Charges Unconstitutional, Oregon Occupiers Claim

PORTLAND, Ore. (CN) — Lawyers for the Oregon refuge occupiers argued Monday that two of the most serious charges against their clients should be dismissed because they trample their clients' constitutional rights to bear arms and criticize the government.

U.S. District Judge Anna J. Brown's ruling on the motions will determine the roadmap for the anticipated four-month trial, set to begin in late September.

Amy Baggio, attorney for defendant Joseph O'Shaughnessy, argued that the charge leveled against all 26 defendants — conspiracy to use force, intimidation and threats to keep federal employees from doing their jobs during their occupation of the Malheur National Wildlife Refuge — is so vague that it "chills the most crucial activity: political dissent."

Baggio described a hypothetical situation involving a parade organized by supporters of the National Rifle Association, where participants legally carried guns and rallied outside of a federal building. And on the fourth floor of that building was a federal employee who was intimated by the rally and decided to go home instead of staying at work, Baggio hypothesized.

"The question is if someone protests while carrying a firearm, does that change the nature of the protest when they are lawfully possessing the firearm?" she asked.

U.S. Attorney Ethan Knight said that argument missed the mark.

"Nothing could be further from the truth," Knight said. "What is missing from that hypothetical that directly applies to this case is the conspiracy. The mere exercise of rights is not criminal, nor is the government arguing that it should be. It's the intent of the people in the conspiracy to prevent that person from working by using threats, force or intimidation. It's not the subjective experience of that person on the fourth floor. It's the objective intent of the people involved in the conspiracy."

Judge Brown also questioned Baggio's reasoning.

"The law does not criminalize criticizing," Brown said. "It does not criminalize mere protest. It criminalizes force, intimidation or threats. Criticizing a BLM officer is one thing. Using a gun as force or intimidation to prevent them from doing their job is another."

Knight said Baggio and the other defendants were stretching the law to make it seem unconstitutional.

"The defendants desperately want the statute to be about something it's not and that is criticism of federal employees," Knight said. "Does this law proscribe speech? It does nothing of the sort. The government is not interested in, nor do we care, about the opinion of these defendants except as they relate to the criminal charges."

Per Olson, attorney for final refuge holdout David Fry, argued in a hearing at the Mark O. Hatfield Courthouse that the court should toss out the most serious of the charges against the occupiers. Use and carry of a firearm in relation to a violent crime carries a maximum sentence of life in prison.

But Olson said there was no evidence that the occupation was a violent crime.

"Intimidation does not equal violence," Olson said. "The government's definition of intimidation is to make someone afraid. Afraid of what? They don't say bodily harm or anything specific."

He said the occupation was a far cry from something like a bank robbery or a carjacking, where the threat of harm is commonly understood.

"As long as we've had banks, we've had bank robbers," Olson said. "We all understand what they're after and what they're capable of. To take physically from somebody's presence is different than to prevent them from doing their job. We all understand what a bank robbery is. Violence is in the air, right there."

Knight said the question of whether the occupation was a violent crime was one for a jury to resolve.

All defendants charged under the two statutes joined the motions to dismiss the charges. All 26 defendants in the case are facing the conspiracy charge. Charged with use and carry of a gun in relation to a crime of violence are Ammon Bundy, Jon Ritzheimer, Ryan Payne, Ryan Bundy, Brian Cavalier, Jason Patrick, Sean Anderson, David Fry and Corey Lequieu.

Lequieu last week pleaded guilty to the conspiracy charge in exchange for the dismissal of the other charges against him. The proposed plea deal must be approved by Judge Brown.

Some defendants are also charged with possession of guns in federal facilities and theft of government property.

As usual in this case, the proceedings were punctuated by colorful outbursts from various defendants and their supporters.

After the lunch break, defendant Darryl Thorn read aloud from his Bible.

"Who will rise up for me against the wicked? Who will take a stand for me against evildoers?" Thorn recited. "Psalms 94."

A chorus of "amens" rose from his co-defendants and from the packed gallery.

Then defendant Duane Ehmer stood and unbuttoned the American flag shirt he has worn to every hearing so far in the case. He stood to display the florescent green T-shirt he wore beneath it, emblazoned with the words "The US Lied on 395. RIP LaVoy" — a reference to the Jan. 26 traffic stop on Highway 395 where Oregon State Police gunned down LaVoy Finicum and arrested the leaders of the occupation.

"We need us a David Fry shirt," Ehmer said. "With little pizzas on it." Ehmer was referring to Fry's final-hour demand for pizza delivery at the refuge, just before he surrendered to the FBI.

"I never did get my pizza," Fry mused aloud.

"No you did not," Ehmer said.

Judge Brown did not say exactly when she would rule on Monday's motions. Also pending is a Ninth Circuit appeal filed by Ammon and Ryan Bundy, Ryan Payne, Brian Cavalier and Blaine Cooper, protesting the government's plan to prosecute them simultaneously in Oregon and in Nevada, the latter involving charges related to the 2014 standoff at Cliven Bundy's Bunkerville, Nevada, ranch.

In the motion to the Ninth Circuit, Ryan Payne's attorney Lisa Hay called the dual prosecutions "unprecedented" and said it would be impossible for the five men to defend themselves in two complex cases that were happening at the same time in courthouses 1,000 miles apart.

Hay is due to argue that appeal in San Francisco on June 16.

Follow @@karinapdx

Subscribe to Closing Arguments

Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.

Email *

Submit