Yes, the feds had a plan for Malheur

One dead, one injured, six arrests.
Could have been much, much worse.

One of the occupiers of the Malheur National Wildlife Refuge is dead after a shoot-out with federal and state authorities. Eight of the crew, including ringleader Ammon Bundy and his brother, were pulled over while driving to a meeting in a neighboring county. Five of the survivors, including the Bundys, have been arrested, and a sixth man was arrested in a nearby town. The officers had arrest warrants charging several of the occupants of the car with “conspiracy to impede or injure an officer,” a less serious charge than “seditious conspiracy” but still good for up to six years.

It’s possible that they’re in much worse legal trouble than that: the death of their co-conspirator might well be covered by the felony murder rule.  The fact that the person killed was one of them has no legal significance; in general, if a group of people agrees to commit a felony which could reasonably be expected to put lives at risk, and someone dies, all are liable to the charge of first-degree murder.

The feds have announced that the remaining occupiers are free to leave the refuge: as long as they do so at once.

In the aftermath of the takeover, there was considerable grumbling that the Administration had not moved with sufficient force to retake federal property, especially after having been forced to back down in the Bundy Ranch confrontation.  But it looks as if slow-walking the process worked well, giving the occupiers time to become a national laughingstock.

A recent story focused on the activities of the Hammonds, whose five-prison sentences this crew was protesting, made it appear that the Hammonds got no more than they deserved after a long career of not only ignoring the law but threatening violence against those who were trying to carry it out. In polite company, one does not threaten to wrap a man’s son in barbed wire and throw him down a well. So far as I know, none of the pundits and politicians who expressed sympathy for the Hammonds – all, for some reason, on the Red Team – have expressed any sympathy for the federal officials they terrorized for years.

In this case, both the local sheriff and the governor of the state were on the side of sanity. Unfortunately, that was not the case in the Bundy Ranch confrontation. Of course I hope that the feds have a plan in their back pocket to collect the judgment against Cliven Bundy, and even perhaps a plan to indict, arrest, and try some of the people who pointed loaded weapons at federal law enforcement agents two years ago. But I’m not sorry that a bloodbath was avoided, even at some damage to the majesty of the law. And while I can’t imagine that Barack Obama or Attorney General Loretta Lynch will ever claim – or get – the credit for how deftly the current confrontation was managed, they amply deserve it.







Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact:

15 thoughts on “Yes, the feds had a plan for Malheur”

  1. No word about white privilege? If black militants had done something similar, would the feds have "waited it out" and offered them amnesty for leaving immediately? Has any such thing ever been offered to black protesters in the US?

  2. " if a group of people agrees to commit a felony which could reasonably be expected to put lives at risk, and someone dies, all are liable to the charge of first-degree murder."

    It's going to be pretty critical in that regard who shot first, I should think. The rule isn't, once agree to commit a felony, forever after if one of the group dies you're a murderer. It has to actually be a direct result of the felony. If the police just opened fire on them while they were traveling, you'd be hard put to invoke the felony murder rule.

    Didn't think much of this protest. The Hammonds got screwed over, but they'd decided their response, and it was to continue working within the legal system. This bunch were just looking for an excuse to do what they did. Didn't have to be a good excuse.

    Which doesn't really distinguish them from the Occupy movement, whose blood I don't recall you thirsting for…

    1. Right, because a peaceful sit down in a public space is EXACTLY like an armed occupation of a building, and chanting protest slogans is EXACTLY like threatening people with weapons. Remind me never to enter into a contract with you.

    2. I do not remember Mark thirsting for blood with Occupy either. That is because I have totally forgotten how they showed up carrying weapons and pointing firearms at law enforcement with impunity. No doubt you have vivid memories, so it would help the rest of us if you could point us to news stories which documented these events. Mark appears to have clean forgotten as well.

    3. In what way did the Hammonds get screwed over? Five years isn't remotely an appropriate sentence for a pattern of criminal activity spanning several years. In my view, they were treated with unseemly generosity by the criminal justice system. They committed numerous crimes (for profit) and then started fires to cover up the evidence. They received the minimum sentence even though they are repeat offenders who have shown neither contrition nor remorse for their crimes.

      They and the other freeloaders have consistently acted in bad faith. They do nothing but whine when the Federal teat is pulled away. If they don't like the way the government treats them (which is about a thousand times more generously than it treats the average american), let them stop using the land that is owned by the people and is rented to these freeloaders at below market prices. Let these rugged, individualists rent or buy land for themselves in the free market at market prices like everybody else.

  3. This just in: The feds have just ordered the media to leave the area around Malheur. (Per KOIN News)

    Always a bad sign when the government wants the cameras removed.

    An even worse sign, of course, when the media are willing to comply.

    1. It is a compound occupied by heavily armed fanatics who are regularly and openly proclaiming their willingness to use those weapons against law enforcement in the event that the government tries to arrest them. The fact that this seems to have been little more than nutter performance art and the guns little more than props and fetish objects, doesn't mean that these people are dangerous. The FBI and state police have made it clear that these criminals must now surrender or else.

      You seem to be implying that the media should remain in the compound or nearby to serve as human shields. I don't see why that is something you think is appropriate. Besides, the cowards and blowhards inside the compound also have children that were brought to the compound to serve as human shields. If these guys are such great warriors, they should let those children go to safety and then do whatever it is that cowards who use children as human shields do when those children are no longer available.

      My guess is that when the chips are down, these "wolverines" are going to fold like a cheap suit.

      1. (And of course what the Feds actually said was that they couldn't guarantee the media's safety in case of a confrontation. Which is similar in some ways to telling them to leave, but different in others.)

  4. I don't think acting now was anything more than a combination of pressure from the state authorities and the fact that the thing seemed to be getting out of control, in part because the extremists were taking full advantage of being treated with kid gloves by the federal government. Tactically, it was a well planned and executed operation; although, quite frankly, these supposedly savvy, special forces type guys that were "protecting" the Bundys turned out to be duds.

    Now the question is what happens at the militants stronghold, apparently the feds are gradually escalating but, at this point, I don't know what the government can do because the extremists have children in the compound that they are using as human shields. I don't have any trouble turning of the heat, light and water (and certainly, the internet) for a bunch of adults playing at "Wolverines" but the little kids complicate matters, a lot. These people are obviously cowards, hiding behind children, but I'm not in favor of doing anything that will harm kids.

    Also, just as an aside, I would have to look it up because I don't know the specifics of Oregon law, but the overwhelming majority of states exclude participant deaths from the felony murder rule.

    I appreciate that we can't really know whether this is another example of "11 dimensional chess" or the result of pressure from state authorities but, as Willie Nelson might say, the Federales really could have had them any day and just kept letting the Bundys slip away out of kindness, I suppose.

  5. I do not understand the willingness to let the occupiers go freely.

    If they are going to end up as right-wing heroes then let them enjoy the glory from inside a cell.

    1. Once you've identified them, go ahead and let 'em go. There aren't many of them, and they're are on the grid. They can be arrested later, after they've dispersed. We just saw the feds use the nutters sense of entitlement against them. We shouldn't be surprised to see that happen a few more times.

    2. It's become obvious that the willingness to let the occupiers go freely was limited to the small fry. Of the eight that left the refuge yesterday, three of them were immediately arrested.

      1. Ron,

        My impression is that they are not going to be arrested later. If they are, fine.

        And I don't need to see the small fry put away for years, but I think something – six months, a year? – would be appropriate.

  6. Look, just because people are armed hotheads, it doesn't mean we need to shoot them. There's not enough information yet to feel informed, but I certainly don't see this as good news. Granted, I don't blame law enforcement, bc the whole thing is dumb and those idiots shouldn't have been doing this. Still, just bc someone is annoying and carries a gun, it doesn't mean we need to shoot them. I am sorry that fool got himself shot. I still don't see what the hurry was. Why doesn't it work to starve people out? Or better yet, send them yummy food in the hope it will lead to them thinking more clearly, and just … wait? Put their mom on a loudspeaker? Something.

    Mark's point that you don't get to point guns at feds is inarguable (or, un-…?) He is right. Still… this isn't good news. Dealing with angry and impatient people is part of being in law enforcement. It *shouldn't* be… but it is.

Comments are closed.