Family of Robert “Lavoy” Finicum files wrongful death lawsuit

Katie Aguilera

Two years after Robert “Lavoy” Finicum was shot and killed by Oregon State Police officers on Highway 395 in Harney County on January 26, 2016, the Finicum family has filed a wrongful death lawsuit against a slew of defendants.  These include the United States, FBI, BLM, Oregon State Police, Harney County, a number of officials from those agencies, the Center for Biological Diversity, and 100 ‘John Does,’ among others.

The lawsuit was filed Friday, January 26, 2018 by lawyers Lisa Ludwig and J. Morgan Philpot in US District court in Pendleton, Oregon.

The 48-page complaint states, “the murder of LaVoy was plainly unlawful under rights guaranteed by the United States Constitution and also…unlawful under other laws of the United States and the laws of the State of Oregon.  It was the result of a brutally deliberate course of action willfully set in place and caused by a small selection of county, state, and federal officials who are named as defendants in this lawsuit.  These defendants were mentally predisposed and committed to using excessive lethal force, to solve a political dispute.”

It goes on to describe the events that led to the shooting of Finicum on January 26, 2016, beginning with the Bunkerville, Nevada standoff in April, 2014.  It claims that Finicum was intentionally targeted because of his association with Cliven Bundy and family, his membership in the Church of Latter-day Saints, and his “political views and statements regarding land rights and federal government overreach—specifically, his consistent political activism and statements that were critical of the BLM.”

The complaint claims that law enforcement and the BLM deliberately mischaracterized Finicum as being a threat to law enforcement and government employees by willfully participating in the “spreading of false and maliciously inaccurate information.”  It goes on to state the BLM and FBI kept an active file on Finicum, and that “Defendant Love [Former BLM employee, Daniel P. Love] and other John Doe defendants fabricated information, edited, omitted, or reported misleading information from this file, and added misleading information to this file, for the purpose of intentionally creating the false impression that LaVoy Finicum was associated with militia and presented a risk of violence to law enforcement…”

This misinformation, according to the lawsuit, “contributed directly to the subsequent shooting death of LaVoy Finicum.”

Also in the complaint are details about the January 2, 2016 occupation of the Malheur National Wildlife Refuge in Harney County, Oregon by Finicum and others.  It states a meeting took place on January 2, 2016, between Ammon Bundy and others, discussing Bundy’s plan to move the protest to the Refuge in an attempt at “adverse possession.”  According to the complaint, this meeting was openly attended by a Harney County deputy sheriff.

The complaint alleges that the defendants worked to control the narrative in order to keep the adverse possession claim out of public discourse.  It states, “these defendants ignored legal advice and counsel that suggested that the appropriate course of action would be legal notice and possible trespass charge—by local law enforcement and local civil court actions.  These same defendants also ignored advice from local legal authorities, that no law had been broken by the attempted adverse possession.”

“Instead, Defendants…willfully decided to fight a public political battle, and demanded that the FBI, BLM, and DOJ take the lead and bring the occupation to a close by force.”

It goes on to point out that there were never any eviction notices or complaints of trespass during the occupation of the Refuge.  Also, that as of January 26, 2016, “there was no criminal complaint, no probable cause affidavit, no federal indictments, or any other formal proceeding to inform—let alone argue—that LaVoy Finicum or any other occupier was being accused of breaking the law.”  This includes the time of the initial January 26, 2016 traffic stop and subsequent roadblock, where Finicum was shot and killed.

The lawsuit claims that Oregon State Police and FBI agents executed a “deadman’s roadblock” in violation of police procedure and the Constitution on January 26, 2016.  It states, “the roadblock had been strategically placed so as to prevent it from being visible until impact was a near certainty for any vehicle traveling at posted speeds.”

The complaint also discusses the actions of FBI agent W. Joseph Astarita during the roadblock, who is currently facing charges for his alleged attempt to cover up the fact that he allegedly fired his weapon twice after Finicum crashed into the snowbank to avoid the roadblock.  It claims that one of these shots resulted in the wounding of Ryan Bundy, who still has a piece of metal in his shoulder that may or may not be a bullet or bullet fragment.

The shooting of Lavoy Finicum was ruled as justified by Oregon officials.  The officers involved stated that Finicum was reaching into his jacket pocket which they say they later found held a loaded pistol.  Video of the shooting shows Finicum exit his truck with his arms up, however, as he moves away from the truck he drops his arms twice, and before he is shot three times, he appears to reach for his side.

Early in the occupation of the Refuge, in an interview, Finicum had said, “I’m not going to end up in prison.  I would rather die than be caged.  And I’ve lived a good life.”

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Oregon Stand Off Trial Verdicts Are In

The verdicts are in this afternoon for the seven defendants on trial in Portland for their roles in the occupation of the Malheur National Wildlife Refuge earlier this year.  The verdicts are as follows:

Ammon Bundy, not guilty on all counts

Ryan Bundy, not guilty on conspiracy charge, not guilty on firearms charge, no verdict on theft of property charge.

Jeff Banta, not guilty on all charges

Shawna Cox, not guilty

Ken Medenbach, not guilty on all charges

David Fry, not guilty on all charges

Neil Wampler, not guilty

After Questions of Bias Arise, Juror Dismissed in Oregon Stand Off Trial

Yesterday in the trial of seven defendants accused of conspiring to impede federal employees from doing their jobs after the January 2, 2016 occupation of the Malheur National Wildlfe Refuge, the jury sent questions to the judge.  One of those questions, hand written in all capital letters, was:

“Can a juror, a former employee of the Bureau of Land Management, who opens their remarks in deliberations by stating, ‘I am very biased…’ be considered an impartial judge in this case?”

The defense asked for the juror to be dismissed.  Judge Anna Brown met with the juror and the attorneys and decided she would not immediately dismiss the juror.  She gave the attorneys until 9am today to present case law to support the argument to dismiss the juror.  This is an unusual development, and has resulted in a flurry of discussion and speculation from all sides on how it will effect the trial.

Ammon Bundy’s defense lawyer, Marcus Mumford, filed a motion  to dismiss the juror this morning.  Many reporters in the court room tweeted that Judge Brown stated, “there is not a way forward that is not fraught with risk.”  Judge Brown asked that all parties agree to dismiss the juror on ‘good cause’ and she had a replacement juror chosen from a cup in preparation.  She said if the prosecution did not agree to dismiss the juror, she would hear oral arguments on the motion to dismiss.

Meanwhile, the jury continued to deliberate.  Judge Brown said if they reached a verdict while the court was deciding whether or not to dismiss the juror it would be yet another problem.

Finally, the prosecution agreed to dismiss the juror. The judge informed the jury that she had determined that juror 11 needs to be excused in the interest of justice, and that everyone would be back in court tomorrow morning for another round of jury instructions.  She told the jury they will have to set aside the conclusions they had already come to and start over.

 

FBI Agent Testifies of Advance Warning of Malheur Wildlife Refuge Takeover Plan

According to testimony given by FBI Agent Chadd Lapp in the ongoing trial of seven defendants charged with conspiring to impede federal officers from fulfilling their duties as a result of their occupation of the Malheur National Wildlife Refuge that began January 2, 2016, the FBI received advanced warning of the plan on January 1, 2016.  It has been acknowledged during the trial that there were informants at the refuge during the occupation.

On Wednesday, September 28, 2016, Agent Lapp testified that on January 1, one day before the planned rally supporting the Hammonds, FBI agents learned there was a plan to take over the refuge.   Maxine Bernstein wrote in the Oregonian on September 29, 2016:

“Lapp said he heard the information from another agent. Ammon Bundy’s lawyer Marcus Mumford referred to an email sent to the chief regional refuge law enforcement office that he said made mention of ‘intelligence from four people within the militia about a plan to take the refuge.’

‘I remember telling him there was intelligence. It was a potential target,’ Lapp said. ‘It was really basic words…Malheur…wildlife refuge, and there may be a plan to take it.’

Under questioning from Mumford, Lapp said he conveyed the intelligence to several people in his office, but didn’t do anything further with the information.”

That nothing was done to prevent this plan, even with the short notice, is surprising given the testimonies made previously by Harney County Sheriff Dave Ward and Chad Karges, the manager of the Malheur National Wildlife Refuge, who both spoke of taking preventative measures prior to the January 2 rally.

Sheriff Ward testified earlier in the trial that after several meetings with Ammon Bundy prior to the January 2 rally and numerous emails, warnings, and his own research into what had happened at Bunkerville, Nevada in 2014, he prepared by moving the inmates from his jail in Burns, Oregon to the next county.  He added that he moved all of the weapons and ammunition to the jail, which could serve as a fortified bunker should something happen during the January 2 rally.

Chad Karges testified that “he made the decision to keep employees away after New Year’s Day because of the ‘continued intimidation and threats towards federal employees,’ ‘type of arms that they had,’ and the ‘type of stand they were taking.'”  Defense Attorney Lisa Maxfield asked Karges why no security was placed at the refuge before the rally, Karges answered, “at that time, federal agencies were being told the threat was towards the BLM, and the refuge hadn’t entered into the conversation.”

If the FBI had received information a day in advance of the takeover of the refuge, as Agent Lapp testified yesterday, why indeed weren’t steps taken to increase security at the refuge?  Clearly law enforcement and federal employees were concerned in the months leading up to the Hammonds returning to prison and the January 2 support rally.  Considering that, and the stand off that had occurred in Nevada nearly two years before, why would such a warning not be taken seriously?

With the well-known presence of the Bundys and the others who joined them in taking the refuge, as well as that of the Pacific Patriots Network and other “militia” groups in Burns, Oregon, for the support rally for the Hammonds, I find it difficult to believe there was a shortage of law enforcement in Harney County on January 1, 2016.  Why then was there no law enforcement presence placed at the Malheur National Wildlife Refuge on January 2, 2016 after the FBI received warning of the planned occupation?

 

 

 

Man Arrested After Attempting To Bomb BLM Facility in FBI Sting Operation

Yesterday, June 22, 2016, the Federal Bureau of Investigation arrested William Keebler in Nephi, Utah, after he allegedly attempted to detonate a fake bomb they had provided him with.  Keebler was present in Bunkerville, Nevada in 2014, at the Bundy ranch and apparently at the stand off between Bundy supporters and the BLM on April 12, 2014.  He is described as the leader of a citizen militia group, the Patriots Defense Force.

The felony complaint document states that Keebler was an associate of Lavoy Finicum, the Arizona rancher killed by law enforcement at a roadblock in Oregon during the occupation of the Malheur National Wildlife Refuge earlier this year.

According to the felony complaint, the FBI had had undercover officers inside the Patriots Defense Force, acting as members and participating in various training exercises with the militia group, for several months.  The felony complaint describes several meetings over that time period in which Keebler discussed “going on the offensive” and “gathering intelligence on potential targets.”  One such meeting is described as follows:

On March 19, 2016, Keebler organized and led an FTX [field training exercise] for the PDF militia group.  Keebler described the direction the PDF was going to focus on.  Keebler said the government had been allowed to harass people, but the repercussions were going to start.  Keebler had previously said the BLM was overreaching their authority to implement grazing restrictions on ranchers.  Keebler had opined the land belonged to “the people” and could be used responsibly at the American people’s discretion.  Keebler said the PDF was going to target BLM facilities in the “middle of nowhere.”  Keebler stated the PDF was going to sneak in and severely damage vehicles or buildings.  Keebler requested a PDF member/UCE [FBI undercover employees] who has explosive materials expertise, to build an explosive device that could disable a BLM vehicle or damage a building.  Keebler made it clear he didn’t plan on blowing people up for now, but he wanted his group to be prepared to escalate things, and take people out if necessary.

On May 14, 2016, Keebler announced to the group that they would target a BLM facility at Mount Trumbull, Arizona and requested two bombs be built by the UCE, one to place at the facility to be remotely detonated, and the other for use in case they were stopped by law enforcement on the way to or from the BLM facility.

According to the felony complaint, Keebler had previously scouted the Mount Trumbull facility in October, 2015, with Lavoy Finicum, accompanied by an FBI undercover employee who took pictures of the facility.

On June 21, 2016, one of these devices was “placed against the door of one of the BLM cabins in Mount Trumbull [Arizona].  After the device was placed against the door, Keebler was handed a remote detonation device.  Keebler then pushed the detonator button multiple times in order to remotely detonate the inert explosive.”  Keebler was arrested the following morning after he had returned to Utah.

This calls several things into question for me.  First of all, who placed the bomb next to the door of the BLM cabin?  Who handed the detonator to Keebler?  Was it entirely Keebler’s idea and decision to bomb a BLM facility?  It wouldn’t be the first time the FBI has stopped  a crime that they helped to plan.

One example that most of my fellow Oregonians probably remember is the case of Mohamed Osman Mohamud who was arrested in Portland, Oregon, in 2010 for attempting to detonate a fake car bomb at a Christmas tree lighting ceremony.  The FBI had provided him the bomb after encouraging the plot.

In a September 18, 2011 Los Angeles Times Op ed, Petra Bartosiewicz writes:

The government’s marquee post-9/11 terrorism investigations, including cases such as the Miami Seven, the Ft. Dix Six and last year’s Portland Christmas Tree Bomber, have not involved real attacks but, rather, have been sting operations involving plots invented by law enforcement. New York University’s Center on Law and Security, which tracks federal terrorism prosecutions, reports that since 2009, the FBI has escalated its use of stings in which a confidential informant or undercover officer approaches a suspect and “assists him in the planning of an attempted terror crime.”

The defendants in these plots, most of them male Muslim immigrants with no history of terrorism or violence, have become unwitting actors in a disturbing theatrical performance: The FBI scripts the plot and provides the weapons, along with money, cars and any other logistical support needed to carry out the “attack.”

She goes on to discuss the argument that only the “true bad guys will take the bait” in such sting operations by stating, “terrorism stings go much further than presenting a likely bad guy with a passing criminal opportunity. The operations last for months and sometimes years, with suspects offered all manner of enticements to participate in a plot they probably would never have come up with on their own.”

I suppose that we should all feel so much safer as the FBI is so effective at stopping their own plots.  Even though they were unable to stop Omar Mateen from killing 49 people in Orlando, Florida in spite of the fact that the gun dealership where Mateen requested a thousand rounds of ammunition and body armor reported concern about him to the FBI weeks before the shooting.  And this after Mateen had previously been on the terrorist watch list and under intense investigation in 2013-2014.

Even though they seem unable to stop armed wildlife refuge “take overs” in spite of their success, as demonstrated in this case with Keebler, at infiltrating groups associated with those who did occupy the Malheur refuge.  Clearly all the surveillance and infiltrating works wonders.

UPDATE, June 29th, 2016:  According to this Salt Lake Tribune article published today,  “Lavoy Finicum did not accompany Keebler when he scouted the BLM cabins in October 2015, as was alleged in the charging documents.”  The article also states that Keebler’s federal defender said in court:

“…undercover agents proposed the explosive types, drove Keebler to the location, placed the bomb, handed Keebler a remote trigger and told him to press the button three times.”

 

 

Will the Stand Off in Oregon Spark a Revolution…In Cooperation?

The stand off at the Malheur National Wildlife Refuge near Burns, Oregon is now 14 days old, and the media narrative has us believing that little has changed.  We’re told armed men still occupy the refuge headquarters, they are removing fences, rifling through refuge files, causing fear and distress and division in the county, and they are responsible for costing taxpayers around $65,000.00 to $70,000.00 a day.  We’re told they are threatening, scary men who should be labeled domestic terrorists, and we should all be outraged that they haven’t been routed from the refuge and tossed in jail.

I have been following this situation from the beginning, and have already written about some of my concerns about the takeover of the refuge headquarters, and I will admit I have concerns about some of the people involved.  I have wondered about the sincerity of their stated intentions, and their decision to make their stand here in Oregon.  But, I can’t deny that I understand the anger over land use issues.  I grew up in logging country, my father lost his job when the local mill shut down and I saw the effect on the community as restrictions on land use increased, partially due to the struggle to protect spotted owls.  I understand the anger over the Hammonds’ case.  And , I understand the anger of Native American tribes over the loss of their land rights, rights often taken deceptively.

I also understand the desire to protect lands and wildlife.  I grew up camping and backpacking, my love for wilderness began before I can remember.  I spent a summer interning for the Bureau of Land Management (BLM) at another Oregon preserve, and have spent my life working in the outdoor industry.  I’ve been to the Malheur Refuge, and I don’t want to see it destroyed or closed.  I understand why this is a heated and polarizing issue, I find myself divided in my opinions and thoughts about it often.  But, rather than focusing on the land use issues and seeking solutions, the media is feeding division with their narrative of what is happening in Harney County.

This has bothered me from the beginning of the coverage of this story, and I have been trying to get some local perspectives, to get a feel for what is really going on.  I have had sporadic contact with somebody involved in the mess, and yesterday I had the privilege to speak with him on the phone.  BJ Soper, a member of the Central Oregon Constitutional Guard, was involved in the planning and organizing of the initial peaceful protest that took place on January 2, 2016 in support of Dwight and Steven Hammond. (You can read what I’ve written about their case here for some background on them.)  Like the vast majority of people involved, he did not know that the planned protest rally would end with the armed occupation of the refuge.  Mr. Soper has chosen to remain in the area, saying he will stay until the stand off is over.  He has impressed me with his calm approach, and his willingness to remain at the forefront of this situation, interacting with the men at the refuge, the media, community members, and law enforcement.  Today, Mr. Soper gave me a new perspective on the situation.

While we have been arguing about the occupation, and the feds have been expensively standing by, waiting the occupiers out, and policy makers and pundits have spouted off about just what actions should be taken, the surrounding community has been working hard, working together for the most part, to find solutions.  Mr. Soper had a positive ring to his voice as he mentioned the cooperation and communication happening in the county.  He mentioned comments from local residents of Burns about how they couldn’t remember the last time the community had come together to find solutions instead of simply leaving the decision making up to the powers that be.  Townhall meetings used to involve maybe 30 people, and the meetings taking place since the stand off began have involved hundreds.

I asked Mr. Soper specifically how he felt about the perception in the media that there is very little local support for the men occupying the refuge.  He said that he believes that is being misconstrued, that there is growing support.  He pointed out that most people don’t necessarily agree with the occupation, but they support the messages of land use issues and the Hammonds’ case that Ammon Bundy and his crew have brought national attention to.  They appreciate that this conversation is now started in a way that can’t easily be ignored, or stopped.  Mr. Soper also said that there are donations coming in (I’m sure he meant donations more useful than these) and there may even be companies looking to sponsor the group at the refuge.

We spoke about the reports of intimidation and increased crime Sheriff Ward spoke about eleven days into the stand off, alluding to increased reports occurring even before the stand off began, as if to say all those ‘militia’ folk were stirring up trouble before this began.   Mr. Soper had previously made reference to his thoughts on these reports on facebook, suggesting that much of the intimidation might just be coming from the feds.  He points out that there is an incredible law enforcement presence in the community, and it would not make any sense for any of the militia type people to be causing trouble around town.  After all, they are there to help the community, and wish to gain the support of the local people.  Not intimidate them.  (I also want to point out that many of these groups do not call themselves a militia.)

I asked Mr. Soper about this specifically because on Wednesday, the Fire Chief of Harney County, Chris Briels, resigned and gave a speech at the refuge in which he states that he followed a vehicle from the armory in Burns after there were reports made to the police about people being at the armory.  Mr. Briels followed a vehicle from the armory, and when it pulled over he approached the two men in the car and asked them what they were doing at the armory.  He states in his speech that they were dishonest with him, he describes their excuses for what they were doing, then goes on to say that he had the license plates run by the dispatch service.  The car was an undercover FBI vehicle, according to Mr. Briels.  Regardless of what the FBI was up to, what possible reason would they have for attempting to keep their identity secret from the fire chief?  If they expect the local leaders to support their actions and presence, why lie?

Mr. Briels is also upset about a recent decree from the local county judge, Steve Grasty:

Grasty also said protesters and their supporters can no longer use community facilities for meetings. Occupiers had planned to meet at the county fairgrounds Friday to explain their intentions and announce an exit plan.

Mr. Briels also states in his speech:

I feel that the people in this county, in this state, in this United States, have the right to free speech, and the right to assemble, and the right to figure out if there’s a problem, and what we can do about it.

BJ Soper is also frustrated about this, and indicates that a good number of residents are as well.  He alerted me to this on Wednesday, and pointed out that the Judge has no legal capacity to do this.  Mr. Soper has posted, on facebook, an email that he received from the judge that clearly states that the county’s message is for the armed militia to go home.   Ironically, Ammon Bundy had announced intentions to participate in a meeting on Friday (today) to discuss exit plans with the community, in a public venue.  I’m not sure how closing all public facilities to any community meeting that involves anyone affiliated with the refuge occupation helps to further discussion and progress towards a resolution of this situation.  I’m not sure how that helps everyone to just go home.  I can agree with what Mr. Soper has to say on facebook about Judge Grasty’s declaration and how to deal with it…

To my friends in Harney county… Right now nothing you can do is more important than speaking out against Judge Grasty stating that the fairgrounds building can not be used for a public meeting. He has no legal capacity to issue any such order. This is a clear indication that there is something to hide and an attempt to silence the voices that are growing with concern. This meeting on Friday at 7pm must go on! Do not let this man bully or threaten any of you.
My suggestion would be that all of you call the fairgrounds and reserve the room in your name. I will pay the $100 fee. Call by the 100’s to reserve the room. Whatever it takes. Let your government know that they do not have the ability to restrict your voice!!

I would happily contribute to that $100.00 reservation fee.

The people of Harney County have met this unexpected challenge with an unexpected response.  They have come together to look for solutions to a problem that has gone largely unaddressed and unresolved for decades, as well as the immediate problem of the stand off.  They are talking with one another, they are searching for a middle ground, they are cooperating with each other in spite of their different opinions.  Isn’t that how community is supposed to work?

Meanwhile, the Federal government has descended upon Harney County in flocks larger than any avian flocks I saw in my visit to the refuge years ago.  From all reports I’ve seen, they are just standing by, watching, waiting, while the tax-payer cost of this situation rises.   Again, from Mr. Soper in response to the lack of action from the feds:

What really fires me up is all these resources coming into this town for this issue that we the people get to foot the bill for. There hasn’t even been a conversation to discuss how to resolve the issue!! Not even a phone call. ABSOLUTLEY [sic] ridiculous.

How can we pin the cost of this ‘operation’ on Ammon Bundy and his crew?  How can we truly estimate the cost of a proper response?  I can’t help but question the current figure of the daily cost of this situation when I hear that there might be a surveillance drone on site, there is multiple law enforcement vehicles pulling one civilian car over, there are more law enforcement cars than civilian cars in the streets of Burns, but there is no violent act or tense situation to explain such an enormous federal presence.  Is this a reasonable response to the occupation at the refuge?  I have a suspicion that this would all cost a whole lot less if the feds had stayed out of the equation altogether and had allowed the local residents to resolve this problem on their own.   After all, they seem to be doing so, with or without the notice of the media, and without the help of the FBI and local authorities.

Perhaps we should all be screaming for the expensive law enforcement operation to pack up and go home instead of the group occupying the refuge.  After all, the law enforcement officials are the ones wracking up big bills while doing nothing more than standing around, armed and intimidating.  Let the community work together, as they are, to find a solution to the situation, and learn from their example.  We have to stop relying on this over-reaching and corrupt federal government to solve our problems, because their solutions always come with more restrictions.  Like the people of Harney county, we have to work together within our communities instead.

What the Stand Off in Oregon is Distracting Us From

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Katie Aguilera

On April 24, 1996, President Bill Clinton signed the Anti-Terrorism and Effective Death Penalty Act into law.  This act was introduced by Senator Bob Dole, and it had bi-partisan support.  It passed the Senate with a vote of 91 to 8 and passed in the House of Representatives with a vote of 293 to 133.  Not unlike the Patriot Act, this act was introduced and passed in response to terror attacks, both the bombing of the World Trade Center in 1993 and the Oklahoma City bombing of the Alfred Murrah building in 1995. The stated purposes of the act are to “deter terrorism, provide justice for victims, provide for an effective death penalty, and for other purposes.”

In the years between the two bombings, the panic-inducing rhetoric was in full swing over home-grown, right-wing extremist, anti-government terrorism (not unlike today).  Of course, Timothy McVeigh played into that perfectly with a Ryder truck with home-made fertilizer bombs in the back.  It is easy to see, after that bombing, how law makers on all sides would want to be viewed as doing their part to fight terrorism.

Since 1996, the existence of this law, and its use, seems to have been largely under-reported.  I have not been able to find out just how often it has been used in prosecution to date.  David Cole, lawyer and Georgetown University Law Professor, in an interview on Democracy Now discussing possible revisions to the Patriot Act in 2009 said:

This law was passed, as you indicated, in 1996, but it really was left unenforced until September 11th. Since September 11th, however, it’s been a favorite tool of the government. There have been over a hundred prosecutions. And the reason it’s the favorite tool is precisely because it doesn’t require the government to prove up that an individual actually is connected to any kind of terrorist activity. It allows them to paint with a broad brush.

It is a very broad brush indeed.

In 2012, the Bureau of Land Management (BLM) filed charges against Dwight and Steven Hammond, a father and son and long time residents and ranchers in Harney County, Oregon.  The Hammonds were prosecuted under the Anti-Terrorism and Effective Death Penalty Act.  What was this act of terror committed by the Hammonds?  Well, Dwight and Steven Hammond were charged with, and they admitted to, setting two fires on their land which subsequently spread to federal land.   Admittedly, there is a lot of background to this case, including questions surrounding the two fires and a long history of protests and threats, and I am working on another post that will go into greater detail on those.  But, for now, lets look at the two fires in question, and consider how these acts qualified the Hammonds for prosecution under this broad law.

The first fire was lit in 2001.  According to the Western Livestock Journal, it was a prescribed burn that spread to 139 acres of BLM land.  From court documents:

At trial, historical data and testimony established a long-standing plan between the Hammonds and their BLM range conservationist to burn off invasive species on the “School Section” of the Hammonds’ property. ER-316-18. Fire is a tool regularly used by the BLM to rehabilitate grazing lands.
Defendants had acknowledged intentionally setting a fire on September 30, 2001 to burn off invasive species on the School Section, which then spread to approximately 139 acres of adjacent public land (the “Hardie-Hammond Allotment”). ER-287, 243.
At trial, the government presented evidence that the fire was set in
a manner designed to spread on to the public land, and had endangered members of the Hammonds’ party.
The “endangered members” part is referencing testimony during the trial of Dwight and Steven Hammond by Dusty Hammond, Dwight Hammond’s grandson.  This OPB article says:

Nearly 11 years after the fact, Dusty Hammond recalled for a jury Wednesday in a U.S. District Court how he stumbled through juniper and sagebrush to escape a fire bearing down on him, a fire he helped set.

Hammond, 24, softspoken and clean cut, explained how his first-ever deer hunt near Frenchglen turned to arson after his uncle Steve Hammond passed out boxes of strike-anywhere matches to the four-man hunting party.

“Light the whole countryside on fire,” Dusty said his uncle told him. “I started lighting matches.”

Afterwards, he said, over lunch his grandfather and uncle instructed him to “keep my mouth shut; nobody needed to know anything about the fire.”

It has been reported that this fire was started to cover up evidence of poaching on federal land by the Hammonds.

The second fire that plays a role in the Hammonds’ case was lit in 2006.  This fire is said to have been started as a back burn to protect the Hammond’s winter feed from fires that were ignited by lightning.  Court documents say:

The facts of this fire are straight forward. The Ninth Circuit stated:
In August 2006, a lightning storm kindled several fires near where the Hammonds grew their winter feed. Steven responded by attempting back burns near the boundary of his land. Although a burn ban was in effect, Steven did not seek a waiver. His fires burned about an acre of public land.
So there you have it.  Poaching deer and destroying the evidence with fire, lighting fires without the proper notification in an attempt to save property in what may well have been an emergency response, burning a total of 140 acres of federally held land.  Regardless of the Hammond’s history of conflict with the BLM and the federal government (I’ll get into that in my upcoming post), it seems like a stretch to say that these are crimes that should be prosecuted under the anti-terrorism act.  Also, as I will get into here, the Hammonds were not prosecuted for the charges related to their previous threats and actions against federal employees, which could arguably be considered terrorism under the legal definition:
(5) the term “domestic terrorism” means activities that—
(A) involve acts dangerous to human life that are a violation of the criminal laws of the United States or of any State;
(B) appear to be intended—
(i) to intimidate or coerce a civilian population;
(ii) to influence the policy of a government by intimidation or coercion; or
(iii) to affect the conduct of a government by mass destruction, assassination, or kidnapping; and
(C) occur primarily within the territorial jurisdiction of the United States.
According to this report in 2010, the Hammonds were originally indicted on 19 counts, “charges that include conspiracy, arson, depredation of federal property, threatening federal officers, and tampering with a witness.”
Two years later, according to this article, they were brought to trial, now facing nine counts.

A federal indictment charges the pair with nine counts, including conspiracy and setting illegal fires on federal grazing land, fires that coincided or contributed to the Hardie Hammond, Lower Bridge Creek and Krumbo Butte fires.

One count alleges witness tampering, a charge Papagni [prosecutor in the Hammonds’ case] said stems from a confrontation in Frenchglen between Steve Hammond and Joe Glascock, a rangeland conservation manager who suspected the Hammonds of setting rangeland fires. Hammond in 2006 told Glascock: ‘This could get ugly, and this could be a sticky situation,’ the prosecutor told jurors. ‘You set those fires, not me.’

This July 2015 article states:

BLM pressed charges for the above-mentioned fires, citing endangerment of human lives and damage to federal property. However, the district court found that no one had been endangered by the fires, and that the fires had caused minimal damage. In fact, the court found, the fire had arguably increased the value of the land for grazing.

The jury deliberated, and agreed that the Hammonds were guilty on two of the nine counts, for the 2001 Hardie-Hammond fire and the 2006 Krumbo Butte fire, but could not agree on the remaining seven charges.  A plea agreement was made, the Hammonds would not contest the two charges if the remaining charges were dropped.  Again from the July 2015 article:

In determining the Hammonds’ sentences, Judge Hogan had decided that applying the “mandatory minimum” of five years cited in the Antiterrorism and Effective Death Penalty Act would ‘shock the conscience…’ He referenced the Eighth Amendment of the Constitution, which states, ‘Excessive bail shall not be required…nor cruel and unusual punishments inflicted.’

To call for five years’ imprisonment, he said, ‘would result in a sentence which is grossly disproportionate to the severity of the offenses here…’ He said that Hammonds’ actions ‘could not have been conduct intended under [the Anti-terrorism and Effective Death Penalty Act]…’ Judge Hogan used his discretion under the Eighth Amendment to sentence Dwight (now 74) to three months in prison, followed by three years’ “supervised release.” Dwight’s son Steven (45), father of three, was sentenced to one year and one day in prison—also to be followed by three years’ “supervised release.”

The Hammonds were ordered to surrender their firearms, and Dwight Hammond’s pilot’s license was revoked.  In a separate settlement, they were fined $400,000.00 by the BLM for damages and they had their grazing permits withheld.  However, for the US Department of Justice, this wasn’t enough.

Judge Hogan’s decision to sentence the Hammonds to prison time of less than five years challenged the federal government’s mandatory minimum sentencing structure.  It challenged the use of the anti-terrorism act to prosecute the ranchers.  The prosecutor in the case, Assistant US Attorney Frank Papagni, said this:

“Congress decided that this particular offense should carry a mandatory, statutory minimum term of five years,” Papagni wrote in the government’s sentencing memo.  “The evidence of defendants’ guilt was substantial. The jury’s verdict of guilt for this particular offense mandates imposition of the required statutory minimum term, as the statute constrains this court’s discretion.”

In the comment section of the same article, I found the following two comments to be especially interesting.

Has an appellate court ever decided that a particular sentence under the USSG [United States Sentencing Guide] is grossly disproportionate to the crime? I don’t think so. It would open a huge can of worms and possibly undermine the entire federal sentencing scheme. I think that it being the judges last day and that these were decent white ranchers had more to do with this decision than anything else.

and:

From the government’s point of view, assuring that judges obey MM’s [mandatory minimum] is a paramount interest. That’s why it will appeal this. To do otherwise is to virtually send the other district judges a gold-plated invitation to deviate from the MM when they want to.

The US Department of Justice appealed the ruling, and the Ninth Circuit Court of Appeals remanded the case back to the Oregon US District Court.  In the appeal, according to this article, the government admits it doesn’t have to prove that someone is committing acts of terror when they state:

“the fact that they are ranchers who set fire to rangeland and not terrorists adds nothing to the analysis.”

 Also in the appeal, the government uses the following disturbing examples of mandatory minimum sentences as justification:  25 years for the theft of three golf clubs; 50 years to life for stealing nine videotapes; 40 years for possession of nine ounces of marijuana with the intent to distribute; life sentence for obtaining $120.75 under false pretenses (what?!); 430 months for using arson in commission of a felony; and so on.  Because let’s see, one, two, three…many wrongs make a right, right?

Chief Judge Ann Aiken over-ruled Hogan’s sentence, and declared the Hammonds would have to return to prison and serve what remained of the mandatory minimum sentence of five years.

Dwight and Steven Hammond have returned to prison, but the re-sentencing sparked a protest rally in Burns, Oregon on Saturday, January 2, 2016.  The peaceful protest was subsequently over-shadowed by a takeover of the Malheur National Wildlife Refuge headquarters by non-local militia members who claim to have done so to demand that the Hammonds be released and the refuge lands be returned to the area ranchers.  You can read my thoughts on this take-over and stand off here, as well as a similar perspective here.

In the vast majority of the reporting and social media noise about this situation, very few are talking about the use of the Anti-Terrorism and Effective Death Penalty law in the prosecution of the Hammonds.  In my opinion, this case has demonstrated the government’s willingness to expand the use of this law in its efforts to shut down dissent of federal policies.  Ranchers angry over the increasing restrictions on their livelihood, pushed to the point of what has sometimes been destructive and threatening protest, can effectively be sentenced as terrorists.  And, as we know, terrorists are very, very scary.

The take-over of the Malheur refuge has created a distracting and extremely divisive debate here in America. In public opinion it seems that protests over police killings, which have also involved arson in the past, are acceptable because it involves racism and is a matter of authorities violating the rights of African Americans (and I 100% agree that rights are not just being violated, but entirely obliterated, racism is a problem, and I do support those protest movements) while the protests of frustrated ranchers over perceived violations of their land use rights by Federal authorities is unacceptable and labeled as terrorism.  In fact, both are about the violations of the rights and freedoms of Americans.  Consider a comparison different than the one the media is currently pushing with this quote from a 2001 article:

“They [rural land owners] are neglected by the state and by the federal government, and they’re mad,” says Eric Herzik, a political scientist at the University of Nevada. “They’re out of the loop; decisions get made for them. It’s not unlike inner cities, whose needs don’t get heard until there’s violence.”

While we argue and call names loudly over this stand off and those involved in it, the government has quietly set a precedence of using its very broad anti-terrorism law and its ability and willingness to set and enforce mandatory minimum sentences under that law.  Regardless of who is sentenced, and for what.

Consider the following from an ACLU report as you think about that.

There is a pall over our country. In separate but related attempts to squelch dissent, the government has attacked the patriotism of its critics, police have barricaded and jailed protesters, and the New York Stock Exchange has revoked the press credentials of the most widely watched television network in the Arab world. A chilling message has gone out across America: Dissent if you must, but proceed at your own risk.

Government-sanctioned intolerance has even trickled into our private lives. People brandishing anti-war signs or slogans have been turned away from commuter trains in Seattle and suburban shopping malls in upstate New York. Cafeterias are serving “freedom fries.” Country music stations stopped playing Dixie Chicks songs, and the Baseball Hall of Fame cancelled an event featuring “Bull Durham” stars Tim Robbins and Susan Sarandon, after they spoke out against the war on Iraq.

Compounding the offense is the silence from many lawmakers. There is palpable fear even in the halls of Congress of expressing an unpopular view.

No matter how you feel about the presence of those scary guns at the Malheur Refuge, and no matter how you feel about environmental stewardship, and no matter how you feel about inner city people or rural people or race or racism, it is time to look beyond all that and look at the underlying problems we are all facing.  It is past time to admit we have allowed our government to step way out of its boundaries. Each time we ignore cases like the Hammonds’, every time we give up rights of our own or others, we slide a little closer to fascism.

 

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