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Regional Interests

Court dismisses lawsuit filed over police killing of Malheur occupation leader

A sweeping lawsuit filed by the family for a slain leader of the 2016 occupation of the Malheur National Wildlife Refuge has been dismissed, essentially bringing to a close the last major legal chapter around the historic event.

In an opinion entered Monday, U.S. District Court Judge Michael Mosman largely tossed out the claims filed by Jeanette Finicum, the widow of Robert LaVoy Finicum, who was killed by Oregon State Police on Jan. 26, 2016, while fleeing a traffic stop. LaVoy Finicum, a rancher from Arizona, joined Ammon Bundy and other armed anti-government activists in taking over the wildlife refuge for weeks.

A March 2016 investigation by several local law enforcement agencies deemed the shooting justified and “necessary.” Video taken by an FBI surveillance aircraft showed Finicum fleeing a traffic stop at more than 70 miles per hour before coming to a police roadblock and smashing into a snowbank. Video taken by a passenger inside the vehicle, as well as footage from the surveillance aircraft, show Finicum exit his pickup with his arms raised. Several times he told police. “you’re going to have to shoot me.” Investigators said Finicum had a loaded 9mm handgun in the left inside pocket of his jacket that he reached for three times before being shot by OSP troopers.

“Mr. Finicum chose to break the law,” Greg Bretzig, the then FBI special agent in charge of the refuge occupation response, said at a news conference in March 2016.

At the time, Finicum’s family decried the results of the investigation.

“I can hardly believe that a team of qualified law officers could look at the facts in this case and say that no criminal laws were violated,” Jeanette Finicum said in a statement after the shooting was deemed justified.

Finicum’s surviving family filed a lawsuit in 2018.

The complaint named federal agencies, like the Bureau of Land Management and the FBI, as well as law enforcement officers and elected officials, such as Oregon Sen. Ron Wyden and Gov. Kate Brown. The sprawling legal action also targeted an environmental nonprofit, the Center for Biological Diversity, and 100 “John Does” as “agents of the United States or the State of Oregon and acting under color of law and within the scope of his or her employment.” Governmental bodies in Harney County, the state of Oregon and the United States of America were also named in the lawsuit.

“These defendants were mentally predisposed and committed to using excessive lethal force, to solve a political dispute,” Finicum’s lawsuit stated. “The result has been both haunting and tragic.”

Attorney Morgan Philpot represented Jeanette Finicum in the yearslong action and did not return a request for comment.

In his 23-page order, Mosman adopted most of the findings and recommendations provided to him by Magistrate Judge Patricia Sullivan.

Mosman noted that many of the defendants have already been dismissed from the lawsuit. He grouped the remaining defendants into three categories, including federal, state and local defendants, before citing reasons for each dismissal.

Mosman’s justification ranged from defendants not being properly served, to claims falling outside the statute of limitations.

“In any event, the facts underlying this action occurred more than five years ago, this case itself is over three years old, and Plaintiffs have already filed three complaints,” Mosman wrote in dismissing the claims against the United States. “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.”

Throughout the case, Philpot routinely sought extensions with the court to present basic facts justifying the lawsuit.

In defending the state’s governor, the Oregon Department of Justice didn’t provide a justification for dismissing a deprivation claim brought against Brown, so that claim remains active. Mosman gave the state’s attorneys until Sept. 15 to file a brief as to why that claim should also be dismissed.

Jeanette Finicum, the widow of Robert LaVoy Finicum, filed a lawsuit in 2018 on behalf her her family over her husband's death.
Dave Blanchard /
Jeanette Finicum, the widow of Robert LaVoy Finicum, filed a lawsuit in 2018 on behalf her her family over her husband's death.

Copyright 2021 Oregon Public Broadcasting