An Occupation In Eastern Oregon

Defense Attorneys Argue Some Malheur Charges Are Unconstitutional

By Conrad Wilson (OPB)
May 23, 2016 8:01 p.m.
Those who wanted the armed militants to leave Eastern Oregon's Malheur National Wildlife Refuge near Burns, Oregon, kept ripping down a sign the occupiers put up, in January.

Those who wanted the armed militants to leave Eastern Oregon's Malheur National Wildlife Refuge near Burns, Oregon, kept ripping down a sign the occupiers put up, in January.

Kris Millgate / Tight Line Media

U.S. District Court Judge Anna Brown heard arguments Monday morning that could lay the groundwork for the upcoming trial against 25 defendants who took over the Malheur National Wildlife Refuge.
Defense attorneys for the group argued that several of the counts against the occupiers should be thrown out ahead of the Sept. 7 trial.

Like during previous hearings, many of the defendants bowed their heads and recited the Lord's Prayer aloud before court went into session. Some members of the public seated in the courtroom joined the recitation. Defendant Jon Ritzheimer wore a tie with the image of LaVoy Finicum printed on it. Finicum, an Arizona rancher who operated as a spokesman for the occupation, was shot and killed by law enforcement Jan. 26 when he fled a traffic stop outside Burns, Ore.
Attorney Amy Baggio, who is representing Joseph O'Shaughnessy in the case, said the only charge levied against all of the occupiers — conspiracy to impede federal employees — is unconstitutional.
Baggio said the charge is too broad and allows the government to decide when a government employee is being impeded. She said the charge places a "sphere of protection" around government workers, which Baggio argued has the potential to create a chilling effect on political protests at government offices, thus violating the First Amendment rights of protesters.
"This statute has the potential to chill speech," she said in a Portland courtroom Monday. "This statute can chill not only freedom of expression, but also Second Amendment rights to bear arms."
Brown appeared puzzled by Baggio's argument at times, something Baggio even acknowledged while detailing her argument on printed PowerPoint slides.
"It's not protected conduct to use force," Brown said.
Still, Baggio said the statute is too broad and lacks limits.
She used an example to make her point: If members of the National Rifle Association peacefully protested while armed outside a government building, and a government worker felt threatened and unable to go to work, the same statute the government is using would hypothetically apply.
Defense attorneys also argued the statute was too broad to apply in this case.
"The defense desperately wants it to be about something it's not: free speech," said Assistant U.S. Attorney Ethan Knight. Rather than targeting speech, Knight said the statute targets conspiracies.
Defense attorneys also argued Monday that the third count in the indictment — use or carry of a firearm in a violent crime — shouldn't apply to the occupation. They claimed federal prosecutors have applied the statute to the occupation when it was actually intended to be used in crimes like armed robberies.
"Our view, your honor, is that you cannot import a definition from a robbery statute into this context because it's a totally different context," said defense attorney Per Olson, who is representing defendant David Fry.
But government prosecutors told the judge they couldn't disagree more with the analysis provided by defense lawyers.
"We believe very clearly this is a crime of violence," Knight said. "Our argument is not aspirational."
Brown suggested the court could send the question to the Ninth Circuit Court of Appeals for a ruling.
Both prosecutors and defense attorneys noted that the charge lacks specific definitions and case law, after a 2015 ruling from the U.S. Supreme Court that found the law to be vague.
A lot could be riding on the weapons charges in the case against Ammon Bundy and his followers.
Several of the defendants are charged with carrying a weapon in a federal facility or using it in a crime of violence, and those charges carry much steeper penalties than others in the case, such as the conspiracy charge. If convicted of the weapons charges, defendants could face longer prison sentences and mandatory minimums.
Some defense attorneys told OPB on Monday that if they're successful in getting the weapons charges dismissed, they expect more defendants to take their chances on a trial rather than try to negotiate a plea deal.
Last week, 46-year-old occupier Corey Lequieu became the first defendant to plead guilty to the conspiracy charge.
Brown did not immediately issue a ruling on the arguments made in court Monday.
"Well, I have a lot of work to do," Brown said. "I'll issue a ruling as soon as I can."