BEND – An FBI agent is suspected of lying about firing twice at Robert “LaVoy” Finicum and may have gotten help from four other FBI agents in covering up afterward, authorities revealed Tuesday.
The bullets didn’t hit Finicum and didn’t contribute to his death, but now all five unnamed agents, part of an elite national unit, are under criminal investigation by the U.S. Justice Department. Inspector General Michael Horowitz is leading the independent inquiry.
The remarkable disclosure came as a team of local investigators released findings that two state troopers shot Finicum three times in the back during the chaotic scene at a police roadblock Jan. 26. One bullet pierced his heart, an autopsy showed.
A prosecutor ruled the fatal shooting was legally justified, saying state law allows use of deadly force when officers believe a person is about to seriously injure or kill someone. Finicum kept moving his hands toward a pocket that contained a loaded handgun. Although he was shot from behind, Finicum had a trooper in front of him armed with a Taser who was thought to be in danger.
Finicum, 54, an Arizona rancher, was one of the leaders of the Jan. 2 takeover of the Malheur National Wildlife Refuge near Burns.
Investigators gave no details to explain why the one FBI agent, a member of the Hostage Rescue Team, wouldn’t report the two shots. They also didn’t indicate what his four colleagues did to warrant investigation other than saying it was related to conduct after the shooting.
“The question of who fired these shots has not been resolved,” said Greg Bretzing, special agent in charge of the FBI in Portland. The federal agency is cooperating with the inspector general’s investigation, he said at a news conference.
The revelation is certain to inflame suspicions about Finicum’s death and shake confidence in the FBI, which came under intense fire for botched handling of violent sieges at Ruby Ridge in Idaho and Waco, Texas.
Some supporters have claimed Finicum was shot while surrendering, that he was unarmed and that he was shot nine times. The sheriff in neighboring Grant County, Glenn Palmer, described the police operation as an “ambush.”
Finicum’s family said in a statement a month ago that he was “executed in cold blood” and accused police agencies of deliberately misleading the public about what happened. His widow, Jeanette Finicum, didn’t retreat from that stance after watching the news conference.
“My husband was murdered,” she said in a statement.
The attorney for Ammon Bundy, the occupation’s now-jailed leader, found the news of the FBI shots troubling.
“I’m going to have to go back and reconsider all the conspiracy theories that I’ve written off,” said the lawyer, Mike Arnold.
Investigators had planned to release police reports, interview transcripts, photographs, the autopsy report and new video to allow the public to evaluate the police findings in Finicum’s death.
But they ended up releasing only one video and 19 photographs, citing the new criminal investigation for the change in plans. They also withheld the names of the involved troopers and FBI agents, saying they’ve tracked up to 80 threats against them, mostly on social media.
Document: Text of announcement of findings
The shooting happened after police stopped a Jeep and a pickup carrying the key figures of the occupation along a remote stretch of U.S. 395 north of Burns.
Finicum was driving the truck that carried carried Ryan C. Bundy, 43, Ryan W. Payne, 32, Shawna Cox, 59, and Victoria Sharp, 18. In the Jeep behind them was driver Mark McConnell, 37, Brian D. Cavalier, 44, and Ammon Bundy, 40, the public face of the occupation. They were bound for a community meeting 100 miles north of the refuge in John Day.
Officer statements and cellphone video taken by Cox from inside the truck showed that Finicum repeatedly ignored police orders, first at the traffic stop and then after he crashed trying to elude officers. He nearly ran over an FBI agent before stalling in a roadside snowbank.
What happened in just seconds after that crash could lead to criminal charges against the FBI agents.
Cox’s video showed that one shot hit the truck’s left rear passenger window as Finicum stepped out. At the time, Finicum appeared to have his hands at least at shoulder height.
Investigators later established that the bullet entered the truck through the roof before shattering the window and concluded it was fired by an FBI agent. Another bullet from the same FBI agent apparently went wild and missed the truck altogether, the investigation showed.
Finicum then moved toward the back of his truck and out of view of Cox’s phone, but she was still able to record what was said outside the truck.
Officers repeatedly ordered Finicum to get on the ground, according to the video. The investigation found that Finicum first faced a state trooper taking cover in nearby trees, then turned toward two troopers advancing from the highway.
Those two state troopers fired when Finicum turned back toward the trooper in the trees while reaching for a loaded 9 mm Ruger semi-automatic pistol inside his jacket, investigators said.
Finicum was struck from behind in the left shoulder, the left upper back near his neck and the right lower back, a state autopsy found. The bullet in his lower back migrated up and hit several organs, including his heart. He died at the scene.
One of those two troopers moments earlier had fired at Finicum’s truck as it barreled toward the police roadblock. That trooper hit the truck with three rounds, investigators concluded.
“All six shots fired by the Oregon State Police, the three into the truck and the three that struck Mr. Finicum, are justified,” said Malheur County District Attorney Dan Norris. The shots were “in fact, necessary,” he said.
Although Norris cleared the troopers of wrongdoing, the entire operation remains under a cloud with the disclosure of possible misconduct by the FBI agents. Law enforcement officials tried to blunt the impact, noting that investigating officers discovered and reported the alleged cover-up.
Just days before announcing the investigation results, hundreds of people gathered for weekend demonstrations scheduled in at least 35 states to protest Finicum’s death. They repeated claims that police murdered the occupation spokesman and condemned what many said is the federal government’s renewed effort to silence self-described patriots and militia members.
They were reacting in part to 12 more arrests last week related to the 2014 armed standoff in Nevada involving rancher Cliven Bundy, the father of Ammon and Ryan Bundy. So far, 37 people face federal charges related to the Oregon and Nevada standoffs.
The Finicum shooting investigation showed that the FBI and state police jointly planned the operation when they learned on Sunday, Jan. 24, through media reports that many of the occupation leaders would be on the road to John Day two days later.
State troopers were tasked with conducting the traffic stop at a predesignated area, near a U.S. Forest Service road where police forces could wait out of sight. A squad of FBI agents and troopers was assigned to set up the road block roughly two miles north to contain any fleeing suspects and to stop other motorists from driving into the operation.
The teams expected Finicum to be armed. He was photographed repeatedly at the refuge with a holstered handgun.
Investigators determined that five of the eight people in the Jeep and truck carried loaded handguns. Detectives also recovered three rifles and hundreds of rounds of ammunition from the vehicles.
Ammon Bundy didn’t mention the weapons in a jailhouse interview last week with The Oregonian/OregonLive. “We were headed with weapons of laptops, projectors and PA systems,” Bundy said. “We were going peacefully to a community meeting.”
The reports showed that Bundy wasn’t armed. He, Cavalier and McConnell surrendered without incident.
Finicum stopped his 2015 Dodge pickup a short distance away. Payne, the tactical leader of the occupation, surrendered after a state trooper fired a plastic tipped 40mm pepper spray round that struck the truck’s canopy. The other four people stayed in the idling pickup and Finicum launched into a back-and-forth shouting match with troopers, the investigation found.
He told troopers he was leaving to reach the sheriff in John Day. He referred to Palmer six times at the initial stop.
“The sheriff is waiting for us,” he said at one point. “I’m going over to meet the sheriff in Grant County,” he said moments later.
He taunted troopers to shoot him or otherwise let him go to Palmer. The sheriff has become something of a national hero among anti-government protesters for appearing to support the armed occupiers and opposing federal government control of public land.
“You want my blood on your hands?” Finicum shouted out the window of his truck.
Finicum then sped away, hitting up to 70 mph, the investigative reports showed. Two FBI pickup trucks and one from the state police were parked in his path down the highway, with agents and troopers arrayed around them.
After Finicum crashed into the snowbank and left his truck, state troopers told him at least three times to get on the ground, according to the video. The trooper with the Taser stepped through the snow toward Finicum.
“He was attempting to control or subdue Mr. Finicum with less lethal force after Mr. Finicum refused orders to get on the ground,” said Deschutes County Sheriff Shane Nelson, who led the investigation into the shooting.
Finicum repeatedly challenged police to shoot him as he moved toward them.
“You’re going to have to shoot me,” he said and was told again to get on the ground, the video showed.
“In the midst of that command, Mr. Finicum grabs his jacket with his left hand and reaches with his right hand for his gun,” Nelson said.
That’s when the two troopers behind Finicum fired the fatal shots.
“Mr. Finicum repeatedly and knowingly made choices that put him in this situation,” said Harney County District Attorney Tim Colahan. “It was not the outcome that any of us wanted but one he, alone, is responsible for.”