An Occupation In Eastern Oregon

Prosecutors: Bill Of Rights Shouldn't Cover Malheur Occupiers' Actions

By Conrad Wilson (OPB) and Ryan Haas (OPB)
July 30, 2016 4:15 a.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

Federal prosecutors in Oregon filed a trial brief Friday outlining their case against the occupiers of the Malheur National Wildlife Refuge.


The story prosecutors tell is one that shows a premeditated takeover of the refuge that had all the ingredients to escalate into a violent firefight.

Prosecutors write that evidence teams recovered more than 20000 rounds of ammunition, more than 1,000 spent shell casings and dozens of firearms. They note the total cost of the occupation was more than $6 million.

"There was also a massive amount of trash and personal property scattered throughout the Refuge," Assistant U.S. Attorney Ethan Knight wrote.

While 26 defendants were originally charged with conspiracy to impede federal workers after the 41-day occupation ended, several people have taken plea deals or asked for a later trial date in the case.

Related: Trial For 8 Malheur Occupation Defendants To Begin On Valentine's Day

Ammon Bundy, Ryan Bundy, Shawna Cox, Pete Santilli, David Fry, Jeff Banta, Kenneth Medenbach and Neil Wampler are scheduled to begin their trial Sept. 7.

Knight stated that those Malheur defendants were "inspired" by the 2014 armed standoff in Bunkerville, Nevada, between the Bureau of Land Management and ranchers led by Cliven Bundy, the father of Ammon and Ryan Bundy.

"Defendants described the occupied Refuge as the 'second freest place on earth,' after the Bundy Ranch," Knight wrote.

In the filings, Knight also wrote why various possible defenses should be outright rejected by the Court. He argued the occupiers cannot justify their actions by citing First and Second Amendment rights.

"To the extent defendants claim that they were exercising their First Amendment right to free expression by — and while — carrying guns, this Court should reject that claim outright," Knight wrote in the brief. "Taking a gun into a government office is not First Amendment protected activity."

Related: An Occupation In Eastern Oregon

Knight stated that Ammon Bundy, the occupation's "primary" leader, and Payne traveled to Burns two months before the occupation began and threatened Harney County Sheriff David Ward with "'extreme civil unrest in the community.'"

Knight wrote that on Jan. 2, Ammon Bundy led a convoy from Burns to the Refuge to "'make a hard stand.'"


Bundy stated that he and fellow occupiers initially took over the refuge to protest the imprisonment of Harney County ranchers Dwight and Steven Hammond. The Hammonds were convicted of arson on federal lands.

Government attorneys said the protest quickly escalated into an armed occupation.

"In an effort to fortify their hold on the Refuge, defendants also set up military style teams to enforce security," Knight wrote. "They placed armed guards in a tower on the property, armed guards at the front and rear gates, and armed teams patrolling different parts of the Refuge."

Prosecutors allege the defendants planed to stay for years after digging in at the refuge. Defendants took over the kitchen, got personal mail delivered, broke into safes, attempted to access employee computers, slept in the bunkhouse and stole gas stored in a tank at the refuge, according to Knight.

After defendant Cox was arrested, Knight said she told investigators "the weapons would have been used to stop the federal government from entering the property."

Knight wrote that First Amendment rights do not cover the occupation because "their speech incited illegal activity."

"The First Amendment affords no defense to words or actions that incite imminent criminal activity and it cannot shield a defendant from criminal liability when the words or actions are themselves integral to the crime," Knight stated in the brief.

He also argued that defendants in the case can't argue their possession of firearms at the refuge is protected free speech because the occupation was not about gun rights.

In a similar argument, Knight stated that Second Amendment rights don't protect the defendants who took weapons to the refuge.

"The Second Amendment secures lawful use or possession of a firearm but the Amendment does not protect use or possession connected with criminal activity," he wrote.

Related: Malheur Video Evidence Exceeds 250 Days Of Nonstop Viewing

Knight said that self-defense arguments for firearm possession also shouldn't be allowed in the trial because the defendants took weapons to the refuge before law enforcement was on scene.

"There is no evidence in this case that defendants needed to arm themselves for self-defense or that they even knew the scope of the law enforcement presence," Knight wrote. "The Court should reject any defense effort to insert this ill-founded theory into the trial."

When the trial begins, Knight said he and his colleagues plan to prove that

  • two or more people agreed to prevent federal employees from doing their jobs by using "force, intimidation or threat";
  • some defendants knowingly took firearms into a federal facility with the intent to use those weapons in commission of a crime;
  • Kenneth Medenbach illegally took a Ford F350 truck from the refuge for his own use; and
  • Ryan Bundy knowingly stole more than $1,000 worth of government property from the refuge for his own use.

As a basis for those arguments, Knight asked the court to accept as indisputable fact that the refuge is federal property, that the Hammonds were sentenced for arson and that U.S. Fish & Wildlife Service employees are federal officers.

In a separate court filing Friday, the government filed its exhibit list for the trial. The list includes photos of the occupiers, audio recordings, video and surveillance footage, thousands of rounds of ammunition and dozens of firearms.