A federal judge has dismissed most of the civil claims brought in a wrongful death suit by the family of Robert “LaVoy” Finicium, the Arizona rancher who served as spokesman for the armed takeover of Oregon’s Malheur National Wildlife Refuge in early 2016.
Finicum, 54, was fatally shot by Oregon troopers after he crashed his truck near a roadblock as state police and FBI agents arrested key figures of the anti-government occupation.
U.S. District Judge Michael W. Mosman dismissed the suit’s claims against Oregon State Police, the former state police superintendent and the two state troopers who fired at Finicum.
He also dismissed all claims filed against the federal government, the FBI, Harney County and former Harney County Sheriff Dave Ward. He threw some out because the Finicum family didn’t properly serve notice to the defendants.
“After all this time, Plaintiffs have yet to identify any facts or theories that, properly pled, would support a finding that any negligence or wrongdoing on behalf of the United States was not grounded in policy judgments,” Mosman wrote in his opinion Thursday. His ruling accepted most of the recommendations of U.S. Magistrate Judge Patricia Sullivan made in July 2020.
Mosman kept alive a single civil rights claim against Gov. Kate Brown, noting that the state didn’t move to challenge it, and gave the plaintiffs until Sept. 15 to amend a conspiracy claim against the governor, the state of Oregon and state police.
Finicum’s family alleged he was shot “assassination style’’ by “one or more militarized officers of the Oregon State Police and/or FBI” as he was trying to drive across the Harney County line to seek the protection of Grant County Sheriff Glenn Palmer on Jan. 26, 2016.
The suit contended FBI agent W. Joseph Astarita fired at Finicum after he crashed and stepped out of his white Dodge pickup “with his hands in the air in a surrender position.”
The lawsuit followed an indictment against Astarita, who Oregon investigators alleged had lied about firing twice at Finicum’s truck. The investigators concluded that neither of the shots hit Finicum, finding that one hit the roof of his truck and the second shot missed. Astarita denied firing his rifle.
Seconds later, state troopers shot Finicum three times after he walked away from his pickup and reached for his inner jacket pocket, where police later said he had a loaded 9mm handgun, according to the investigation.
Mosman denied the challenge to the government’s handling of the arrests.
“Here, Plaintiffs take issue with the FBI operation that ultimately led to Mr. Finicum’s death. But an ‘undercover national security operation is a textbook example of discretionary action that Congress meant to insulate from judicial second-guessing,’” Mosman wrote in his opinion.
Finicum was shot in the left upper back, left shoulder and right lower back. A bullet pierced his heart, an autopsy found. An investigation by local law enforcement authorities found the state police shots that killed Finicum were justified.
A federal jury in August 2018 returned not guilty verdicts in the trial of Astarita, acquitting him on two counts of making a false statement and one count of obstruction of justice.
In a separate matter, the attorney for the Finicum family, Morgan Philpot, posted on his Facebook page that he was scheduled to go before the Utah Bar screening panel Thursday in Salt Lake City. He claimed in the post that the bar’s investigation into him was because he “dared” to defend Ammon and Ryan Bundy, who were acquitted of all charges in the Malheur occupation, as well as defend Ammon Bundy’s lawyer Marcus Mumford and Finicum’s widow Jeanette Finicum.
It wasn’t immediately clear what the Utah bar case on Philpot involves, but it may be related to the work of Rick Koerber, Philpot’s litigation consultant, according to the Salt Lake Tribune. Koerber allegedly claimed he had submitted an appeal notice to an Oregon court by a certain date, when Koerber had created the commercial delivery service and not officially registered it, according to the Salt Lake newspaper.
Philpot didn’t immediately return a phone message for comment.
— Maxine Bernstein
Email mbernstein@oregonian.com; 503-221-8212
Follow on Twitter @maxoregonian
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