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Judge tosses most claims in Malheur occupation death suit

PORTLAND, Ore. (AP) — A federal judge has tossed most of the civil claims brought in a wrongful death lawsuit by the family of an Arizona rancher who served as spokesperson for the armed takeover of Oregon’s Malheur National Wildlife Refuge in early 2016.

Robert “LaVoy” Finicum, 54, was fatally shot by Oregon state troopers after he crashed his truck near a roadblock as state police and FBI agents arrested key people in the antigovernment occupation.

U.S. District Judge Michael W. Mosman on Thursday dismissed the lawsuit’s claims against the Oregon State Police, the former state police superintendent and the two state troopers who fired at Finicum, The Oregonian/OregonLive reported.

Mosman additionally dismissed their claims filed against the federal government, the FBI, Harney County and former Harney County Sheriff Dave Ward. Some were thrown out he said 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. His ruling accepted most recommendations that U.S. Magistrate Judge Patricia Sullivan made in 2020.

Mosman retained 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" as he was trying to drive to the safety of another county on Jan. 26, 2016.

The lawsuit contended FBI agent W. Joseph Astarita fired at Finicum after he crashed and stepped out of his Dodge pickup “with his hands in the air in a surrender position.”

The lawsuit came after an indictment against Astarita that alleged he had lied about firing twice at Finicum’s truck. Oregon investigators concluded that neither of the shots hit Finicum. Astarita denied firing his rifle.

State troopers shot Finicum three times after he walked away from his truck and reached for an inner jacket pocket, where police later said he had a loaded 9mm handgun, the investigation said.

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.

An investigation by local law enforcement authorities found the state police shots that killed Finicum were justified.

A federal jury in 2018 returned not guilty verdicts in the trial of Astarita, acquitting him on making a false statement and one count of obstruction of justice.