Nearly a decade after Robert “LaVoy” Finicum was shot and killed as state and federal police moved to arrest occupiers of the Malheur National Wildlife Refuge, the FBI’s new director has honored FBI Hostage Rescue Team members involved in the chaotic operation.
Director Kash Patel in July presented the team members, including agent W. Joseph Astarita who was acquitted on charges related to the showdown, with the FBI’s Shield of Bravery at a ceremony at the agency’s headquarters in Washington, D.C.
Patel, in a post on X last month, described the medals as among the highest awards for FBI members — “reserved for nominees recognized for acts of bravery, heroism and valor in service of the country.”
The honor revives a long-simmering controversy about what happened that day as the FBI and Oregon State Police cornered occupation leaders on a snowy highway outside Burns in remote southeastern Oregon.
A federal jury in Portland found Astarita not guilty two years after the deadly 2016 confrontation on allegations that he lied when he denied firing two shots at Finicum’s truck on the day of the arrests.
State police troopers shot and killed Finicum, 54, moments after those shots.
Finicum, a rancher from Arizona, had become a prominent figure in the group that staged the 41-day armed occupation, often serving as its spokesman. He said he would rather die than be arrested. He was the only person killed in the takeover.
The award also honored FBI agents whose actions that day later prompted the U.S. Department of Justice’s inspector general to recommend that the FBI update its policies to stop agents from removing evidence from crime scenes.
FBI agents from the Hostage Rescue Team were seen on FBI infrared video walking through the Finicum shooting scene afterward and picking up unidentified items, according to trial testimony.
The FBI also erroneously described the course of events that day in a caption accompanying a photo of Astarita and three other Hostage Rescue Team members standing with Patel at the awards ceremony. The Oregonian/OregonLive obtained a copy of the photo, which had been shared internally at the FBI.
The caption said Finicum rammed his pickup into “the lead HRT vehicle,” trapping one of the team members under Finicum’s truck. That didn’t happen, according to trial testimony.
The FBI’s national press office declined via email Friday to comment on the honor or why it came nine years after the fact, citing “personnel matters, which include internal awards that may be awarded.”
SHOTS AT ROADBLOCK
Finicum had sped off from a surprise traffic stop on U.S. 395 outside the wildlife refuge in Harney County on Jan. 26, 2016, as occupiers were headed to speak at a community meeting 100 miles away.
A handful of members with the Hostage Rescue Team, an elite unit trained to make high-risk arrests, had been called in to help state police capture the occupiers.
The stop had corralled takeover leader Ammon Bundy and several others who were in a Jeep behind Finicum’s truck. Bundy had led protesters who took control of the refuge on Jan. 2 in a federal land management dispute that had begun years earlier.
Finicum encountered a roadblock several miles north along the highway set up by state police and FBI agents. He barreled toward the roadblock in a white Dodge Ram pickup with four other people inside.
Casey Codding, a state police SWAT lieutenant at the time and now state police superintendent, fired three times at Finicum’s truck as it raced closer, striking the front grill, hood and driver’s side mirror but injuring no one.
Finicium swerved to avoid the roadblock and crashed into the snowbank on the west side of the highway. As he stepped out of his truck, two other shots rang out.
Those were the ones that state and local investigators alleged Astarita fired. One of them hit the roof of Finicum’s truck and shattered the rear driver’s side window and the other missed entirely.
Astarita, who had been on the Hostage Rescue Team for only eight months at the time, denied firing his rifle. He was acquitted of two counts of making a false statement and one count of obstruction of justice.
No one has ever taken responsibility for the shots.
Two state troopers moments later fired another three shots that killed Finicum as he walked away from his truck and reached into an interior pocket of his jacket, where investigators said he carried a loaded 9mm Ruger.
Astarita’s criminal defense lawyer, David Angeli of Portland, declined to comment Friday on the award given to his former client.
According to the FBI director, 96 recipients representing 20 FBI divisions received an award last month.
MISLEADING CAPTION
In the case of Astarita and his teammates, the FBI said they were honored for their “courageous acts in the line of duty.”
The caption on the FBI award photo said they responded to a “violent extremist militia group’s armed takeover” of the refuge and helped stage a traffic stop to arrest one of the militia’s leaders and key members who “planned to meet clandestinely outside the refuge.”
But the caption’s description of what occurred next doesn’t square with testimony and evidence presented during Astarita’s three-week trial.
The FBI caption said Finicum rammed his truck into the lead Hostage Rescue Team vehicle, trapping FBI agent John Neidert “under” Finicum’s truck.
But Finicum never struck another vehicle and Neidert jumped into a snowbank on the side of the road to avoid getting hit at the roadblock, according to video played during Astarita’s trial and testimony from Neidert and others.
Neidert testified that he had been standing on a small ladder to see over the hood of an FBI rental truck when he jumped off and narrowly escaped Finicum’s pickup.
Astarita testified that he also had been standing on a small ladder, next to another FBI truck parked at the roadblock.
Astarita said he ran to his left on the east side of the highway to avoid getting hit and watched Neidert run in the opposite direction. He said he later saw Neidert still in the snow, lying on his back, and moved toward Neidert to rescue him.
Neidert testified that he got out of the snowbank and ran for cover on his own.
The caption on the FBI award photo said “two operators” on the Hostage Rescue Team “freed Neidert and repositioned themselves to address further threats.”
Trial testimony also indicated that Astarita responded curtly to an FBI supervisory agent at the scene when asked whether he had fired his rifle that day, saying, “You don’t got to ask me that bro.”
Another FBI supervisor testified that he later confronted Astarita about the remark and Astarita told him that he actually said, “Don’t ask me. I don’t know,” according to trial testimony.
Astarita testified that he didn’t remember his exact words.
In addition to Astarita and Neidert, Michael Ferrari, a senior leader, and a supervisory agent identified only as B.M. were the other Hostage Rescue Team members at the roadblock.
COMPROMISED SCENE
During Astarita’s trial, Greg Bretzing, the FBI special agent in charge in Oregon at the time of the Finicum shooting, testified that agents seen on the agency’s infrared video picking up evidence that night did not follow protocol.
The Hostage Rescue Team members, including Astarita, acknowledged during their trial testimony that they had scoured the roadblock area for sensitive items or dropped gear but denied collecting any shell casings near Finicum’s shooting.
Agents are taught to “leave a scene as intact as possible’' and take photos of an officer-involved shooting scene before touching any potential evidence, Bretzing testified.
The Justice Department’s inspector general assigned staff to investigate Finicum’s shooting and released the results last year, finding the Hostage Rescue Team’s practice of identifying and removing sensitive items, such as night vision googles, weapons or unexploded flash bang grenades, from scenes presented a conflict with the FBI directive to properly preserve a crime scene.
A six-page advisory memorandum to FBI Director Christopher A. Wray last summer recommended the agency develop better guidelines when an FBI team is working with local or state police agencies to ensure crime scenes are properly maintained and that removal of any equipment or potentially dangerous items is appropriately documented.
After Astarita’s acquittal, the inspector general sought FBI approval to compel the polygraph of an unnamed Hostage Rescue Team operator, presumably Astarita.
But the FBI denied the request, backed by then-Attorney General William Barr, “because of his belief that compelling the polygraph would not be consistent with FBI policy or appropriate under the circumstances,” the report said.
The inspector general disagreed, writing that the FBI’s denial “was inconsistent with its usual practice” and deprived his office of information that would have been useful in its inquiry.
The Astarita trial testimony had revealed that neither the FBI nor state or local investigators put up crime scene tape to preserve evidence or set up a log tracking who was coming and going at the roadblock until more than three hours after Finicum was shot.
According to testimony from state police and FBI agents, they were unclear about who was in charge of the scene until investigators from the Deschutes County Sheriff’s Office and Tri-County Major Crime Team arrived.
The Hostage Rescue Team’s actions became an issue when state and local law enforcement investigators determined that eight shots had been fired at the roadblock — two more than the six shots that could be attributed to state police officers.
Further, investigators found only two shell casings at the scene, with both discovered off the road in the snow using metal detectors.
Astarita, now 48, was never put on leave and continues to work as an FBI agent.
In August 2021, a federal judge dismissed most of the claims brought in a wrongful death civil suit by Finicum’s family, who alleged Finicum had been shot “assassination style” after he stepped from his truck.
The judge kept alive a single civil rights claim against then-Gov. Kate Brown because the state hadn’t moved to challenge it. By November 2021, the judge dismissed the entire case because lawyers representing Finicum’s family failed to respond to motions or court requests in time. The 9th U.S. Circuit Court of Appeals affirmed the judge’s decision a year later.
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