Supporters of LaVoy Finicum and the militants built a memorial on the side of Highway 395, where Finicum was fatally shot by police on Jan. 26, 2016.

Supporters of LaVoy Finicum and the militants built a memorial on the side of Highway 395, where Finicum was fatally shot by police on Jan. 26, 2016.

Rob Manning/OPB

On Jan. 26, 2016, Malheur National Wildlife Refuge occupation spokesman LaVoy Finicum flew down a remote stretch of tree-lined highway in eastern Oregon. He was going more than 70 mph in his quad-cab pickup.

Those were the final moments of his life.

Finicum had just fled the FBI and Oregon State Police after a traffic stop where law enforcement tried to end the occupation by arresting the leaders.

“Gun it,” said Shawna Cox who sat next to occupation organizer Ryan Bundy in the back of Finicum’s truck. “Gun it!”

Ahead was an FBI roadblock.

“Hang on,” Finicum said.

“They’re shooting,” Cox said.

Finicum swerved off the road and into the snow, immediately jumping out of his truck.

“Go ahead and shoot me,” Finicum said.

Then two shots.

FULL COVERAGE

An Occupation In Eastern Oregon

Ongoing coverage of the federal case against the people involved in the 41-day armed occupation of the Malheur National Wildlife Refuge and how life has changed in Harney County, Oregon.

Those two shots will be the focus in the trial of FBI agent W. Joseph Astarita, which begins with jury selection Tuesday at federal court in Portland.

Federal prosecutors argue Astarita fired those two shots and then tried to cover them up. Astarita was a member of the FBI’s elite Hostage Rescue Team that manned the FBI checkpoint, along with Oregon State Police Troopers.

Though the two shots missed Finicum, seconds later the Arizona rancher was shot by OSP troopers and killed. Police say Finicum ignored their commands and attempted to reach for a handgun inside his jacket pocket.

The Indictment

Finicum’s death marked a turning point in the occupation; the beginning of the end.

Weeks after the shooting and the occupation was over, local law enforcement officials held a news conference in Bend, Oregon, where they announced the results of an investigation. They determined the shots taken by the Oregon State Police were justified and necessary.

But Deschutes County Sheriff Shane Nelson said during the course of their investigation, police discovered evidence that a member of the FBI fired two shots.

“Of particular concern to all of us is that the FBI HRT operators did not disclose their shots to our investigators, nor did they disclose specific actions after the shooting,” Nelson said in March 2016.

Surveillance video taken by an FBI airplane showed HRT agents appearing to pick things up off the ground at the crime scene. Federal prosecutors say all of the shell casings seen on the roadway after Finicum was shot disappeared.

The Deschutes County Sheriffs Office and the Department of Justice’s Office of Inspector General continued to investigate the two shots.

Last summer, U.S. Attorney for Oregon Billy Williams announced a grand jury indicted Astarita.

“Specifically, Special Agent Astarita falsely stated he did not fire his weapon during the attempted arrest of Mr. Finicum when in fact he did,” Williams said at a news conference.

At the heart of the case is law enforcement accountability.

“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,” Nelson said last June after the charges against Astarita were unsealed.

Astarita’s defense has stressed in court that the government’s case lacks eyewitnesses, ballistics evidence and video showing Astarita firing.

The government’s case largely relies on expert testimony and a recreation of the scene, which federal prosecutors say will clearly show Astarita is the only person who could’ve fired the two shots in question.

A Win For Bundy Supporters

For the so-called Patriot movement that supported the 2016 occupation, this is not a case about whether an FBI agent shot and lied. It’s bigger than that.

“They had to kill LaVoy,” said Nevada rancher and anti-federal government activist Cliven Bundy. “It’s not that they accidentally killed him or that he happened to be in the right position in the wrong spot, they had to kill LaVoy. LaVoy had a message out there that they didn’t like.”

Throughout the occupation of the Oregon wildlife refuge, Finicum was critical of the federal government, calling it overreaching and burdensome for many rural Americans.

Whether Astarita is convicted or acquitted, the Bundy family and their supporters will be able to use the outcome to amplify both Finicum’s message and his place as a martyr for their movement.

In many ways, Astarita’s trial is a no-win situation for the U.S. Department of Justice. If the agent is convicted, critics of the government can point to Astarita as a sign of corruption. If he is acquitted, conspiracy theories of a government cover-up will surely follow.

The only “win” here for the federal government is tepid: to convict one of its own at a time when the actions of federal law enforcement are being called into question at the highest levels.

Still, others say it’s important for law enforcement to police their own.

Portland criminal defense attorney Per Olson represented occupier David Fry during the first trial of the Malheur occupiers, which ended in acquittals for the Bundys and other ringleaders. Olson said it’s important for the public to know that officer involved shootings are not “sham” investigations.

“You could imagine a situation where this just gets swept under the rug and no one cares about an officer lying about whether he shoots or not because, after all, the officers who killed Mr. Finicum were justified in doing so, so who cares?” Olson said. “But it’s vitally important when the public hears the results of an investigation like this — that they know that the process has integrity and that you can’t lie.”

Olson stressed that Astarita is presumed innocent and entitled to due process.

“My question is where did those shots come from?” Olson said. “And I haven’t seen any other theory as to where those shots could’ve come.”