitting the roof of the truck and the other missing, investigators said. Astarita was acquitted last summer of charges of making false statements and obstructing justice for denying that he took the shots. No one else has acknowledged taking those shots.
Shortly after someone took those two shots, two state police SWAT officers shot and killed Finicum.
Here’s a who’s who of the officers working the operation that day and their description of what they did, according to testimony and exhibits from the three-week trial:
THE PLAN
FBI agent Michael Ferrari, the senior team leader of the Hostage Rescue Team gold unit, planned the operation with state police SWAT “Officer 1.”
(State police have withheld the names of the two SWAT officers who fatally shot Finicum, referring to them only as Officer 1 and Officer 2, citing safety concerns. But a courtroom slip by one witness allowed the name of one of those troopers to become public, with social media posts quickly revealing the name of Casey Codding, who has since been promoted from lieutenant to captain.)
Two state police trucks and a police van, all equipped with lights and sirens, were to make the initial stop.
The three vehicles, holding state police SWAT officers and FBI hostage team agents, assembled in a snowpark off the east side of U.S. 395 and waited for word from FBI agents flying overhead when the refuge leaders approached.
The FBI and state police also set up a separate roadblock about a mile north of the stop location. Two FBI rental trucks formed a V across the highway at the roadblock and a state police command pickup was parked behind the V, straddling the center line and facing south. Spike strips were placed in front of the trucks in the V formation.
The FBI agents and state troopers had hoped the Jeep -- driven by an informant -- would be first in the two-car caravan leaving the refuge. Occupation leader Ammon Bundy and his bodyguard, Brian Cavalier, were passengers in the Jeep. Instead, Finicum’s truck was in the lead.
The idea: “The vehicles would see the marked units and stop and do the right thing,'' Ferrari testified. "The north roadblock was merely a contingency.''
AT THE INITIAL STOP
Officer 2 pulled over Finicum’s truck in a gray state police Dodge truck with two other officers.
Officer 2 said state police SWAT officer Bob Olson, in one of the other state trucks, fired a 40 mm sponge bullet at Ryan Payne, front passenger in Finicum’s truck. The bullet struck Payne in the hand when he hesitated in getting out of Finicum's truck as he tried to surrender. Payne then surrendered.
When it became clear Finicum and his other passengers weren't getting out, state police planned to have Olson fire a gas round through the open right passenger window.
But Finicum drove off before that could happen, Officer 2 testified.
The original plan didn’t include a "vehicle assault option,'' Ferrari testified. When Finicum sped away, "we kind of made that plan on the fly,'' he said.
Ferrari watched Finicum's truck heading toward the roadblock using a handheld computer monitor showing a live video feed from an FBI plane.
Officer 2 radioed ahead to Officer 1 at the roadblock, relaying that Finicum had yelled that he wasn't going to surrender and that Finicum was saying police were going to have to shoot him.
The refuge occupiers in the Jeep surrendered at the initial stop – Ammon Bundy and Cavalier. Mark McConnell, the Jeep’s driver and FBI informant, wasn’t arrested.
AT THE ROADBLOCK
Ferrari and Officer 1, who at the time was a lieutenant leading the state police SWAT team, were at the roadblock. So were FBI hostage team agents Astarita and John Neidert, who stood on small ladders to see over the hoods of the FBI rental trucks. Astarita was on the ladder beside the truck in the northbound lane and Neidert was on a ladder beside the truck in the southbound lane.
An FBI supervisory special agent identified only as B.M. and state police SWAT Officer Joey Pollard. (B.M. is involved in special operations with the Army Reserve, so authorities said they wouldn’t release his name.)
Officer 1 said he shot at Finicum’s truck as it approached the roadblock "to get that truck to apply the brakes'' or to have it veer off the side of the road.
On cross-examination, Officer 1 said he couldn't see into the truck but knew a driver and passengers were inside. He fired with his left foot in the snow on the east side of the highway and his right foot resting on the back of the FBI rental truck in the northbound lane.
He hit Finicum’s truck three times, striking the front grill, hood and driver’s side mirror, investigators said. But the truck kept going.
Astarita said he heard somebody say, “Get down! They’re shooting!’’ As Finicum’s truck reached the roadblock, Astarita said he heard a supervisor yell, “Bail! Bail! Bail!,’’ and he ran to the east side of the highway with B.M. and Ferrari to get out of the way. Neidert bailed out in the other direction. Pollard was initially stationed further north, planning to turn away any civilian traffic from the roadblock.
The FBI agents and Officer 1 all thought Finicum’s truck hit Neidert as it swerved into a snowbank on the west side of the road and came to a stop.
Officer 1 crossed from the east side to west side of the road after Finicum’s truck crashed into the snowbank.
ONCE FINICUM’S TRUCK STOPPED
Court exhibit
(A screen shot from an FBI aerial video shows the roadblock after Robert "LaVoy" Finicum was fatally shot. Officers have approached his body.)
FBI agent B.M. was standing by the front of the state police command truck in the middle of the road. Astarita, according to prosecutors and B.M., was standing by the open front passenger door of the state police command truck. Officer 1 was near the back of the FBI truck in the southbound lane.
B.M. and Astarita saw Neidert’s head pop out of the snow behind the rear right tire of Finicum’s truck in the snowbank.
B.M. said Astarita was to his right. He said Astarita had his rifle shouldered, “oriented toward’’ Finicum’s truck.
B.M. said he didn’t remember hearing any gunshots when Finicum first stepped from his truck.
WHERE THE OFFICERS WERE AT THIS POINT
Court exhibit
(During the trial, Officer 1 made this red mark to show his movement west across U.S. 395 after Robert "LaVoy" Finicum's truck swerved into the snowbank. The line extends further than where he ended up. He was behind the truck in the southbound lane.)
Officer 1 said he moved to the west side of the road to try to rescue Neidert. Focused on Neidert, Officer 1 testified that he recalled "being startled by loud noises to my right.'' (Testimony revealed that Officer 1 hadn’t mentioned to investigators that he had been startled until a month before the trial.)
Ferrari said he tripped in a snowbank on the east side of the road, got up and moved to the back side of the state police command truck and then up to the front driver’s side of the truck.
Court exhibit
(These are the locations of three of the FBI agents as Robert "LaVoy" Finicum emerged from his truck. "A" is W. Joseph Astarita. "N" is John Neidert. "M" is Agent BM based on their trial testimony. )
Neidert, still in the snowbank, was worried passengers remaining in Finicum’s truck might fire shots, so he tried to hold a rifle aimed at the passenger side.
As Finicum emerged from the truck, Neidert heard commands and at some point ran out of the snow to take cover behind the front passenger side of the state police command truck.
Pollard said he was looking at Finicum's hands when Finicum stepped out of the truck and heard a "loud bang.''
Officer 1 said he moved around to the rear passenger side of the FBI truck in the southbound lane.
He said he heard Pollard, now in the treeline on the west side of the highway, yelling commands at Finicum, who had by then walked away from the truck.
Pollard said he repeatedly ordered Finicum to get down on the ground, first holding a .40-caliber handgun in his right hand. Pollard said he locked eyes with Astarita, concerned about a potential cross-fire situation, as Finicum started moving away from his truck.
FATAL SHOTS
Court exhibit
(Officer 1's AR-15.)
As Finicum walked away from his truck closer toward Pollard, Officer 1 said he walked into the snow to the rear of Finicum's truck to provide cover for Pollard, who had holstered his handgun and taken out a Taser at that point, and to contain Finicum.
Officer 1 said he saw Finicum put his hands toward the center of his body. He then saw Finicum turn away from him toward Pollard and, in a "sweeping motion,'' reach with his right hand into his jacket, where Officer 1 believed Finicum kept a gun in a shoulder harness.
"I felt at that moment I had to use lethal force'' to protect Pollard and himself, he testified.
He fired twice, hitting Finicum in the back.
Officer 2 had arrived at the scene with other troopers, following Finicum’s truck as it fled the initial police stop.
Once there, he saw Finicum outside his truck. He said he saw Finicum's hands in the air but then saw Finicum reach with his right hand across his body to the left interior of his jacket.
"I believe he was attempting to grab a firearm,'' Officer 2 testified. "I saw Finicum turn and look at Pollard and saw him reach into his jacket pocket two times.''
If Finicum did it again, Officer 2 decided, he'd have to fire. Officer 2 stepped around the front of the truck he had ridden in to the roadblock, removed the safety on his A-10 rifle. He watched as Finicum turned his back slightly to him and reached into his jacket again, Officer 2 said.
"At that point, I fired ... as I prepared to squeeze the trigger, I heard one shot just prior to me,'' Officer 2 said. He surmised it came from Officer 1, who was to his right. He said he didn’t hear the second shot from Officer 1.
Officer 2 fired once and also hit Finicum in the back.
STATUS OF THE CASE
(Government expert's camera-match video fly-through of the scene on U.S. 395)
-- Astarita continues to work as an FBI agent. The U.S. Department of Justice Inspector General's Office continues to investigate misconduct allegations against him.
-- Finicum's widow, Jeanette Finicum, and his family have filed a wrongful death lawsuit in U.S. District Court in Oregon against Oregon State Police, the FBI, Oregon's governor and others. Case filing deadlines were placed on hold because of the federal government shutdown.
-- Of those convicted in the takeover of the refuge and sentenced to prison, all are out but Darryl Thorn, who remains at a residential re-entry center in Seattle. The others have completed their sentences and are out on post-prison supervision.
In June, Blaine Cooper was the last to be sentenced of 18 people who either pleaded guilty or were convicted by a jury in the 41-day refuge occupation. Prosecutors originally indicted 26 people. Leader Ammon Bundy, brother Ryan Bundy and five others were acquitted of all charges during a trial. The government dropped a conspiracy case against independent broadcaster Pete Santilli.
The occupation began Jan. 2, 2016. Ammon Bundy said the takeover was a protest over the imprisonment of two local ranchers but it quickly morphed into a campaign to denounce federal control over public land.
-- The wildlife refuge is back to full operation. Gates at the entrances and security cameras throughout the headquarters were installed after the occupation. The U.S. Fish & Wildlife Service also lost four refuge employees – about a third of its staff there -- because they didn't feel secure living in the area anymore.
-- Maxine Bernstein
Email at mbernstein@oregonian.com
Follow on Twitter @maxoregonian
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Court exhibits
(Screen shot of the FBI aerial video shows the roadblock after Finicum hit the snowbank. The police vehicle that had been chasing after Finicum's truck is seen arriving at the roadblock.)
Court exhibits
(Robert "LaVoy" Finicum's truck in the snowbank off of U.S. 395)
Court exhibits
(Side shot of Robert "LaVoy" Finicum's truck in the snowbank.)
Court exhibits
(Officer 1's rifle ammunition. Lawyers for FBI Agent W. Joseph Astarita argued Officer 1 could have taken the two disputed shots; Officer 1 said he loaded his rifle magazine with 29 bullets and 24 were remaining, confirming his account that he fired five shots that day and not the two disputed rounds. Astarita's lawyers countered that Officer 1's rifle capacity is 31 bullets.)
Court exhibits
(State police Officer 1 left his AR-15 in the back of a police truck after the shooting. )
Court exhibits
(Bullet hole strike to grill of Finicum's truck)
Court exhibits
(Remnants of flash-bang grenades remained at the shooting scene on U.S. 395. Yet only two shell casings of eight gunshots fired at the roadblock were found, according to trial testimony.)
Court exhibits
(Bullet hole in hood of Finicum's truck)
Court exhibits
(Bullet trajectory analysis government experts did to try to determine who fired shot that hit roof of Finicum's truck.)
Court exhibits
(Government expert's bullet trajectory analysis of the bullet hole to the roof of Finicum's truck)
Court exhibits
(Photo showing how Finicum's truck was wedged in snowbank off U.S. 395)
Court exhibits
(Government's bullet trajectory work done to determine who fired the shot that struck the roof of Finicum's truck.)
Court exhibits
(Bullet hole to roof of Finicum's truck)
Court exhibits
(A flash-bang grenade pin marked as evidence after Finicum was fatally shot.)
Court exhibits
(Bullet hole to roof of Finicum's truck)
Court exhibits
(Training record for Officer 1)
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