“Those who are awed by their surroundings do not think of change, no matter how miserable their condition. When our mode of life is so precarious as to make it patent that we cannot control the circumstances of our existence, we tend to stick to the proven and the familiar…To change things is to ask for trouble.”
There are no straight lines in nature. This was a lesson I learned in sniper school, and it was a critical component of understanding the arts of stalking, building hides and harbor sites, and camouflage. It was also a critical tool in counter‐sniper activities, where finding a straight line was an indicator of human presence. And wherever there was a human presence, there was also danger.
In hindsight, all of that seems somewhat obvious, but with time and experience I’ve realized that the principle is remarkably transcendent.
My initial read and response to the occupation of the Malheur Wildlife refuge, for instance, and the consequent shooting death of LaVoy Finicum, traveled in a straight and easy line. That should have been a warning to me but for whatever reason it wasn’t. Instead, I allowed myself to be drawn into a simplistic narrative as it was portrayed in the broader media—whose interest in the events at Malheur (with rare and localized exceptions) was of the same juvenile variety that zoo visitors have when they hope to see the great ape agitated to the point of beating his chest and smashing things.
That became evident when the initial reason the Bundys, and hundreds of others, descended on Harney County wasn’t even part of the coverage equation. Overlooked in all of the subsequent condemnation of “welfare ranchers”, the overblown “militia” drama, and the ultimate tragedy of LaVoy Finicum, was the behavior of the government itself, and the re‐imprisonment of Dwight and Steven Hammond.
The Hammonds were charged, by the Federal government, with arson under the terrorism act, and were sentenced to prison under a mandatory minimum scheme that, in the way their case was ultimately adjudicated, looks much more like an absurd abuse of government power than an attempt to impose reasonable justice on essentially neutralized cattle ranchers living deep in the American outback.
The real‐time, big‐media portrayal of the events in Harney County was never, to my mind, properly objective or even sincere beyond its potential entertainment value. It was replaced, instead, by an almost wholesale belief in the integrity of the government narrative and a palpable desire to see a deadly conflagration play out in prime‐time.
To be fair, that sort of portrayal was not universally true. Outstanding coverage was provided by a small cadre of state and local journalists whose interest and dedication to discovery, probably because it was closer to heart and home, was commendable.
But nevertheless, and lamentably, high‐profile incidents of resistance such as that at Malheur often gain a strange kind of momentum in the national press, and amongst law enforcement on the ground, creating an intense pressure chamber that forces bad decisions and often leads inevitably to tragedy.
And it seems accurate to me that a Waco‐style shootout at Malheur would have pleased corporate media executives to no end, because their interest was in covering the drama rather than thoroughly examining its origins.
This proclivity to study drama rather than its origins — prevalent I think — is one result of our metamorphosis from a nation of can‐do optimists with a healthy suspicion of government into a nation of miserable cynics who ironically embrace the influence and beneficence of government no matter the cost.
“Between the forces of terror and the forces of dialogue, a great unequal battle has begun. I have nothing but reasonable illusions as to the outcome of that battle. But I believe it must be fought, and I know that certain men at least have resolved to do so. I merely fear that they will occasionally feel somewhat alone, that they are in fact alone, and that after an interval of two thousand years we may see the sacrifice of Socrates repeated several times.”
There is perhaps nothing quite so ironic as the spectacle of 60’s era activists who once marched and demonstrated in suspicion of all things government, who now cozy up to its largesse at every opportunity — with an expectation that more and stronger government is the solution to virtually every problem we face.
I would submit that that sort of cynicism, now metastasized throughout the culture, has infected our ability to examine and contextualize what is actually happening in front of us — and to our fellow citizens — at the hands of government entities with overwhelming and irresistible power, and an unsurpassed ability to control the narrative through the inveterate co‐option of major media outlets.
My error, until recently, was in knowing this, and yet still somehow failing to look for a deeper — or at least a more instructional — meaning in the events at Malheur and its aftermath.
At the time, I saw the takeover of Malheur as an opportunistic and misguided folly. I was off‐put by the personalities and personal beliefs of many of the players. I saw the shooting of LaVoy Finicum as a justified use of force. It was a straight line of logic and, I think now, deeply flawed. I saw it that way even as I wrote a newspaper column reminding readers that underwriting the Malheur takeover there remained legitimate and unresolved grievances, and matters of law, related to the government’s exercise of power in public lands policy.
I saw the entire timeline of events as a kind of jug band folly, and maintained that view until recently, when the government’s cases began to fall apart and I was inspired to take another look. And the government’s cases did not just fall apart, by the way, they imploded spectacularly under the weight of acquittals and a mistrial for what we now know to be corruption in the form of withholding material evidence. Not only did they withhold evidence, they lied about it. Not only did they lie about it, they conspired to lie about it.
That’s corruption, folks, misconduct of the very highest degree, and every one of us who has an interest in justice should pay close attention to what we can learn from the abuses of power and privilege that led inexorably to the avoidable death of LaVoy Finicum.
And we should do it whether we like the Bundys or not.
But that’s tricky, isn’t it? The Bundy family, on their own, aren’t sympathetic. Their claim to land rights under a convoluted recipe of divine inspiration and dubious reads on the Constitution mix zealotry with law in a way that debases whatever legitimate arguments they may have. Neither are the Bundys sympathetic to the nearly 700 other Nevada permit‐holders who pay their grazing fees in full and on time. And they are regarded as ridiculous by traditional members of the Western Shoshone Nation, who believe that if the Bundy’s claims about land‐ownership have any merit then some 25% of Nevada actually belongs to the tribe–based on terms of the broken Treaty of Ruby Valley, circa 1863.
I’m inclined to sympathize most with the Western Shoshones, but that is a different topic.
But our lack of sympathy for the Bundys is ultimately irrelevant because what should matter most to the rest of us is that the government prosecute their cases without malice or bias, and seek reasonable justice under the law —all of which they failed to do in a straight line stretching back to the Hammonds.
Whether we support a particular defendant’s cause or not we should, all of us, expect and demand the highest conduct from our government, and where they fail we should be vigorous in our condemnation. We should remain intensely vigilant and suspicious of those charged with maintaining our justice system, which all of us rely on, and we should probably celebrate the Bundys’ victory because it is really a victory for our own rights to due process.
And any victory for due process ultimately serves to buy us time in the never‐ending fight to stay off the reservation ourselves.
As for the Bundys, it wasn’t just that the investigators and prosecutors were corrupted by dishonesty and malice, it’s that the cases themselves were weak to begin with.
We know that because even when they made it to trial the government failed to convince federal juries of Ammon and Ryan Bundy’s guilt, or the guilt of five others for their roles at Malheur. In August of 2017 they failed again to convict four other men involved in the standoff at Bunkerville, Nevada.
“Navarro was especially riled because the FBI spent three years covering up or lying about the role of their snipers in the 2014 standoff. The Bundys faced conspiracy charges because they summoned militia to defend them after claiming FBI snipers had surrounded their ranch. Justice Department lawyers scoffed at this claim but newly‐released documents vindicate the Bundys.”
~The Hill, 1.14.18
That’s a lot of acquittals for what was portrayed in the media and assumed — by me and by others in the popular mindset — to be a slam‐dunk prosecution of rogue hillbillys and drooling militia types. And if you are keeping track, to date only three people involved in either Malheur or Bunkerville have been convicted — and not by juries of their peers — but only after they cracked under pressure and agreed to proffers.
Federal judge Gloria Navarro, while hearing the Cliven Bundy case in re the Bunkerville standoff, called the behavior of government agents and prosecutors in the case “grossly shocking,” “outrageous,” and examples of “flagrant misconduct,” before declaring a mistrial.
A mistrial is not an acquittal, but in a federal court setting, where decorum is strict and uncompromising, that kind of language is the severest kind of rebuke imaginable. And those of us seeking to learn something should pay particular attention to it because the misconduct condemned by that language ultimately informs the same mindset that resulted in the death of LaVoy Finicum.
Amongst law enforcement professionals passing judgment on a use of force by another officer is a no‐no. There are excellent reasons for that, not least of them that — from one hour to the next — no cop in America knows what deadly force scenario he or she might face, and the last thing anyone ever wants is to be second‐guessed on a split‐second street decision by their colleagues. Ultimately, it is the job of a jury to decide whether or not a use of force is justified.
This is particularly true in an age when any use of force is likely to be live‐streamed — often out of context — over social media platforms for a public that may not understand the law let alone the use‐of‐force continuum, is often ill‐informed to an extreme degree about facts and circumstances of the case, and when entire law firms exist solely for the purpose of suing cops and their departments over use of force incidents.
And believe me, the first time you are named in a federal civil rights violation lawsuit it will have your undivided attention.
“FBI agents formulated rules of engagement that permitted their colleagues to hide in the bushes and gun down men who posed no immediate threat. Such wartime rules are patently unconstitutional for a police action.”
~Judge Alex Kozinski, 9th US Circuit Court of Appeals, writing for the majority in the Randy Weaver case, Ruby Ridge, Idaho.
Nevertheless, and with tremendous sorrow, I now believe the killing of LaVoy Finicum, and the shooting of Ryan Bundy, were the unjustifiable result of incompetence amongst members of law enforcement who should have known better.
That is a difficult judgment, because the Oregon State Police officer who fired the shots that killed LaVoy is entitled to defend himself when he perceives a threat of death or great bodily harm to himself or others. That is the standard, and it is a good one because it acknowledges the infinite possibilities faced by officers, and relies on the judgment of a reasonable and trained professional to make decisions in the blink of an eye. And, importantly, I have never met a police officer who wanted to kill someone in the line of duty.
But the real tragedy of LaVoy Finicum’s death exists in the fact that whether or not LaVoy was reaching for a gun, or whether or not the perception of the officer who fired was reasonable under the law, none of the participants should have been put in that position to begin with. And that responsibility lies solely with the law enforcement personnel who decided it was imperative to arrest him that day.
And here’s why: they didn’t have a warrant. Nor did they have a warrant for the arrest of anyone in the vehicle driven by LaVoy Finicum. It might be argued that they had reasonable suspicion, which is enough for a detention, but under the circumstances that is a flimsy legal basis and an exceedingly poor tactical choice that–given the overarching responsibility to preserve life and liberty–doesn’t pass the smell test.
And if they had probable cause to stop the vehicle and arrest its occupants, why then did they not also have active arrest warrants when they had enjoyed several weeks within which to secure them? Securing warrants ahead of an arrest of this nature is a standard operating procedure and best practice in law enforcement.
It is police work 101, and the absence of warrants speaks volumes about the seriousness of the alleged crimes they were to be arrested for, and the competency of the people involved. Sadly, it also opens them up to accusations that they were operating under a vendetta mindset which—accurate or not—should never even enter the conversation of professional modern law enforcement.
The tactic used by Oregon State Police Officers and the FBI Hostage Rescue Team in their attempt to detain LaVoy et. al. is known colloquially, and now unfortunately, as a “road kill.” Under normal circumstances this is a valid and important tactic used by law enforcement officers to arrest or detain subjects suspected of being imminently dangerous away from their base of power.
The tactic is often avoided because, you guessed it, the subjects have a tendency to flee, and the results can be tragic.
“It is also fair to say that true patience is required at precisely the moment you least have time for it.”
~Robert Mueller, III, former FBI Director
In this case, arresting LaVoy and Ryan Bundy away from the Malheur Refuge on a lonely stretch of Highway 395 might have been the right move, except that, as noted above, there is precious little reason to believe the arrests were either legal or, perhaps more importantly, even necessary. And, as Judge Navarro pointed out later, the government was actively withholding evidence from the Bunkerville case–evidence that would likely have changed the threat assessment of LaVoy Finicum dramatically.
Which is important because it’s also likely that the information suppressed—and lied about—by the government would have changed the tactics used to attempt an arrest of Finicum. That is true because in modern law enforcement any proposed arrest of this magnitude, and particularly in such a high profile case, undergoes a “threat matrix” review.
Think of the threat matrix as a kind of ski hill advisory. Four black diamonds is a monster downhill, one black diamond not so much.
And here’s the kicker: the assessments suppressed by the government found that Finicum was essentially a bunny hill.
Nevertheless, at the time officers on the ground initiated their arrest, they were undoubtedly convinced that LaVoy Finicum and Ryan Bundy were highly dangerous menaces, and therefore, unavoidably, that much predisposed to deadly force during an active non‐compliance or resistance scenario.
Mindset matters in use of force investigations, and unfortunately for LaVoy Finicum from the moment he was first stopped his life was in the hands of people who considered him extremely dangerous and were unlikely to give him the benefit of any doubt as to his intentions. That’s a fail born of lies and deliberate omissions of fact, and we now know those lies and omissions came from the very top of the chain of command.
The most important question in all of this remains: what was the exigency? What harm would have come if Finicum had been allowed to travel into the next county to speak with the Sheriff, which was his destination and intent. And recall that, prior to this event, the Sheriff of Harney County, David Ward, had attempted to diffuse the situation by offering to let everyone at Malheur simply go home—which was right and good and just.
So what was so dangerous, so threatening, or so important about LaVoy Finicum, or even Ryan Bundy, that they absolutely had to be arrested that day?
The only honest answer to that question is nothing.