(Scene of the FBI and Oregon state police confrontation with refuge occupation spokesman Robert "LaVoy" Finicum on U.S. 395 on Jan. 26, 2016. / FBI video screenshot)

BY MAXINE BERNSTEIN

The Portland trial of an FBI agent acquitted in the chaotic highway confrontation that led to the collapse of the Malheur National Wildlife Refuge occupation revealed a series of dubious decisions and questionable police practices.

Both FBI agents and Oregon State Police officers used problematic tactics during and after what some witnesses described as a tumultuous and unexpected showdown at a roadblock on U.S. 395 in eastern Oregon.

Testimony in the trial of W. Joseph Astarita, a member of the FBI’s Hostage Rescue Team, disclosed shots fired in apparent confusion, an unusual delay in securing the crime scene and a supervisor and another officer giving updates on the investigation to one of the two state police officers who fired fatal shots that day.

The FBI’s Inspection Division will now do an administrative review of the agents’ actions and recommend improvements.

“They’ll identify weaknesses. They’ll identify mistakes, and they’ll take actions to correct them,’’ said Greg Bretzing, the FBI special agent in charge at the time of the 2016 shooting case. He has since retired.

State police wouldn’t comment on whether any changes to policies or practices have been made by the agency, citing a lawsuit by the family of Robert “LaVoy” Finicum, the 54-year-old occupation spokesman shot and killed at the roadblock. One of the state police SWAT officers who fatally shot Finicum was promoted since the shooting.

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(Refuge occupier Ryan Payne, on right, during the armed takeover of the Malheur National Wildlife Refuge./ Les Zaitz)

Among the issues:

-- Did an initial 40mm rubber bullet fired at surrendering refuge occupier Ryan Payne escalate the attempt to arrest the refuge occupation’s leaders?

An FBI agent seemed to think so. He cursed at the state police SWAT trooper, Bob Olson, who fired the round as Payne appeared to surrender when police first stopped the occupiers on U.S. 395 to arrest them.

Payne, a militia member from Montana and one of the architects of the January 2016 armed refuge takeover, was in the front seat of Finicum’s idling truck. He put his head and hands out of the truck window in what appeared to be an attempt to surrender.

FBI agent Justin Travis Elkins testified that he had his eyes trained on Payne and the state police officer's shot "was totally unexpected.''

Elkins heard another FBI agent, Tim Dugan, turn to the state police officer and yell, "WTF was that?!'' Elkins said Payne was following commands and the shot escalated the stop.

State police said Payne hesitated and was shot in the hand with the rubber round.

Payne then got out of the truck and was taken into custody. But Finicum sped off in his truck with three others in the back seat headed toward the roadblock about a mile north on the remote highway where more FBI agents and state police officers waited.

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-- A state police SWAT officer identified only as Officer 1 took three shots as Finicum’s truck raced toward the roadblock. He fired even though he acknowledged that he didn’t see the driver or passengers in the truck.

Though Officer 1 said he was supposed to be in a command role at the roadblock and directing others to act, he said he shot at Finicum's truck to get it to slow down or veer off.

On cross-examination, Officer 1 said he couldn't see into the truck.

One shot hit the front of the truck’s hood. Another hit the front grill. A third struck the driver’s side mirror.

FBI agent Astarita, in contrast, said he aimed his rifle at Finicum’s truck but didn’t shoot because he couldn’t see the driver or who was inside.

State police have kept Officer 1’s name secret, saying they fear he might face threats for the subsequent fatal shooting of Finicum. Officer 1 and a second state SWAT officer identified only as Officer 2 later shot Finicum in the back after he was seen reaching into his jacket where police said he had a loaded 9mm handgun in an inside jacket pocket.

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(U.S. 395 was blocked for several hours after the fatal police shooting of occupation spokesman Robert "LaVoy" Finicum. /Dave Killen)

-- Investigators didn’t 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.

It also took time for investigators to arrive to the remote location. Some state police took a more-than-two-hour detour to avoid potential conflicts on U.S. 395, having been told other 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 about 4:34 p.m. on Jan. 26, 2016.

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, FBI infrared video showed unidentified FBI agents walking through the scene and picking things up, according to court testimony.

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(Oregon State Police Superintendent Travis Hampton speaks at the Oregon U.S. attorney's office after the indictment of FBI Agent W. Joseph Astarita was announced./Stephanie Yao Long)

-- Travis Hampton, then a state police major and now head of the agency, communicated via text with Officer 1 in the days leading up to Officer 1’s first interview with detectives investigating the shooting.

A witness to the fatal shooting, state trooper Joey Pollard, was assigned to be Officer 1’s so-called “buddy’’ officer after the shooting. That meant Pollard drove Officer 1 back to Bend that night and continued to communicate with Officer 1 before and after his Jan. 31 interview. Pollard also drove Officer 1 and Officer 2 home after their initial processing at the Deschutes County Sheriff’s Office the night of the shooting.

Pollard had been in the tree line on the west side of the highway as Finicum stepped away from his truck in a snowbank. Pollard yelled commands at Finicum, initially aiming a handgun at him, but then switched to a Taser. Officers 1 and 2 both said they worried Pollard was in harm’s way.

Pollard also was present when a state police forensic scientist examined Finicum’s truck and a bullet hole to the roof. Pollard shared what he learned with Officer 1, according to trial testimony.

Most police agencies give gag orders to officers who are either involved in a shooting or witnesses to a shooting, requiring them not to communicate with other officers involved to avoid having them compare or share information that could affect their individual statements.

Officer 1 also wasn’t interviewed about his role in the shooting until five days after it happened.

Portland police require an officer to be interviewed by internal affairs within 48 hours of a shooting.

Los Angeles-based police consultants say the best practice is to interview an officer involved in a shooting the night of the incident. Delaying the interview negatively impacts investigations and undermines public confidence, according to Michael Gennaco, a former federal civil rights prosecutor who now leads The County of Los Angeles' Office of Independent Review, known as the OIR group.

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(Law enforcement officials gather in Bend for a March 2016 press conference, where they announced that the fatal Jan. 26, 2016, shooting of refuge occupation spokesman Robert "LaVoy" Finicum/Beth Nakamura)

-- State police went along with unusual demands by the FBI to interview the agents from the Hostage Rescue Team as a group and not record them.

Conducting a group interview of officers -- whether they fired shots or witnessed a shooting -- is unheard of, state police detective Scott Hill testified.

But Hill said he agreed to the ultimatum because he was afraid none of the agents would talk if he didn’t. Hill was part of a state task force, led by the Deschutes County Sheriff’s Office, investigating the shooting.

The reason given why an FBI supervisor demanded the group interview in February 2016 came out at the end of the trial.

In his closing argument, defense attorney David Angeli told jurors that the agents didn’t have legal representation with them since they were so far from home, FBI headquarters in Quantico, Virginia. They apparently wanted safety in numbers without a lawyer there.

But it’s likely that the Hostage Rescue Team agents consulted with a legal representative from the FBI Agents Association and could have had someone on the phone for any interview or flown out to help them.

“Had I known earlier there was a serious question about who shot and whether HRT agents were implicated, I would have involved the FBI’s Inspection Division for the benefit of all involved,’’ said Bretzing, Oregon’s FBI agent in charge at the time.

Investigators from the FBI’s Inspection Division wouldn’t have agreed to a group interview, he said.

The Hostage Rescue Team is reportedly considering requiring a legal representative travel with the team on its missions.

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(The truck refuge occupation spokesman Robert "LaVoy" Finicum was driving on Jan. 26, 2016 when he raced from a police stop and swerved into a snowbank to avoid a police roadblock on U.S. 395/ Deschutes County Sheriff's Office)

-- State police, ordinarily required to wear body cameras, agreed not to wear the cameras during the arrests of the occupation leaders to protect the identities of the FBI Hostage Rescue Team agents.

State police detectives also normally record interviews of officers who might be involved in a shooting.

However, they didn't the night of the shooting when questioning the FBI Hostage Rescue Team members, again at the FBI's request, or during the February interview of the agents.

No one testified why the FBI didn’t want their interviews recorded.

The FBI typically doesn’t record such interviews. If the FBI’s Inspection Division had done the interview, the federal investigator would write up a report of the agent’s statement, the agent could make changes and then swear that it was true, providing a signed sworn statement.

In this case, the Hostage Rescue Team agents had someone who wasn’t at the scene write a “communal’’ FBI report on what they saw or did that day.

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(Greg Bretzing, Oregon's FBI special agent in charge, at a March 2016 news conference, announcing the investigation into FBI Hostage Rescue Team agents)

-- Astarita and his colleagues on the Hostage Rescue Team each testified that they did a standard security items check, walking around the shooting scene to look for remnants of flash-bang grenades such as pins and other personal gear after Finicum was killed.

But a former head of the FBI’s training program for new agents -- who also trained Astarita in 2005 -- said nothing should have been moved at the shooting scene. And if it was moved for safety reasons, he said, the shooting investigators should have been told.

The investigators testified that they learned that FBI agents scoured the scene only after the fact by watching video from FBI planes monitoring the operation. Further, other flash-bang grenades and pins remained at the scene after the video caught the suspected agents bending down and picking things up at the scene, according to trial testimony.

Bretzing, Oregon’s head FBI agent at the time, testified that the search was unusual and concerning.

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(The bullet strikes to Finicum's truck / Court exhibit)

-- Shooting investigators could find only two shell casings of eight shots fired at the roadblock. And the FBI didn’t turn over their guns for immediate examination.

Both of those things hampered the investigation, prosecutors said.

Had an FBI agent fired his rifle that day, the agent is required to alert a supervisor, who would call out the bureau’s Shooting Incident Response Team to investigate, seize the weapon and conduct a full inquiry into the shooting.

None of the agents’ rifles were immediately examined by the FBI or the shooting investigators because none of the agents said they fired that night.

After the shooting investigators found an unaccounted-for bullet hole in the roof of Finicum’s truck, FBI supervisors again asked all the Hostage Rescue Team agents if they had fired any rounds.

Astarita and his boss who was also at the roadblock, supervisory agent B.M., said they independently examined their own rifles in their 10-person tent at the tactical operations center at Burns airport a day or two after the shooting. They didn't find anything unusual to report, they testified. B.M.'s identity also was shrouded because the FBI said he was on active duty with the Army Reserves, involved in special operations.

Astarita was acquitted on charges that he lied when he denied taking two shots at Finicum’s truck at the roadblock after it crashed into a snowbank. One bullet hit the roof of the truck and the other missed as Finicum got out of the truck with his hands up at the roadblock, investigators said. No one has acknowledged taking the shots.

Officer 1 fired three times at Finicum’s truck as it bore down on the roadblock and then two shots that struck Finicum when he walked away from the truck. Officer 2 fired one bullet that hit Finicum.

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(FBI tactical gear/ FBI)

-- FBI supervisory agent Mike Ferrari testified that the FBI recently has standardized how its SWAT operators load their rifle magazines. They now must put in 28 bullets.

Ferrari said the change didn’t stem from this case but because of a number of incidents throughout the FBI. He did not explain what those incidents involved.

In this case, none of the FBI’s rifles were examined by investigators the night of the shooting.

The number of rounds initially loaded into Officer 1’s rifle became a point of contention during the trial. The defense argued Officer 1 could have taken the two disputed shots; Officer 1 said he loaded his rifle magazine with 29 bullets and 24 were remaining, confirming his account that he fired five shots that day and not the two disputed rounds. The defense countered that Officer 1’s rifle capacity is 31 bullets.

--Maxine Bernstein

mbernstein@oregonian.com

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