A federal conspiracy charge against 25 occupiers accused of stopping federal officers from doing their work at the Malheur National Wildlife Refuge is constitutionally vague and has the potential to "chill the most crucial First Amendment activity'' - political dissent, defense lawyer Amy Baggio argued Monday.
The charge provides a "sphere of protection'' for federal employees, but it's so broadly worded that it could restrict free speech and assembly designed to criticize the federal government and how its employees exercise their duties, Baggio said.
"This statute can chill, it can threaten not only First Amendment expression but the Second Amendment right to bear arms,'' Baggio said.
The charge alleges leader Ammon Bundy and his supporters prevented federal officers from working at the federal wildlife sanctuary in eastern Oregon through "intimidation, threats or force,'' yet Baggio argued that the statute doesn't define what constitutes intimidation, threats or force.
U.S. District Judge Anna J. Brown, who has set a Sept. 7 trial date in the refuge occupation case, countered that the statute "does not criminalize mere criticism'' or "mere protest.''
"It criminalizes force, intimidation or threats against public employees preventing them from doing their jobs,'' the judge said. Brown added that it's OK to criticize U.S. Bureau of Land Management employees, but preventing those BLM officers from doing their work on their property isn't permitted under law.
What if a federal court employee on the fourth floor of the courthouse was intimidated by a protest outside the courthouse by NRA supporters all carrying firearms? Baggio asked. Would that make the protest a criminal act because it "intimidated'' a federal employee?
"It's not protected conduct to use force to prevent federal officers from their duties,'' the judge told Baggio. "Of course a person has First Amendment rights but there are limits. ... It's also not lawful to intimidate someone with a firearm or threaten someone with a firearm.''
Debate over the conspiracy charge came on the first day of legal motions in the case stemming from the 41-day occupation of the Malheur refuge, which began Jan. 2 and lasted through Feb. 11. Bundy has said the occupation protested federal land management policies.
One of the 26 defendants charged with the conspiracy last week pleaded guilty to the charge. Nineteen co-defendants were in court Monday morning, including independent broadcaster Pete Santilli. Another listened by speaker phone from Utah and five others waived their rights to be present. Defendants recited the Lord's Prayer before the judge arrived on the bench, but then sat quietly through two hours of legal arguments.
Baggio urged the court to dismiss the conspiracy charge. If not, the defendants will argue at trial that they're being criminally prosecuted for protected conduct, she said.
"The conduct in this case was primarily intended as First Amendment activity,'' Baggio said. The defendants were clearly criticizing the federal government, from the Jan. 2 parade and rally protesting the return to federal prison of two Harney County ranchers to the refuge occupation protesting the federal government's management and control of public land, she said.
Assistant U.S. Attorney Ethan Knight challenged Baggio's argument after the lunch break. Knight said the conspiracy statute in this case is not about speech but about the conduct of the accused.
Knight said the government isn't interested in their speech, "nor do we really care about the opinions of these defendants.''
What makes their conduct criminal is the alleged conspirators' agreement to prevent federal officers from doing their work at the refuge, Knight told the court. He argued that the terms "intimidation'' and "threats'' are common terms that most people understand.
The occupiers received notice that their armed takeover was illegal and were told repeatedly to leave but refused to do so, he said.
In other arguments Monday, defense lawyers want Count 3 of the indictment dismissed. It accuses some of the defendants of using or carrying a firearm in the course of a crime of violence. They contend that the underlying conspiracy isn't a "violent crime.''
Defense lawyer Per C. Olson told the court that the government is wrongly applying a definition of "intimidation'' from a federal bank robbery charge to the conspiracy charge. He argued that they can't "lift a definition'' from another statute and "shoehorn it'' into this charge, without any case law to base it on.
Knight conceded that Count 3 presents "a close call'' for the court.
But Knight argued that the conspiracy very much represents a violent crime and should be left up to a jury to decide, perhaps with a special jury instruction, asking whether jurors believe there was a threat of violence or physical force involved in the conspiracy alleged.
The judge asked for the definition of "threat" and "intimidation" that should be applied to the conspiracy charge.
"I don't know,'' Olson responded. "That's part of the problem.''
Defense lawyers also want prosecutors to provide them with more specifics on the allegations against each defendant, which would help determine who might go to trial together.
"It's not clear who's alleged to have done what,'' Baggio said. She pointed out that her client, Joseph O'Shaughnessy, was wrongly implicated by the government as being at the refuge from the start of the occupation.
The judge suggested it wouldn't harm the case for prosecutors to provide defense lawyers with a better road map, considering defense lawyers have received 36 volumes of evidence in the case.
The judge said she'll rule on the defense motions to dismiss the federal conspiracy charge, and count 3's alleged "crime of violence'' in the near future.
A June 16 hearing is set before the 9th U.S. Circuit Court of Appeals on defense arguments that certain defendants' rights are being violated because of they face simultaneous prosecution on two complex federal cases in Oregon and Nevada.
-- Maxine Bernstein
mbernstein@oregonian.com
503-221-8212
@maxoregonian