The U.S. Department of Justice’s inspector general recommended Tuesday that the FBI update its policies on crime scene procedures to stop agents from removing evidence as it appears they did immediately after the 2016 fatal shooting of Robert “LaVoy” Finicum, the spokesman for the occupation of the Malheur National Wildlife Refuge.
Unidentified FBI agents were seen on FBI infrared video walking through the shooting scene and picking up items the night that Finicum was killed at a highway roadblock set up by the FBI and Oregon State Police, according to testimony at a subsequent federal trial.
Inspector General Michael E. Horowitz, who assigned a team to investigate Finicum’s shooting, found the FBI Hostage Rescue Team’s practice of removing sensitive items from shooting scenes “potentially conflict” with FBI procedures for handling evidence, which prohibit removing anything from a crime scene.
In a six-page advisory memorandum to FBI Director Christopher A. Wray, Horowitz recommended the FBI 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.
The disclosure in Finicum’s shooting came in the Portland trial of FBI agent W. Joseph Astarita, who was acquitted in 2018 of lying to conceal the firing of two shots at Finicum’s truck.
After the trial, it remained a mystery who fired twice after Finicum ran a police stop, swerved into a snowbank at the roadblock U.S. 395 in Harney County, stepped from his truck with hands in the air and shouted, “Go ahead and shoot me.” One shot hit the roof of the truck’s cab and shattered the rear driver’s side window and the other missed entirely, but both were distinctly audible on a video captured by rear seat passenger Shawna Cox.
Moments later, two state police SWAT officers shot and killed Finicum after he walked away from his truck and reached into his inner left jacket pocket where police said he had a loaded 9mm Ruger pistol. The Malheur County district attorney found the shooting justified.
During the trial, Greg Bretzing, the FBI special agent in charge at the time of the Finicum shooting who had since retired and was a past leader of the FBI’s Shooting Incident Review Team, testified that what he saw on the FBI’s infrared video 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.
The inspector general’s report said the FBI Hostage Rescue Team’s practice of identifying and removing sensitive items, such as night vision goggles, weapons or unexploded flash bang grenades from crime scenes -- presented a conflict with the FBI directive to properly preserve a crime scene as-is.
“The DOJ Office of the Inspector General (OIG) identified these concerns in connection with the FBI HRT’s role in a law enforcement-involved shooting that occurred following an armed militia’s seizure of the Malheur National Wildlife Refuge near Burns, Oregon,” the report said.
During the course of the criminal investigation into the Finicum shooting, state and local law enforcement authorities became aware of FBI aerial surveillance video that showed FBI Hostage Rescue Team agents “moving around the scene in the dark, using flashlights to look under and around vehicles, examining the area near the roadblock, and appearing to pick up objects from the roadway,” the inspector general’s report said.
The FBI agents denied searching for or picking up ammunition casings and instead told state police detectives that, consistent with the Hostage Rescue Team’s practice, they were conducting a “sensitive items check,” according to the inspector general’s review.
The federal agents said they were looking for canisters from three flash-bang grenades they used, according to the report. The FBI agents never found them, but state and local investigators subsequently found all three, the report said. Two of the three canisters were found in plain sight on the road, the report noted.
The actions of the FBI’s Hostage Rescue Team’s agents became an issue when state and local law enforcement investigators determined that eight shots had been fired at the roadblock in January 2016 -- two more than the six shots that could be attributed to two state police officers. State police said their officers fired three shots at Finicum’s truck as it approached the roadblock and three that killed him after he stepped away from his truck and reached inside his jacket.
Further, investigators only found two shell casings at the scene, with both discovered off the road in the snow using metal detectors.
After Astarita was acquitted at trial, the Department of Justice’s Office of Inspector General assigned a team to examine the investigation and trial record and research relevant policy issues.
The inspector general provided the results to the FBI this past May, including criticizing the FBI for not allowing the office to compel the polygraph examination of one of the FBI Hostage Rescue Team operators who was at the scene of the Finicum shooting.
“The OIG encountered a significant issue regarding its access to information in this matter,” the report said.
After Astarita’s acquittal, the inspector general sought FBI approval to compel the polygraph of an unnamed HRT 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.
During its criminal investigation, the inspector general’s office had obtained FBI approval to compel polygraph exams of two other FBI Hostage Rescue Team agents who were present at the scene, the report said.
In its review of FBI policies, the inspector general’s office found the FBI had “no procedures, guidance, or best practices for identifying and removing sensitive items while maintaining the integrity of a crime scene.”
While there may be instances where FBI agents must remove dangerous items, it impairs crime scene investigations, Horowitz’s memo said.
The inspector general’s four recommendations, accepted by the FBI, are:
1. Update the FBI’s shooting incident policies to account for circumstances when the FBI participates in a law enforcement operation that leads to a shooting that doesn’t involve FBI agents using their guns, particularly when the FBI is working with state or local police outside of an FBI-led task force.
2. Analyze whether and under what circumstances FBI policies allow identifying and removing sensitive items from a crime scene, whether the crime scene is managed by the FBI or another police agency, particularly after an agent- or officer-involved shooting.
3. Develop guidelines for identifying and removing sensitive items, including appropriate documentation requirements and standards for involvement by agents involved in or witnesses to a shooting.
4. Train FBI Hostage Rescue Team and SWAT units to ensure that these standards are consistently followed.
The Astarita trial testimony had revealed that neither 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.
Testimony from state police and FBI agents showed 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 crime scene log wasn’t started until more than four hours after the shooting and the scene wasn’t taped off until about five hours later, testimony showed. Before the tape went up, the FBI infrared video showed unidentified FBI agents walking through the scene and picking things up, according to court testimony.
It also took time for investigators to arrive at the remote location. Some state police took a detour of more than two hours to avoid potential conflicts on U.S. 395, having been told militia members might arrive at the scene.
A Deschutes County sheriff’s detective described a 12-car police caravan responding from Bend, hampered by what he described as a mobile command center traveling slowly “like an old bread truck.” Investigators arrived on the scene about 1:30 a.m. Jan. 27, 2016. The shooting occurred at 4:34 p.m. on Jan. 26, 2016.
-- Maxine Bernstein covers federal court and criminal justice. Reach her at 503-221-8212, mbernstein@oregonian.com, follow her on X @maxoregonian, or on LinkedIn.
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