Nevada rancher Cliven Bundy speaks like a man from another century. In an interview with conservative radio host Dana Loesch, Bundy claims that “this is a sovereign state of Nevada.” Though he swears that he will “abide by all of Nevada state laws,” he adds that “I don’t recognize [the] United States Government as even existing.”
Last week, that idiosyncratic belief nearly triggered a violent conflict with federal officials. For two decades, those officials have tried and failed to keep Bundy from illegally grazing his cattle on federal land. They’ve obtained three court orders — one of them as long ago as 1998 — requiring Bundy to remove his cattle from federal land. The more recent orders, both from 2013, gave Bundy 45 days to comply or else “the United States is entitled to seize and remove to impound any of Bundy’s cattle that remain in trespass.” Bundy did not comply, and government-hired wranglers began rounding up Bundy’s livestock last Saturday.
Egged on by media figures like Fox News’ Sean Hannity and Tea Party groups like the Koch-funded Americans for Prosperity, Bundy quickly became a conservative celebrity — including among right-wing fringe groups. By Wednesday, right-wing militia members began to arrive in Nevada to “provide armed response” to federal officials seeking to enforce the court order.
As the potential for violence escalated, the feds decided to back down. This Saturday, the Bureau of Land Management stopped rounding up Bundy’s cattle and returned hundreds of animals they had already rounded up to the open range. “Due to escalating tensions,” the BLM explained in a statement, “the cattle have been released from the enclosures in order to avoid violence and help restore order.”
Given Bundy’s rather unusual understanding of the law (at one point, he demanded that the local sheriff disarm all National Park Service employees and bring their firearms to him), the presence of his armed supporters, and the willingness of major conservative outlets to serve as his public relations agents, BLM’s decision to avoid a violent conflict is understandable. Nevertheless, there is an obvious danger to allowing Bundy to get away with two decades of illegal action merely because he was able to muster armed supporters to his cause. If Bundy escapes from this incident without consequence, that sends a pretty clear message that federal law is optional so long as you have enough people with guns backing you up.
Here are three ways that the federal government might ensure that Bundy and at least some of his armed supporters are brought to justice:
1) Contempt of Court:
The normal sanction when a person subject to a court order refuses to comply with it is contempt of court. Contempt, according to a manual provided to federal prosecutors, is “an act of disobedience or disrespect towards the judicial branch of the government, or an interference with its orderly process.” By law, federal courts may “punish by fine or imprisonment, or both” when someone engages in “[d]isobedience or resistance to its lawful writ, process, order, rule, decree, or command.”
As a general rule, courts must “exercise the least possible power to obtain the desired result,” meaning that a federal judge should not issue a sweeping contempt sanction when lesser sanction will suffice to ensure that the person subject to contempt proceedings complies with the court’s order. Nevertheless, the fact that Bundy was willing to defy a court order for 20 years — and that he could rally supporters willing to put up armed resistance to federal law enforcement to his cause — suggests that he would simply ignore any fines that a court imposed on him. A judge may decide that the best way to convince Bundy that the federal government exists is to jail him until he agrees to comply with the court’s order.
2) Criminal Charges for Threats To Federal Officers
Federal law provides that anyone who “threatens to assault, kidnap, or murder, a United States official, a United States judge [or] a Federal law enforcement officer . . . with intent to impede, intimidate, or interfere with such official, judge, or law enforcement officer while engaged in the performance of official duties, or with intent to retaliate against such official, judge, or law enforcement officer on account of the performance of official duties” may be fined or imprisoned for up to 10 years (although a threat to assault carries a maximum sentence of only 6 years). So, if Bundy or his supporters threatened federal officials or law enforcement officers who were enforcing the court order against him, they could have committed a serious crime.
There is one big caveat to this approach, however. Although the First Amendment permits some laws banning threatening language, under the “True Threat” Doctrine, these bans are only permitted when they target “those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.” Moreover, at least one older Supreme Court case suggests that threatening language is not a “true threat” when it is made using conditional language. Thus, for example, if Bundy said something like “if you Feds don’t get off this land in two days, I will kill every last one of you,” that may not constitute a true threat because he placed a condition on what the federal officials would have to do before he killed them.
Among legal scholars, the current state of the True Threat Doctrine is widely viewed as incoherent, so there is some uncertainty about which kinds of threatening statements could form the basis of a prosecution against Bundy and his supporters.
3) Criminal Charges Against Militia Members Who Brought Guns To Nevada
Another federal law provides that “[w]hoever transports or manufactures for transportation in commerce any firearm, or explosive or incendiary device, knowing or having reason to know or intending that the same will be used unlawfully in furtherance of a civil disorder” may be fined or imprisoned for up to five years. This statute could potentially form the basis for criminal charges against some of the militia members who traveled to Nevada with their guns in order to support Bundy. In order to convict someone charged under this law, federal prosecutors would need to prove that the militia member transported their gun with reason to know that it would be used “unlawfully in furtherance of a civil disorder,” so this statute could not be used against someone who had no reason to suspect that they were traveling towards anything other than a peaceful protest. A civil disorder is defined as “any public disturbance involving acts of violence by assemblages of three or more persons, which causes an immediate danger of or results in damage or injury to the property or person of any other individual.”
At least some of Bundy’s supporters made statements to the press suggesting that they fully intended to use their weapons to further such a disorder. One militia member, for example, said that he was at the ranch to provide “armed response,” adding that “[w]e need guns to protect ourselves from the tyrannical government.” Similarly, a message purporting to be from one militia organization that was published on several right-wing websites announced that “[w]e have made the decision to mobilize to Nevada” and concluded with a fairly explicit statement suggesting that the purpose of this mobilization was to spark a deadly conflict: “All men are mortal, most pass simply because it is their time, a few however are blessed with the opportunity to chose their time in performance of duty.”