Police Abuse

Shooting at Robert Lavoy Finicum and Lying About It is Business as Usual for the Feds

His colleagues having escaped consequences again and again, Special Agent W. Joseph Astarita might be asking why he's been singled out.

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Last week saw the indictment of FBI Special Agent W. Joseph Astarita for lying about shots he'd fired during the January 26, 2016 killing of Robert Lavoy Finicum. The Oregonian noted that the prosecution of FBI agents for their official conduct is almost unheard of. The unusual charges were "devastating" to the FBI, commented Danny Coulson, a former head of the bureau's Oregon office.

Well, maybe the indictment is so devastating because federal agents are rarely punished for brutal and dishonest behavior.

Interestingly, Coulson created and led the FBI's Hostage Rescue Team—the elite force to which Astarita belongs—during the bloody 1992 Ruby Ridge fiasco. He escaped prosecution for his conduct during that mess—for which the federal government paid out over $3 million in damages to survivors—though he spent two years on paid leave (read: vacation). Several other agents were disciplined, though the only official criminally punished for Ruby Ridge was E. Michael Kahoe, who destroyed an internal FBI report critical of the agents' conduct during the high-profile standoff. Anybody further up the food chain, Coulson included, was protected by a review process intended "to create scapegoats and false impressions," according to Eugene F. Glenn, the FBI commander at the scene, who publicly broke rank with his colleagues when he believed he was being set up to take a fall. So Coulson knows well that the rarity of prosecutions of federal agents can't be taken as an endorsement of their behavior—arguably, it could be interpreted as quite the opposite.

Prosecutions might be rarer still—which is to say, Astarita might be walking free and unconcerned today—if one Oregon sheriff hadn't become thoroughly bent out of shape over federal conduct during last year's Malheur National Wildlife Refuge standoff and then in its aftermath.

Deschutes County Sheriff Shane Nelson took on the investigation of the lethal confrontation resulting from what was, to all appearances, an ambush of armed Malheur protesters traveling to a public meeting to discuss their opposition to the treatment of local ranchers in particular, and to federal control of western lands in general. Specifically, Nelson tried to account for the eight shots fired in the incident—six by Oregon state troopers (including those that killed Finicum), none by the protesters, and two by… huh. Because the FBI agents on the scene all denied firing two shots at Finicum (and missing) as he exited his truck.

Nelson and his investigators quickly concluded that Astarita had fired the shots, and that he and his colleagues lied about it for reasons of their own.

"The actions of the FBI HRT in this case damage the integrity of the entire law enforcement profession, which makes me both disappointed and angry," Sheriff Nelson said after the indictment was announced.

Nelson became even angrier when he presented his findings to FBI officials and they did…nothing.

"I was disappointed when I recently heard FBI HRT agents, associated with this case, were not placed on administrative leave after the briefing by our investigators to FBI Administration. Today's indictment will ensure that the Defendant and, hopefully other culpable FBI HRT members, will be held accountable through the justice process."

Nelson isn't exactly an antigovernment radical. He signed off on the killing of Finicum, saying, "Of the eight shots fired, the six fired by the Oregon State Police were justified and, in fact, necessary."

But the sheriff isn't on board with federal agents taking random shots that may well have inflamed the situation. That's a theory quickly embraced by the Malheur protesters and their allies. Finicum's widow, Jeanette, "said Astarita's early shots may have contributed to the firing of the fatal gunshots moments later by two state police troopers who killed her husband," reports The Oregonian. Unsurprisingly, she plans to sue.

Sheriff Nelson voices serious discontent with the FBI's conduct during and after the shooting of Finicum, but knowledge of the bureau's handling of the Ruby Ridge incident might have prepared him for disappointment. So might some familiarity with the federal government's handling of other incidents, such as the 1993 disaster at the Branch Davidian compound in Waco, Texas, during which more than 80 people died.

FBI agents escaped official discipline for their conduct at Waco, but not criticism. Rather than shred an inconvenient internal report, the bureau and its allies produced an exculpatory public "review" that the New York Times promptly labeled a "whitewash." The newspaper's editorial board went on to note, "The report describes a litany of errors and blunders. Why, then, does it assign no blame?"

By contrast, the Bureau of Alcohol and Tobacco and Firearms fired two agents who led the initial raid and siege to which the FBI joined its efforts when matters went lethally wrong. Chuck Sarabyn and Phillip Chojinacki lost their jobs over accusations of "poor judgment and lying to investigators" (a pattern with federal law enforcement agents, it would seem). Then again, we're talking about a federal agency; one year later, Sarabyn and Chojinacki were rehired with full back pay and benefits.

Years later, the Times again called out the FBI, asking "why the F.B.I. failed for six years to tell anyone, including Congress and the Attorney General herself, that it had used incendiary tear-gas canisters near the end of the siege—an important point, given the lethal fire in which the standoff ended. Soon, Assistant U.S. Attorney Bill Johnston, the prosecutor who belatedly revealed the use of those canisters, faced charges of concealing evidence. Texas Monthly reported that he was being hung out to dry so the consequences would reach no further through the ranks of federal officials because he was "the only guy who doesn't have friends in Washington."

If you're asking yourself why Astarita and company would have concealed the shots he fired during an incident that resulted in state police killing Finicum anyway, perhaps the answer is that lying and concealing information seems to be the bureau's go-to response.

The FBI almost screwed up what should have been the slam-dunk prosecution of Timothy McVeigh for the bombing of the Alfred P. Murrah federal building in Oklahoma City (a crime largely motivated, it's worth remembering, by McVeigh's outrage over federal misconduct at Ruby Ridge and Waco). Despite minimal doubt about his guilt (McVeigh wanted to plead "necessity") the FBI couldn't help putting its thumb on the scale. The bureau's crime lab was caught reaching "scientifically unsound" conclusions that were "biased in favor of the prosecution" according to the Justice Department's Inspector General. Then McVeigh's execution was delayed when it was discovered that federal officials concealed hundreds of documents from his defense attorneys.

Frederic Whitehurst, the whistleblower who revealed the FBI crime lab's shenanigans in not just that high-profile case, but many others, was targeted by his superiors for retaliation for his troubles. He ultimately walked away with a $1.16 million settlement.

But back to the present.

Astarita "falsely stated he had not fired his weapon during the attempted arrest of Robert La Voy Finicum, when he knew then and there that he had fired his weapon," the federal indictment reads. Astonished by such bold-faced dishonesty from a federal agent, and by federal higher-ups' seeming lack of concern, Sheriff Nelson became "disappointed and angry" and pushed the issue—resulting in that court appearance and the trial to come.

Good for Sheriff Nelson. Finding out that people and agencies you respect are thugs and liars is a rough wake-up call for anybody. Persisting in the face of that unpleasant revelation deserves praise.

But if this indictment is to be other than just another footnote to the history of checkered conduct by the FBI and other agencies, more of us need such wake-up calls. Then, maybe, we'll curb the behavior that leads, on such rare occasion, to "devastating" consequences for federal officials.

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  1. In my fantasy libertopia, there would be no government police — or rather, everyone could be police, of course including government employees — well, if there were a government with police powers.

    But I digress. In my libertopia, you could hire whoever you want as police. When police screw up, you might have trouble hiring or trusting other police to investigate the criminal police, but you could always do it yourself. Though I don’t think that would be necessary. We always hear about honest cops; my counter argument is that an honest cop would turn in fellow bad cops, and you can gauge how many good cops by how many bad cops get prosecuted.

    But I digress. Cops would have no immunity, qualified or absolute. Same applies to prosecutors and judges. Did I mention that in my libertopia, only victims (and their guardians or kin) can prosecute? Of course they can hire anybody they want to do the actual prosecution, but the government doesn’t employ any prosecutors or judges, let alone reserve that monopoly to themselves.

    No government judges? How would that work? Well, criminals and their victims would normally agree on a judge / court / arbitrator; most would, but a few hard cases would refuse to cooperate, in which case they could each hire their own judges, but appeals would be based on the logic of the verdicts, the provenance of evidence, etc, and if either party excreted a biased verdict, appeals would knock it out.

    1. That’s no utopia – that’s a grotesque dystopia which would immediately fall into chaos and unfettered violence.

      1. Why?

        And what makes you think coercive government does any better?

        1. Never mind, I see the problems. You’d no longer be able to reflexively lick the government jackboots. You’d have to read reports of your beloved jackboots being exposed for their crimes. Your willingness and ability to close your eyes to cop lies and malfeasance would be stretched past the breaking point. And perhaps worst of all, you’d no longer be able to get a hardon from reading tales (and I do mean tales!) of your brave boys in blue camo.

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          2. I’m making over $7k a month working part time. I kept hearing other people tell me how much money they can make online so I decided to look into it. Well, it was all true and has totally changed my life.

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        2. That you stoop to a gross Straw Man retort only further proves that you have no capacity for intelligent argument.

          1. Hunh??

            Crime necessarily has a VICTIM. SOmeone(s) who actually suffered a specific enumberable harm.

            What HARM had Mr. Finnicum, or any of the others, perpetrated on anyone, and on what basis was Mr. Finnicum charged, tried, convicted, and executed without even a shred of due process?
            This man is dead, as in, no longer living. His Wife has no husband now, BECAUSE this officer fired when he should not have…. first harm, then LIED about it later, second harm.
            WHO are the criminals here? Straw man? Methinks the only straw man hereaboit is the one you dangle before us.

  2. This article is little more than polemics and assumptions, mixed with just enough fact to sound credible.

    The headline should be enough to expose this ? “Business as Usual for the Feds” ? since, in this case, it was “the feds” who indicted one of their own, and the criminal behavior was isolated to one rogue FBI agent (and possibly his team members, as we shall soon learn).

    “Deschutes County Sheriff Shane Nelson took on the investigation”

    Sheriff Nelson was assigned the investigation by Harney County district attorney Tim Colahan to avoid any appearance of conflict of interest, but the investigation was undertaken by the Central Oregon Major Incident team, a coalition of members from the county’s various law enforcement agencies.

    “Nelson signed off on the killing of Finicum”

    Nelson hardly “signed off” on this conclusion ? it was his own conclusion derived from a fair and complete investigation.

    “state police killing Finicum anyway”

    As Sheriff Nelson’s investigation proved, the Oregon state police shooting of Finicum was entirely justified and followed all normal procedures. In fact, the OSP troopers held off on using lethal force as one trooper tried to get close enough to Finicum to use his Taser for a non-lethal arrest. It was only when Finicum threatened that unarmed trooper that the other two fired to protect their fellow officer.

    1. Nelson hardly “signed off” on this conclusion ? it was his own conclusion derived from a fair and complete investigation.

      What do you think “signed off” means?

    2. As Sheriff Nelson’s investigation proved, the Oregon state police shooting of Finicum was entirely justified and followed all normal procedures.

      Followed procedures is meaningless blather. The sheriff’s investigation was hardly impartial and proved nothing except that the sheriff signed off on the killing.

      The video I saw was by no means conclusive of Finicum reaching for a gun. You see what you want, and you are obviously a jackboot licker.

      1. The only thing “obvious” here is that you are willfully blind, abhorrently biased, and utterly incapable of objective rational thought.

    3. “the criminal behavior was isolated to one rogue FBI agent (and possibly his team members, as we shall soon learn).”

      Criminal behavior indeed. And not just the false statements.

      He shot at a man with no legal justification. That’s assault with a deadly weapon.

  3. …continued:

    “Sheriff Nelson pushed the issue”

    It was not Nelson who brought the FBI investigation to a just conclusion ? it was the FBI’s internal investigation team itself ? in other words, “the feds”, whom this author castigates as the embodiment of evil.

    “people and agencies you respect are thugs and liars”

    It’s not at all evident that this author has any respect for either the FBI or any agency of the federal government, nor any respect for REASON (the ironic name of this website).

    Yes, the FBI’s past behavior, from COINTELPRO to Waco and Ruby Ridge, needed to be exposed. But it was precisely because of those official embarrassments that the FBI’s Oregon leadership was so careful about repeating history at Malheur.

    Overall, the FBI and state and county law enforcement in Oregon deserves praise for their handling of the Malheur occupation ? not this blind condemnation by people driven by ideology over reason.

    1. It’s not at all evident that this author has any respect for either the FBI or any agency of the federal government, nor any respect for REASON (the ironic name of this website).

      Very few libertarians have much respect for this government or any other. To throw in REASON is bizarre.

      The FBI seldom deserves praise, and the only thing they learned from Ruby Ridge and Waco was how better to cover for themselves and shift the blame elsewhere.

      Fuck off, slaver. Your fascination with jack boots is pathetic.

      1. It’s Tuccille; of course he has no respect for the FBI.

        1. No informed person would.

      2. What is “pathetic” is your adolescent lashing out at anything you don’t understand.

    2. “It’s not at all evident that this author has any respect for either the FBI or any agency of the federal government, nor any respect for REASON (the ironic name of this website).”

      Drink?

  4. I recall that the FBI has a truly amazing record on justified shootings. When they investigate themselves, they have all been justified. As in, their record is perfect or very close to it of never being found unjustified. I may have to try to find some articles on that.

    1. This is the article I was thinking of:
      http://www.nytimes.com/2013/06…..tless.html

    2. That’s my recollection too, but I avoid the NYT so I won’t check your link. IIRC they have patted themselves on the back 100% of the time. This time, their designated blamee didn’t take kindly to the finger pointing and caught them out, but their own internal record is still spotless.

      1. I’ll summarize: The article states that in over 150 FBI shootings from 1993 through 2013, every single one was ruled “justified”.

        1. Perfect record ! I’m convinced !!!

  5. One interesting point about Waco. The county sheriff had been to the compound several times to investigate various complaints from neighbors. He always arrived in daylight, in a marked patrol car, wearing a uniform and badge. He never got shot, or even yelled at.
    Maybe feds should not have black clothes and not have permission to operate at night until after violence has been initiated by others.

  6. Why don’t the FBI just publicly horsewhip one of their many undercover informants as the scapegoat designate on any screw-up? You know damn well there were at least several of them there.

  7. “Nelson became even angrier when he presented his findings to FBI officials and they did?nothing.”

    You mean to tell me that the paragon of honesty, integrity and democracy, James Comey, stood by and did nothing when presented with evidence that a member of his law enforcement agency fibbed? Is that how he kept ageny morale so high?

  8. How can gunning down an unarmed man who is surrendering be justified? Were any of the six fired by the OSP actually ‘justified’ or remotely, necessary? It took 8 hours for the assassins to recover or plant a pistol on Finicum. If he had actually HAD a pistol, the first thing any real policeman would do is secure the weapon. Even though few HRT members have ever been cops, supposedly the OSP had been. The only reasons for a gun NOT being secured ASAP would be an active shooter or the gun NOT existing until planted.

    As for the OSP’s shooting of Finicum being “justified and followed all normal procedures”, they ordered him to take his hands out of his pockets, using a non-existent ‘pulling a gun’ to murder him in cold blood. BTW, a Taser can easily be lethal and is not standard for a cooperative subject’s arrest. Despite video and witnesses, the only people claiming that Finicum threatened anyone are the very people that opened fire with no actual threat.

    Finicum was murdered. Point, set, match.

  9. The FBI has been a criminal agency ever since Hoover started it. They should have been disbanded for their harassment of MLK, but failing that, they should be disarmed and relegated entirely to performing investigations, and whenever they want to make an arrest, they should have to call upon the local sheriff in the jurisdiction where the accused is found.

    -jcr

    1. Hear hear!

  10. Yeah, This time, their designated blamee didn’t take kindly to the finger pointing and caught them out, but their own internal record is still spotless.

  11. Hmm… I he fires his gun first (maybe not even at the person) and then yells “SHOTS FIRED!!!” ?

    Do we have audio to go with that video?

  12. My sister was a defense witness in the Bundy Malheur case last fall. FBI Special Agent Ronnie Walker, who was an investigator for the prosecution, called her prior to the trial and told her she had to talk to him. He lied to her and tried to intimidate her into a phone interview. J. D. Tucille is right. Lying is business as usual for the FBI.

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  14. “… lying and concealing information seems to be the bureau’s go-to response.”

    The fish rots from the head, and Obama and Clinton provide the example.

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