Cliven Bundy Wins: Malheur Verdict Redefines Civil Disobedience

When the Bundy brothers and their gang took over a working federal facility at the Malheur National Wildlife Refuge in Oregon last winter, they claimed to be peaceful "cowboy campers" exercising their First Amendment rights in a classic act of civil disobedience. That portrayal seemed practically ludicrous, given the regular display of guns -- and reports of menacing by local residents -- that characterized the occupation.

Nevertheless, all seven gang members who faced federal charges over the incident were acquitted by a jury in Portland, Oregon, last week.

The Bundys and their supporters are celebrating the verdict as a vindication of their tactics and their cause, but a much more complicated picture emerges in the context of the Black Lives Matter movement and the recent protests over the Dakota Access Pipeline.

What is civil disobedience, anyways?

TriplePundit has been following the Bundy case since its inception because Ammon Bundy is a businessman who purports to be acting for the benefit of the community.

Those of you new to the case can catch up by browsing the TriplePundit archives. The short version is that Ammon and Ryan Bundy lead a group of armed followers into an administration building at Malheur in January, effectively chasing out Bureau of Land Management employees and preventing public use of the property.

Deploying arguments that neatly dovetailed with the land privatization lobby spearheaded by ALEC and other conservative organizations, the Bundys claimed to be acting on behalf of the local community. They promised to turn the land over to ranchers, loggers and miners.

Without the weaponry, one could adopt a reasonable case for civil disobedience in the occupation of Malheur or practically anywhere else.

After all, the conventional understanding of civil disobedience involves passive actions, such as occupying a space, in order to draw attention to laws or situations perceived to be unjust.

Some of the highest profile episodes of the 20th-century civil rights movement -- occupying a seat on a bus, or a stool at a lunch counter -- involved just such passivity.

Civil disobedience, with guns...

One critical element in conventional civil disobedience is the protester's expectation that arrests will occur, and that the protesters will be called to account for breaking laws.

In organized actions, protesters are carefully coached to remain passive throughout, including during arrest. Aside from helping to prevent serious injury, passivity underscores the protesters' commitment to justice and helps to amplify their message.

The constant presence of guns throughout the Malheur episode puts an entirely new wrinkle on the concept of civil disobedience.

Regardless of the intent of the protesters, bringing guns into an occupied space is not a passive act.

Nevertheless, the show of arms enabled the Bundys to hold their space for weeks, drawing attention to their cause throughout.

... unless you are POC.

Federal law officers handled the Bundy occupation with an excess of caution partly because of continued fallout from the Waco, Texas, incident of 1993, in which 70 members of the Branch Davidian cult and several officers were killed.

To be clear, the Waco incident was not a response to civil disobedience -- the episode was sparked when federal agents raided the cult's compound on weapons charges -- but it has impacted the tactics that federal officers use to defuse situations on federal property.

Be that as it may, the "kid glove" approach that federal officers deployed at Malheur is a stark contrast with racial patterns of local police violence highlighted by Black Lives Matter and some violent responses to peaceful Black Lives Matter protesters.

Observers are also drawing contrasts with the ongoing response to protests over construction of the Dakota Access Pipeline, in which state-based law enforcement agencies have brought in military equipment to remove protesters by force from at least one protest site.

The difference in jurisdiction is a critical differentiator. As of this writing, the U.S. Army Corps of Engineers provided Dakota protesters with a legal right to occupy another protest site, located on federal land. By way of broader context, that decision appears related to the agency's emerging emphasis on environmental security, under which U.S. ACE has leveraged Native American treaty rights to prevent the construction of new fossil fuel infrastructure.

Black Lives Matter protests generally take case on city streets (and the occasional freeway), where a variety of city police forces and state troopers, who come with a wide range of training and tools in protest response, hold jurisdiction.

What comes next

Some commenters on the Bundy verdict believe that it may have normalized armed protest, leading to more acts of violence in the future.

There are a number of reasons why that probably won't happen, at least not in the context of the land privatization movement.

In an article last week, Think Progress charted the decline of the land rights movement. For one thing, its and Bundy's central argument -- that the federal government has no constitutional authority over land outside of Washington, D.C. -- has been thoroughly debunked by constitutional scholars.

Even within its western constituency, the movement has failed to attract mainstream legal support. In September, the Associated Press reported that a two-year study by the Western Conference of Attorneys General cast doubt on the arguments advanced by "land rights" advocates in Utah. The organization, which consists of 15 western states and three territories, voted 11-1 to adopt the finding.

The movement is also receiving significant pushback from the recreation industry, which cuts across party lines.

Last week, for example, an op-ed appeared in the conservative-leaning website The Hill drawing attention to widespread support for land preservation.

The Hill also provided space for an op-ed attributed to the organization Western Watersheds Proejct, which had this to say about the Bundy verdict:

This sorry episode of armed bullying succeeded only in spreading public awareness of pernicious attempts to despoil or steal outright our national treasure of Western public lands.

Ammon and Ryan Bundy are still due to stand trial in Nevada for another armed standoff on federal land orchestrated by their father Cliven back in 2014. The outcome of that trial could be quite different, especially if lessons learned from the failure in Oregon are applied.

In the end, the Bundy show of force did nothing for the land rights movement, and may have done serious damage to its public profile.

On the other hand, despite isolated episodes of violence, Black Lives Matter continues to gather force, and the Dakota Access protests are gaining a sympathetic public response while drawing more attention to the risks and impacts of new fossil infrastructure.

Perhaps armed "civil disobedience" has its limits.

Photo: “Damage at Malheur NWR” by USFWS-Pacific Region via flickr.com, creative commons license.

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