A bullet hole, a mystery and an FBI agent's indictment — the messy aftermath of the Oregon refuge standoff

By Bryan Denson, Matt Pearce

June 28, 2017 5:05 PM PT

Reporting from PORTLAND, Ore. — The shooting of Robert “LaVoy” Finicum on a snowy Oregon highway on Jan. 26, 2016, was one of those instant American dramas in which every photo, every eyewitness account and every millisecond of video become forensic evidence in a public debate over whether someone deserved to die at the hands of police.

In classic fashion, two sides examined the same evidence and saw two different things. To the government, Finicum, 55, was reaching for a loaded gun in his jacket after speeding away from a traffic stop, and the shooting by Oregon State Police troopers was justified.

To thousands of antigovernment activists across the country, the Arizona rancher was a folk hero who became a martyr when, in their view, he was ambushed — shot in the back without a gun in his hand — by overaggressive law enforcement officials who were trying to crush the armed occupation of the Malheur National Wildlife Refuge.

But when it came to one mysterious piece of evidence in the case, the two sides were bothered by the same question: Where did the bullet hole in the roof of Finicum’s truck come from?

The government offered an answer Wednesday when a member of the FBI’s elite Hostage Rescue Team was indicted on suspicion of shooting twice at Finicum during the chaotic encounter and then lying about it to state and federal investigators.

The agent, W. Joseph Astarita, stone-faced and wearing a dark gray pinstriped suit, entered a plea of not guilty to five counts of lying and obstruction in a two-minute arraignment before U.S. Magistrate Judge Janice M. Stewart in federal court in Portland.

Astarita and the Hostage Rescue Team — the FBI’s crack counter-terrorism unit, which responds to crises all over the nation — had been summoned to rural Oregon to help resolve the government’s high-stakes standoff with a band of heavily armed occupiers who took over Malheur on Jan. 2, 2016.

The occupation near Burns, Ore., was widely viewed as the ideological sequel to the Bureau of Land Management’s 2014 armed showdown with ranchers and militia in Bunkerville, Nev., who were protesting the government’s attempts to get a local rancher, Cliven Bundy, to follow federal wildlands laws.

Finicum, who had a ranch in Arizona, and two of Bundy’s sons came to Oregon for similar reasons — protesting on behalf of local ranchers — and the occupiers holed up at the reserve, holding court with reporters and sometimes advancing dubious legal theories about the illegitimacy of the federal government. In interviews, Finicum hinted he might be willing to die for the cause.

Observers — and participants — feared both encounters might lead to the kind of tense law enforcement siege that had met bloody conclusions on Ruby Ridge in Idaho in 1992 and Waco, Texas, in 1993. The Nevada encounter ended after federal agents withdrew from the scene.

But in Oregon, agents decided to act.

Oregon State Police and the Hostage Rescue Team decided to arrest Finicum and some of the occupation’s other leaders on a rural stretch of highway away from the wildlife refuge as he led a two-truck convoy filled with passengers.

Finicum initially stopped when pulled over by law enforcement, but then sped away, crashed his truck into a snowbank and nearly hit a Hostage Rescue Team member as he apparently tried to avoid a police roadblock. One Oregon state trooper fired three shots at Finicum’s speeding vehicle but didn’t hit anyone.

Then, a moment after Finicum staggered out of the truck with his arms in the air, a video taken by one of the passengers inside the truck shows an apparent shot hitting the roof of the vehicle and striking a window.

Afterward, Finicum moved toward officers and appeared to reach toward his jacket, under which was a loaded gun, and was fatally shot by state troopers.

All of the troopers’ shots were deemed justifiable “and, in fact, necessary,” Malheur County Dist. Atty. Dan Norris said last year after reviewing the shooting.

But investigators were concerned that they could not account for the shots apparently fired by an FBI agent that left the bullet hole in the roof of Finicum’s truck.

None of the FBI agents took responsibility for taking the shots. Suspicions were further aroused when investigators later reportedly couldn’t find two shell casings that had initially been spotted at the scene.

Law enforcement video also reportedly showed some of the FBI agents searching the area with flashlights and huddling together, with one agent picking something up off the ground, according to a report in the Oregonian newspaper last year.

That is one reason Finicum’s widow said she was grateful for Wednesday’s indictment, but not satisfied.

“I believe there’s more that needs to be done; there were other officers involved in the coverup,” said Jeanette Finicum, 57, who has taken over her husband’s ranch. Finicum left behind 12 children and 25 grandchildren.

And although the government’s prosecution of one of its own agents helps answer a question that the two sides had shared about the shooting, the prosecution is not likely to mollify Finicum’s supporters.

“These are not hostage rescuers. The HRT are assassins,” Gavin Seim, an activist who supported the Malheur occupation, said in a Facebook video on Wednesday, in which he cited the Hostage Rescue Team’s presence at the 1990s standoffs at Ruby Ridge and Waco. “A man was murdered, assassinated on the side of the road. I’m sorry, guys. This is not so awesome. This is not a victory when the terrorists of the planet, of our country, of our people commit crimes.”

Seim added that Finicum “exemplifies making a principled stand, standing up and giving his life for his friends and for liberty.” Like many of his fellow activists, Seim had a much darker view of law enforcement. “Every police report in America is false. That’s the norm,” Seim said. Of Astarita, he added, “This guy just got noticed.”

At Wednesday’s court hearing, Stewart ordered Astarita remain free pending trial. The agent declined to comment while leaving court. He was represented by a public defender, who said Astarita would be retaining private counsel.

The prosecution against Astarita comes after more than a year of investigation by the U.S. Justice Department’s Office of the Inspector General and as the government is still trying to prosecute antigovernment protesters who have initiated standoffs with federal agents in Oregon and Nevada over the federal government’s wildlands policies.

Billy J. Williams, the U.S. attorney for Oregon, said the charges against Astarita have no bearing on the investigation of the Finicum shooting, which he described as “necessary and justified.”

When asked the question on most minds about Astarita — “why did he lie?” — Williams offered only this: “I suspect that question will be answered in court.”

Special correspondent Denson reported from Portland and Times staff writer Pearce from Los Angeles.

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@mattdpearce

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UPDATES:

5:05 p.m.: This article has been updated throughout with background and details.

2:15 p.m.: This article has been updated with the agent entering a plea.

This article was originally posted at 12:30 p.m.