By Maxine Bernstein
The Oregonian
PORTLAND, Ore. — A state prosecutor was clear Tuesday that Oregon troopers who fired a total of six shots in a standoff with Robert “LaVoy’’ Finicum on Jan. 26 were justified under state law.
An ongoing investigation will determine whether two other shots apparently fired by an FBI agent complied with state law and federal policy.
Malheur County District Attorney Dan Norris pointed to a state statute that essentially says police in Oregon can use deadly force to protect themselves or others against imminent danger or the threat of such danger.
The state law follows a U.S. Supreme Court ruling, Graham v. Connor. In it, the court said that a justified shooting should be based on whether officers’ actions are “objectively reasonable” under the circumstances confronting them without regard to underlying intent or motivation.
The “reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, and must allow for the fact that police officers are often forced to make split-second decisions about the amount of force necessary in a particular situation, the court said.
Finicum used his pickup as a “dangerous weapon” when he drove it toward a police roadblock on U.S. 395 north of Burns on Jan. 26, Norris said.
Federal agents and state police had moved in to arrest the leaders of the armed takeover of the Malheur National Wildlife Refuge as they were headed to a community meeting in John Day.
Oregon law defines a dangerous weapon as something “readily capable of causing death or serious physical injury,” said Norris, who was asked to review the investigation of the shooting in Harney County.
A state trooper who fired three times at the approaching truck believed that Finicum, driving about 70 mph, intended to “injure or kill the people present” at the roadblock, Norris said. In a video released by the FBI, a member of the FBI’s Hostage Rescue Team is seen diving out of the way of Finicum’s truck.
“Under these circumstances, these three shots are justified,” Norris said at a news conference.
In Oregon, the state police academy trains officers that they can shoot at a moving car if it’s about to cause deadly harm or serious injury by hitting an officer or someone else, said Todd Anderson, training director for Oregon’s Department of Public Safety Standards and Training and former Tillamook County sheriff.
“They’re trained to neutralize the threat’’ – which means shooting the driver, Anderson said.
Two state troopers shot Finicum three times after he emerged from the truck. He had reached three times toward a loaded gun in his jacket pocket, investigators said. Finicum died when one of the shots pierced his heart, the autopsy showed.
The troopers also were justified in using deadly force at that point in the confrontation, Norris said.
Both of the troopers who shot Finicum said they believed he was reaching for a handgun and about to use deadly force against them or another trooper standing in a snowbank aiming a Taser at Finicum, Norris said.
The investigation led by the Deschutes County Sheriff’s Office also revealed that an FBI agent had fired twice from the roadblock, one bullet going astray and one hitting the roof of Finicum’s truck.
The sheriff’s office and the U.S. Department of Justice’s Inspector General’s Office are now examining whether those shots followed state law and FBI policy.
It appears that the agent fired at Finicum as soon as Finicum emerged from his pickup, investigators said.
“Of particular concern to all of us is that the HRT (Hostage Rescue Team) operators did not disclose their shots to our investigators or their superiors,” Deschutes County Sheriff Shane Nelson said in a statement. “Nor did they discuss specific actions they took after the shooting, which are the subject of an ongoing investigation.’'
One of the questions expected to come up as detectives work to sort through what happened is: Does a threat remain that justifies deadly force when a moving car stops and the person or persons in danger may be out of harm’s way?
FBI agents did not disclose two shots, says Deschutes County Sheriff At a press conference on Tuesday, March 8, 2016, Deschutes County Sheriff Shane Nelson, Malheur County District Attorney Tim Colahan and FBI special agent in charge Greg Bretzing spoke about the failure of FBI agents to disclose two shots fired during the attempted arrest of LaVoy Finicum on January 26. Neither shot hit Finicum.
In this case, Finicum raced toward a roadblock set up by state police and the FBI and narrowly missed hitting an FBI agent with his truck before he crashed into a snowbank, video from the scene indicates.
LaVoy Finicum: “Just shoot me. I’m going to meet the sheriff” This is an excerpt from the FBI video released March 8, 2016 that merges audio from cell phone video taken by refuge occupier, Shawna Cox, with aerial footage taken by the FBI. The full video is 12-minutes long.
“There’s so many could be, would be, should be’s – such as did they think the driver was armed or did the driver jump out making furtive movements,’' Anderson said. “If the vehicle stopped, then you’d have to show the operator is still a threat to your or someone else’s safety.’'
Videos show LaVoy Finicum shooting was justified, say authorities Deschutes County Sheriff Shane Nelson gave a video presentation and analysis of video of the LaVoy Finicum shooting at a press conference on Tuesday, March 8, 2016. Malheur County District Attorney Dan Norris said that the six shots fired by OSP officers, three of which hit Finicum, were all justified. Two additional shots, believed to have been fired by FBI agents, did not hit Finicum but are still under investigation.
Investigators will ask the FBI agent if he considered Finicum a threat once the occupation spokesman left his truck.
FBI agents and state police were briefed ahead of time that Finicum could be armed because he often carried a gun on his left side shown in photos and videos from the refuge. Finicum was found with a loaded 9mm handgun in his jacket pocket after he was shot, the FBI said.
“We will take a look at whether his (the FBI agent’s) use of force was justified, Sheriff Nelson said at the news conference, just as his investigators did with the state troopers’ shots.
FBI agents, like state police, are trained to treat cars as deadly weapons if they feel they or others’ lives are threatened.
Federal agents also are expected to report any shots that are fired, retired FBI experts said.
Though Greg Bretzing, the FBI’s special agent in charge in Oregon, wouldn’t comment if the FBI has removed the agents under investigation from active duty, other FBI experts said it would be a common practice to put them on paid leave pending the outcome of an inquiry.
While shooting at a moving car may be constitutional and legal under state or federal law, it could violate a police agency’s own policies. The issue has been a subject of debate in Oregon and nationally.
Many police agencies have counseled against firing at a moving car except under extreme conditions, such as no reasonable escape. The reasoning is that shots can go far afield and hit innocent bystanders. Or if the driver is killed, the car could careen out of control and risk injury to others, according to the International Association of Chiefs of Police.
Portland police, for example, in 2009 changed their policy to prohibit officers from shooting at moving cars except under specific circumstances: “to counter an active threat of death or serious physical injury to the officer or another person, by a person in the vehicle, using means other than the vehicle,” or there’s no other way to avert or eliminate the threat.
Copyright 2016 The Oregonian