Dr. Jamie Skillen
Like many of you, I am still scratching my head over the surprising news last week that Ammon Bundy, Ryan Bundy, and five others were acquitted of all charges stemming from their occupation of the Malheur National Wildlife Refuge in January and early February of this year. When the case started last month, it seemed like a foregone conclusion that the jury would find them guilty. They freely acknowledged that they had occupied buildings at the wildlife refuge and that they had brought firearms to ensure that federal law enforcement officials couldn’t easily arrest them; and the prosecution had a solid wall of evidence, including extensive posts that the defendants had made on social media. So how could the jury have returned a “not guilty” verdict in this case, and more importantly, what implications will this verdict have for federal lands in the West?
There are at least two ways to explain the verdict, and perhaps additional information from jurors will suggest other possibilities. One explanation is that the jury in fact believed that the defendants were guilty but chose to acquit them anyway. Perhaps Ammon Bundy’s impassioned testimony was so moving that the jury decided that the law should not apply to him. Cases like this, referred to as jury nullification, happen, but they are rare; and at this point, there simply isn’t any solid evidence to support this explanation. Indeed, the first juror to speak to the press on Friday night explained that a verdict of “not guilty” was not the same thing as declaring the defendants innocent.
Without evidence of jury nullification, it seems more likely that the verdict stems from the specific charges federal prosecutors selected for trial. Presumably, if the defendants were on trial for all of their actions (trespassing, destruction of government property, disruption of federal land management, etc.) the jury would have found them guilty of at least some charges. After all, the defendants admitted that they were engaged in an act of civil disobedience, defying federal authority in order to draw attention to some larger injustice.
But the federal government chose to prosecute the defendants primarily for two specific violations. The federal indictment charges that the seven defendants conspired “to prevent by force, intimidation, and threats, officers and employees of the United States Fish and Wildlife Service and the Bureau of Land Management . . . from discharging the duties of their office at the Malheur National Wildlife Refuge,” and that they “did knowingly possess . . . a firearm or dangerous weapon in a federal facility . . . with the intent that the firearm or dangerous weapon be used in the commission of a crime.” The jury could have been convinced that the defendants had engaged in illegal activities but that they had not conspired to do so according to the terms that the prosecution outlined. And if the defendants had not conspired to impede federal employees, while clearly impeding them, then they could not be found guilty of possessing firearms for the purpose of advancing a criminal conspiracy. A loaded analogy would be a case in which a defendant is found not guilty of 1st degree murder, despite having murdered someone, because the prosecution could not convince the jury that the crime had been premeditated.
Several defendants, it should be noted, faced additional charges, and the jury verdicts in for these is even harder to understand. For example, Kenneth Medenbach was arrested after he took a government vehicle from the refuge, clearly without authorization, and his primary defense was that he was just borrowing it and intended to return it. How the jury acquitted him of a theft charge is difficult to imagine, but perhaps more information if jurors come forward till make this clear.
With the verdict delivered, though, the more important question becomes what this case will mean for federal lands in the West. A number of states, such as Utah, have passed legislation challenging the federal governments’ authority to own vast tracks of land and demanding that those lands be turned over to the states. Utah even has millions of dollars in the state budget to litigate federal land ownership. While I don’t believe Utah has any legal claim, the state is at least using constitutionally established means of challenging federal authority. The Malheur occupation reflects this same resentment of federal land management, in this case expressed through direct and potentially violent rebellion. Ammon and Ryan Bundy remain in prison because they will be tried in Nevada on conspiracy charges stemming from an armed confrontation with Bureau of Land Management officials in 2014. Some of you may remember the video of Ammon Bundy being tasered by BLM officers after he kicked a police K-9 and the pictures of armed Bundy supporters pointing weapons at federal officers.
One possibility of last week’s verdict, of course, is that it will embolden others to choose armed confrontation with federal land management employees rather than the constitutionally protected path of legal challenge that Utah is pursuing, and that poses a clear and present danger to the rule of law in the American West. A growing number of people taking up arms, supported in some cases by sitting elected officials, could hold federal lands hostage, and this is exactly what Ammon Bundy was trying to do. As he explained in his trial: “Without the guns, they would have come out in a paddy wagon and put us in zip-tie handcuffs. We would never have been able to tell people why we were there.” In other words, he said, the threat of bloodshed at the Malheur Refuge allowed the protesters to hold these federal lands hostage long enough to make their political statement.
This is particularly troubling when compared to the ongoing conflict in North Dakota over the Dakota Access Pipeline. There, protesters occupied private land being used for the pipeline, which they argue could desecrate Native American burial sites and contaminate drinking water. These protesters were also engaged in acts of civil disobedience that violated various laws. They trespassed on private land; they blocked a highway with burning vehicles; etc. They were not generally armed, however, and they did not promise to defend themselves with weapons if the police tried to remove them. What happened? State police, county police, the North Dakota National Guard, and a private security team physically removed them from the land and arrested more than 140 protesters. As with any story, there are complexities beneath this quick summary, but one could still draw a disturbing and dangerous lesson from it: come armed, and you will have time to plead your case and possibly escape punishment; come unarmed, and you will be removed by overwhelming force.
While I am thinking primarily of federal lands management, this potential lesson has implications in other contexts as well, particularly the current presidential election, where Donald Trump has called the election rigged, and a number of his supporters have threatened civil unrest if Hillary Clinton is elected president. The Oregon verdict won’t make people take up arms if Ms. Clinton is elected, but it certainly gives them reason to hope that they too might be acquitted if they decide to take over federal buildings in protest.
Looking ahead to 2050, it is clear that federal lands will remain controversial in the West. As geography John Wright argues, land tenure is “the spatial musculature of the American West,” and people there “do not believe in map colors.” And disagreement and controversy is not itself a problem; indeed, a good disagreement can be a real moral achievement. The hope, then, is that we can disagree over federal lands in the west in ways that reflect the virtues on which a healthy democracy rests rather than resorting to weapons, threats of violence, and brute force. Hopefully the justice system will send a clear message to this effect in the Bundys’ upcoming trial in Nevada.
Author: Dr. Jamie Skillen