Evidence Of Multiple Illegal Acts
Against Finicum And Passengers
After almost 18 months of investigation, the Grand Jury has indicted one FBI agent, W. Joseph Astarita, for wrongful action related to the January 26, 2016 shooting of LaVoy Finicum. In contrast to this agonizingly long investigation, which is still pending as to the other FBI agents, the Grand Jury speedily indicted the Bundy et al defendants for the Bunkerville protest and the Malheur Refuge occupation. The rapid indictment of the Bundy et al defendants related to the Bunkerville protest, was based on the questionable testimony of Dan Love, among others.
With the indictment of the FBI agent, it is time to revisit the circumstances surrounding the stopping of the Finicum vehicle and the various evidences of illegal and unethical behavior on the part of government actors, both state and federal.
Deadman Road Blocks
Many people have visited the site of the shooting of LaVoy Finicum. Many have analyzed and attempted to recreate the conditions surrounding the location and logistics of the road block placed a couple of miles past the first stop. The results of these analysis’ reveal that the road block was illegal and not normal procedure used by other law enforcement entities across the USA.
Given the configuration of the road block that was used to stop LaVoy Finicum and his passengers, the road block has been designated an illegal “deadman road block”.
Here are the reasons for why the road block and the procedures used by the Oregon State Police, the FBI and other government actors, were illegal, unethical, immoral and indefensible.
Roadblocks Banned In Many Jurisdictions
“Violator may be boxed in only if officer reasonably believes there is substantial risk that violator will cause death or serious physical injury to others if apprehension is delayed. Ramming will be used only as last resort after all other reasonable means of stopping violator have failed, and where officer believes violator has committed, has attempted to commit, or is attempting to commit felony which involves use, or threatened use, of deadly force, and there is substantial risk that pursued law violator will cause death or serious physical injury to others if apprehension is delayed. Ramming a vehicle should be considered deadly force. Roadblocks shall not be used to stop violator.” St. Petersburg, FL
Roadblocks are broadly discouraged in most jurisdictions because they have been found to be more dangerous than helpful and because courts have usually found them to be a form of deadly force and a violation of the 4th Amendment unreasonable seizure provision.
Use Of Unmarked Vehicles, Ambush And Surprise
The purpose of a road block, if justified, is not to ambush, surprise, trick, deceive, con, or otherwise inflict bodily harm or property damage. Just the opposite, it is to provide every possible means for detaining individuals with the least amount of risk to the suspects, their passengers and the people who are detaining them.
Law enforcement officials (LEO’s) are required to use every possible method at their disposal to warn the approaching suspects of the road block ahead through the use of bright head lights and flashing lights, flares and warning signs to give the approaching suspects adequate warning to stop.
A review of the overhead aerial video supplied by the LEO will show unmarked cars with no flashing lights, other than a rear vehicle with flashing yellow lights on its camper shell. The front vehicles that are parked in a “V” shape fashion, have no flashing lights nor are the one truck’s headlights easily seen.
Additionally, the road block, located on a curve in the highway, was not easily visible until the vehicle was within seconds of crashing into the road block. The LEO had other options to locate the road block on a long, straight piece of the highway. Finicum was blocked from leaving the highway by deep snow banks so the element of surprise was unnecessary.
The LEO had obviously planned this event well in advance, with ample time to set it up, cut down tree limbs, stage vehicles and make other preparations including the placement of warning signs along the road well in advance of the site of the road block, if they had so chosen. However, no warning signs were placed anywhere in front of the road block. Nor was any mention of the road block made to Finicum by the LEO at the first stop in order to contribute to the warnings being given to him and to aid his decision making process.
A hard stop road block, such as used by LEO against Finicum, is known as a “deadman road block” because there are no means of escape, the only alternative being to crash into it and because it was setup to give as little warning as possible.
Given the height of the snow bank, many drivers may rule that out as an option and crash into the blocking vehicles instead. Furthermore, many drivers don’t have the skill or presence of mind to make the snow bank choice.
LEO’s claim that Finicum had the option to stop before hitting the roadblock. But as noted previously, replications of the conditions shows that he did not have time to stop nor did he have adequate warning.
Jurisdictions like Nassau County, New York recognize that “fixed” road blocks are rarely justified, Nassau County New York: “Fixed roadblocks, which block road to extent that little or no outlet remains are extremely dangerous and are rarely justifiable.”
Experts reason that it is better to allow the suspect to escape and later apprehend them through other means such as tire puncture strips. No tire puncture strips were placed in Finicum’s path that could have been the means for slowing him down and preventing the possible crash with the deadman road block.
“YOU Want My Blood On Your Hands?”
Finicum had no previous record of violence or of criminal activity. He never had a speeding ticket. There was no probable cause to believe he was a dangerous criminal on the loose and that a deadman roadblock was the only remedy. At the first stop he gave them two options: 1. Follow him to John Day and sort it out there with the local sheriff or 2. Shoot him. Not once did he say, explicitly nor implicitly, that he would shoot back but declared, “You want my blood on your hands?”. He did not threaten to shed their blood, but for them to shed his blood.
Finicum did not fit, even remotely, the rare justification where a deadman (no outlet) roadblock should be used.
“WHO Are You?”
In the Shawna Cox video, Ryan Bundy, disadvantaged by the unmarked vehicles and the plain clothed LEO, rightfully asked, “Who are you?”. LEO use marked vehicles and uniforms as a protection for civilians from impersonators and from vigilantes. Civilians are not required to pull over for an unmarked vehicle even with flashing lights until they are in a well lighted, and public area. People have been assaulted and raped by people with flashing light impersonating LEO.
They had every right to proceed to John Day as proposed by Finicum, to assure their safety and to be in the presence of uniformed LEO.
Even the roadblock ahead had unmarked vehicles and plain clothes personnel, hardly a protection from impersonators.
Road Blocks Are A Violation Of The Fourth Amendment
Abundant case law indicates that road blocks are often found by the court to be a violation of a person’s 4th amendment right to freedom from unreasonable seizure.
A list of cases showing the 4th amendment violations by roadblocks as they constitute unreasonable seizure are found in this link.
The Passengers, The Passengers, The Passengers
As tragic as the murder of Finicum was, it does not eclipse the horrific display by LEO of reckless disregard for the safety and welfare of the passengers. Roadblocks are a tool of last resort, especially when there are passengers.
As the Finicum truck rounded the curve, towards the road block, shots were fired at them. The Shawna Cox video shows that they acknowledged the shots being fired at them but no mention was made of the road block ahead. Finicum barely had time to say, “hang on” before plowing into the snow bank next to the road block.
The fact that the Finicum occupants never mentioned the road block indicates that their attention was distracted by the shots. Experts, who strongly discourage shooting at approaching vehicles, even calling it nonsense, claim that the shots distract the attention of the driver as he may duck below the dashboard, or as a dead or injured driver, cause an even worse crash.
Nassau County flatly prohibits use of firearms in a pursuit. A brief paragraph states both the rule and its rationale:
“Firearms should not be used in an attempt to stop a pursued vehicle. This applies to officers at roadblocks. as well as to pursuing officers. Fortunately, such action is rarely taken, because most officers realize it is extremely dangerous and ineffective. A car traveling at high speed with a wounded or dead person at the controls, would be far more dangerous than the pursuit, and a danger that none of us can justify.”
Under circumstances involving split seconds and with little time to assess a situation, how do officers make sound decisions about firing their guns at vehicles? The solution, says Wexler, executive director of the Police Executive Research Forum, is to never reach that point. Let suspects escape in their cars without confrontation, and “get a warrant.”
In the Finicum case, at least three lethal shots were fired at the truck with passengers inside, including two females, Shawna Cox and Victoria Sharp. Shawna Cox later told me that she and Victoria were supposed to ride with other people but, at the last minute, caught a ride with Finicum. She feels that, had they not been in the vehicle, Ryan Bundy and Ryan Payne would have also been assassinated.
Even with the females on board, it did not serve as a deterrent to LEO firing lethal rounds at the vehicle. Additionally, the so-called less than lethal rounds from gas rounds or rubber bullets can be lethal or cause serious injury.
Courts have found that innocent passengers who are caught in the crossfire or who are affected by a roadblock, can file a claim under the Fourth Amendment unreasonable seizure provision. Vaughan, 343 F.3d at 1329. 137. See also Jamieson v. Shaw, 772 F.2d 1205, 1209–11 (5th Cir. 1985) (holding a passenger was seized when vehicle collided with police roadblock).
Armed And Dangerous?
LEO has claimed that the passengers were known to be armed and dangerous, justifying the extreme actions they took. Where is the evidence to support that claim? Even after being shot at multiple times, there was no attempt by passengers to reach for, brandish, or touch a weapon in self-defense.
Ryan Bundy had a bullet in his shoulder, but never showed any hint of retaliating. The usual talk among dangerous criminals involves numerous “F bombs”, cursing and cussing, violent threats and ultimatums. But the Shawna Cox video shows none of that except for her reference to them as “A..holes”.
Where Are The Body And Dash Camera Videos?
Conspicuous is the absence of ground level video coverage of the Finicum incident, from the first stop until the body and truck are removed the scene.
The University of Oregon Police Department Operations Manual, which is consistent with and modeled after other Oregon police jurisdictions, contains many pages of instructions devoted to the subject of video and audio recordings.
Where dash cameras are not available, the personal body cameras should be used.
Over and over again, the operations manual stresses the importance of having a video record of the incident, the more serious the incident, the more compelling the need to have it recorded as evidence.
Given that video of police encounters are standard operating practice (SOP) in most jurisdictions, why are there no video recordings made by the dozens of officers and agents at the scene?
Here are some excerpts from the UOPD manual:
446.4.1 REQUIRED ACTIVATION OF MOBILE AUDIO VIDEO (MAV)
The MAV system should be activated in any of the following situations:
(a) All field contacts involving actual or potential criminal conduct within video or audio range:
1. Traffic stops (to include, but not limited to, traffic violations, stranded motorist assistance and all crime interdiction stops)
2. Priority responses
3. Vehicle pursuits
4. Suspicious vehicles
6. Vehicle searches
7. Physical or verbal confrontations or use of force
8. Pedestrian checks
9. DWI/DUI investigations including field sobriety tests
10. Consensual encounters
11. Crimes in progress
12. Responding to an in-progress call
450.5 ACTIVATION OF THE AUDIO/VIDEO RECORDER Officers should activate the recorder during all enforcement stops and field interview situations when MAV is not used and any other time the member reasonably believes that a recording of an on-duty contact may be useful. Once started, recordings should continue without interruption until the contact ends, if feasible.
814.5.1 COLLECTION OF DIGITAL EVIDENCE Once evidence is recorded it shall not be erased, deleted or altered in any way prior to submission. All photographs taken will be preserved regardless of quality, composition or relevance. Video and audio files will not be altered in any way.
The only explanation for lack of video and audio evidence, contrary to SOP by LEO at the scene, would seem to be intentional and for the purpose of controlling the narrative and escape consequences for their actions.
In the 240 years since a paranoid group of the nation’s founders, highly suspicious and mistrustful of government, gave us the constitution and the Bill of Rights, we have seen a steady erosion of the very principles that they wanted to give us. Government, instead of being a servant, has become a fearful master.
Government has given themselves special treatment, special status, special immunities from prosecution and special exemptions.
They committed all the violations enumerated above…because they can.
Particularly worrisome are the many conflict of interest elements in any kind of federal trial with charges against the government who planned and executed the Finicum incident. Conflict of interest where a federal judge works in unison with federal co-workers: prosecutors, public defenders, law enforcement agents, bureaucrats and officials, all representing the same team and the same interests.
For non-government citizens to get back their rights and even the playing field, non-traditional candidates need to run for office, who are honest and full of integrity, just like our founders were.