New details of Finicum shooting aftermath revealed at FBI agent trial
Updated Jul 26, 10:45 AM; Posted Jul 25
By Maxine Bernstein
mbernstein@oregonian.com
The Oregonian/OregonLive
Two Oregon State Police troopers who fired the fatal shots at refuge occupation spokesman Robert "LaVoy" Finicum in 2016 weren't interviewed by investigators until five days later.
Travis Hampton, then a state police major in charge of agency operations, exchanged multiple text messages with one of the two troopers before his interview, including one as Hampton met with investigators. The same trooper also left his rifle in a truck overnight at the scene.
FBI agents at the shooting site didn't write any reports about their roles at the roadblock that day.
Details of a chaotic confrontation and its aftermath came out in the first day of testimony in the trial of indicted FBI agent W. Joseph Astarita, accused of lying when he denied he fired two shots at Finicum's truck. One shot hit the roof of the truck and the other missed. Moments later, the troopers shot and killed Finicum.
Prosecutors called Greg Bretzing, the FBI special agent in charge at the time and since retired; Hampton, who is now state police superintendent; and Scott Ward, a supervisory FBI special agent who was the highest-ranking FBI agent on U.S. 395 when the shooting occurred Jan. 26, 2016.
Bretzing said he approved the "Malheur Wildlife Refuge Militia Operation Vehicle Interdiction Plan,'' to intercept the occupation leaders as they drove off the refuge that day. They were part of an armed group who took over the refuge headquarters three weeks earlier.
He watched the arrests unfold on a live feed from the FBI's aerial video in the command post on the second floor of the middle school in downtown Burns. Bretzing wanted the feed recorded and replied "absolutely," he said, when someone asked: "Are you sure you want to do that?"
The group from the refuge was divided into two carloads - some in Finicum's white pickup and the others in a copper-colored Jeep. Bretzing watched Finicum pull away from the police stop on the highway, speed off toward a roadblock further north and then swerve into a snowbank.
He and Hampton each testified that they thought Finicum's truck had struck an FBI agent.
"I thought we had an officer killed,'' Hampton said.
The first information Bretzing got from the scene was that both state police and the FBI had fired shots. Within five minutes or so, he said, that was corrected. "Strike that, OSP shooters only,'' he said he learned.
Bretzing said Deschutes County Sheriff Shane Nelson, in the days after Finicum's shooting death, asked him to make sure everybody reported their shots. Nelson led a team of Oregon investigators who investigated the fatal shooting of Finicum.
The next month, Bretzing said he got a call from Oregon's U.S. attorney, saying the Deschutes County sheriff's investigators wanted to show him something that concerned them.
Within a day, Bretzing went to the Sheriff's Office in Bend and watched the FBI's infrared aerial video show FBI Hostage Rescue Team agents walking around the scene.
"It appears they were looking for something,'' Bretzing testified, noting he saw the lights from their rifles shining on the ground. They were moving around, kicking in the snow.
As a past leader of the FBI's Shooting Incident Review Team, Bretzing said what he was watching didn't follow FBI protocol, which is "leave a scene as intact as possible'' and take photos of an officer-involved shooting scene before touching any potential evidence.
Ward, the supervisory FBI agent, had watched the initial stop of the refuge leaders from a vehicle behind the state police and FBI agents who approached the Jeep and Finicum's truck. He was supposed to handle any media or militia inquiries at the scene and was getting updates from the roadblock further north on a radio.
But he was frustrated by the poor radio communication, so he asked another FBI agent to go check who fired shots and who was hit.
He said he went to the shooting scene two times, noticed a lot of foot traffic and no crime scene tape or crime scene log that kept track of who was coming or going. He testified that Hostage Rescue Team agents typically do checks to account for anything they might have dropped after a shooting, such as a radio, flashlight, spare magazine or pieces of a flash-bang grenade.
Asked if he had picked up anything, "I removed nothing,'' Ward testified.
Hampton was grilled by defense lawyer David Angeli on the text messages he exchanged with a state police SWAT officer identified only as "Officer 1,'' who had fired fatal shots at Finicum.
In one exchange the night of the shooting, Hampton wrote to "Officer 1'' that he would approach the investigation as if he were personally in the officer's shoes.
"You told him that?'' Angeli asked.
"Yes,'' Hampton said.
On redirect, prosecutor Gary Sussman asked Hampton what he meant by the text message.
Hampton said "Officer 1" had "grave concerns'' that he, his wife and children would face harm because of his role in the shooting - he fired two of the three fatal shots at Finicum. Hampton said he told the officer that he'd be equally concerned if the roles had been reversed and would approach it the same way.
Sussman asked Hampton if he was suggesting that he'd intercede in the investigation. "Absolutely not,'' Hampton said.
Angeli continued to question Hampton about other text messages.
At 10:15 a.m. the day after the shooting, Hampton texted "Officer 1": "I have some info if free for a call,'' according to Angeli, who was reading the message. Ninety minutes later, Hampton sent another text to the officer: "Have update when free.''
On Jan. 28, 2016 at 11:02 a.m., Hampton sent a text message to "Officer 1," saying he was meeting with Deschutes County sheriff's office investigators at that moment and lining up the FBI aerial video so the officer could view it before his interview, Angeli noted.
"I had given him consistent updates,'' Hampton said, adding later that he wasn't providing updates on the shooting inquiry but on the status of the refuge occupation and arrests.
"I don't recall setting up any FBI video not for public consumption,'' he said.
The video had already been shared with the media two days after the shooting . It was all over the Internet, the prosecutor noted.
Under questioning from Sussman, Hampton said it's fairly typical to work through a union representative or legal counsel to make sure an officer is available for an interview.
"Officer 1" and "Officer 2," the other trooper who shot Finicum, sat down with sheriff's investigators on Jan. 31, 2016.
