Bunkerville defendant kicked off the witness stand by judge for, well, defending himself

First Amendment area cordoned off by BLM.

The judge in the trial of four defendants in the 2014 Bunkerville standoff with BLM agents attempting to confiscate rancher Cliven Bundy’s cattle has made it clear she will not allow a defense based on First or Second Amendment rights or claims that BLM misbehavior provoked the protest.

On Thursday she cut short the testimony of defendant Eric Parker after he tried to mention in his defense testimony a “First Amendment area” the BLM had set up to isolate protesters — an area that Gov. Brian Sandoval said “tramples upon Nevadans’ fundamental rights under the U.S. Constitution” — and attempted to mention where a BLM sniper was positioned.

BLM snipers?

The judge told Parker to step down without completing his testimony.  Reportedly there will be no cross examination and no jury questions.

Now, if Parker can’t even mention the First or Second Amendment, can he mention the Sixth?

You know, the one that guarantees the right to a speedy and public trial, rather than one that takes place a year and a half after an arrest; the one that guarantees an impartial jury, rather than one stacked by the prosecution to remove anyone who has ever even heard the phrase “jury nullification”; the one that guarantees the right to obtain witnesses in his favor, rather than having witnesses testify without the jury present, as happened earlier in the week.

This is the text of the Sixth Amendment:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

No need to mention the Eighth’s prohibition against excessive bail and cruel and unusual punishment, nor the Fifth’s double jeopardy clause since the first trial ended in a hung jury, probably due to all that nonsense about constitutional rights to free speech, assembly and bearing arms that this jury will not hear.

Protesters outside courthouse. (R-J pix)

 

 

Newspaper column: Bundy acquittal renews debate over federal land

Ryan Bundy at the Malheur National Wildlife Refuge in Oregon this past January. (AP photo)

Ryan Bundy at the Malheur National Wildlife Refuge in Oregon this past January. (AP photo)

Apparently the unexpected acquittal in Oregon — on charges of illegally occupying a wildlife refuge to protest the jailing of father and son ranchers over fires that got out of control and burned a few acres of federal public land — has emboldened one of the Bundy brothers to the point of braggadocio.

In a telephone interview this past week from his jail cell Ryan Bundy told The Washington Post that there could be protests if Obama goes ahead with plans to designate the Gold Butte area, next to his family’s Bunkerville ranch, as a national monument.

Bundy — who remains jailed while awaiting a February trial in Nevada, along with his father, three brothers and others, over the armed standoff in 2014 with BLM agents trying to confiscate the family cattle — told the Post, “The government should be scared. They are in the wrong. The land does not belong to the government.”

He warned that, as the Declaration of Independence states, the people have a right to abolish an abusive government.

The Post dismissed out of hand his arguments about who lawfully should be controlling federal public land, saying his arguments are “disputed by most mainstream constitutional scholars.”

Bundy argues that the Constitution does not grant the federal government the power to control vast tracts of land, nor does it give the president authority to single-handedly create national monuments.

His ill-advised bluster about revolution aside, there are legal scholars — perhaps not mainstream in the eyes of the Washington Post — who say Bundy and his ilk have a point.

Article IV, Section 3 of the Constitution reads: “The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States …”

The question is whether Congress may abdicate that power, as it did with the Antiquities Act of 1906, granting presidents the power to create monuments.

A Heritage Foundation essay by a federal judge argues it does not: “Although the Constitution contains no explicit prohibition against Congress delegating its legislative powers (to the President or an administrative agency, for example), the principle of non-delegation is fundamental to the idea of a limited government accountable to the people. Indeed, the people, in whom sovereignty ultimately resides, carefully assign certain powers to each branch of government. The delegated powers are defined as placed in distinct branches of government for the ‘accumulation of all powers, legislative, executive, and judiciary, in the same hands,’ writes James Madison in Federalist No. 47, ‘may justly be pronounced the very definition of tyranny.’”

The Supreme Court three times has upheld the Antiquities Act, but on arguments other than constitutionality.

Then there is also the question of whether the Founders intended that the federal government control vast acreage inside sovereign states.

Rufus King

Rufus King

James Madison wrote in 1787 that Elbridge Gerry raised concerns during the drafting of the Constitution about giving Congress exclusive power over purchased lands, saying “that this power might be made use of to enslave any particular state by buying up its territory, and that the strongholds proposed would be a means of awing the state into an undue obedience to the general government.”

Delegate Rufus King moved to add the phrase “by consent of the legislature of the state.” It passed unanimously.

Yet none of the legislatures of the Western states has ever consented.

This issue was addressed in 1828, when Illinois, Indiana, Missouri, Arkansas, Louisiana, Alabama, and Florida petitioned to gain control of federal land within their boundaries.

Their petition to Congress read in part: “If these lands are to be withheld from sale, which is the effect of the present system, in vain may the People of these States expect the advantages of well settled neighborhoods, so essential to the education of youth, and to the pleasures of social intercourse …”

It went on to say the land needed to be sold “within a reasonable time” so it could be taxed and government services provided.

Today the federal government controls only 4 percent of the lands in those states, while it controls 50 percent of the Western states, including 86 percent of Nevada.

The 1864 Nevada statehood document promises the state would get 5 percent of proceeds when “public lands lying within said state, which shall be sold by the United States subsequent to the admission of said state into the Union …”

It is 152 years subsequent to admission. Is that within a reasonable time?

A version of this column appeared this week in many of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel and the Lincoln County Record — and the Elko Daily Free Press.

Behind the Bundy bluster is there a constitutional leg to stand on?

A sign at the entrance to the Bundy family’s ranch in Bunkerville, Nev. (Ronda Churchill for The Washington Post)

A sign at the entrance to the Bundy family’s ranch in Bunkerville, Nev. (Ronda Churchill for The Washington Post)

Even though he is still in jail, apparently the acquittal in Oregon has emboldened one of the Bundy brothers to bluster.

In a Monday telephone interview from jail Ryan Bundy told The Washington Post that there could be protests if Obama goes ahead with plans to designate the Gold Butte area next to his family’s Bunkerville ranch a national monument, something Sen. Harry Reid has said is all but certain before he and Obama leave office in January.

Ryan Bundy

Ryan Bundy

Bundy — who still faces a February trial in Nevada, along with his father Cliven, three brothers and others, over the armed standoff in 2014 with BLM agents trying to confiscate the family cattle — told the Post, “The government should be scared. They are in the wrong. The land does not belong to the government.”

He warned that, as the Declaration of Independence states, the people have a right to abolish an abusive government.

 

“The only peaceful resolution to all this is for them to obey the Constitution,” he told the Post. “Read it, understand it, abide by it. There doesn’t have to be violence. None of that has to happen if they would just abide by the Constitution.”

Asked whether violence was justified, Bundy tersely told the paper, “Ask George Washington.”

The Post dismissed his constitutional arguments out of hand, saying:

Repeating an argument common in the West but disputed by most mainstream constitutional scholars, Bundy said the Constitution does not grant the federal government power to own large tracts of land, nor does the president have legal authority to create national monuments. Bundy said that creating the Gold Butte monument would be an abuse of presidential power and a valuation of tourism and endangered species over the economic needs of struggling communities.

Article IV, Section 3 of the Constitution reads: “The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States …”

The question is whether Congress has the power to abdicate that power and turn it over to the president, as it did with the Antiquities Act of 1906.

Heritage Foundation essay by a federal judge argues it may not:

Although the Constitution contains no explicit prohibition against Congress delegating its legislative powers (to the President or an administrative agency, for example), the principle of non-delegation is fundamental to the idea of a limited government accountable to the people. Indeed, the people, in whom sovereignty ultimately resides, carefully assign certain powers to each branch of government. The delegated powers are defined as placed in distinct branches of government for the “accumulation of all powers, legislative, executive, and judiciary, in the same hands,” writes James Madison in Federalist No. 47, “may justly be pronounced the very definition of tyranny.” While the executive must exercise some discretion in the application of law, lawmaking remains the prerogative of Congress. Since the New Deal, the Supreme Court has unfortunately sanctioned ever greater delegations of legislative power to administrative agencies. That the courts have flouted this principle does not mean that Congress can or should ignore this element of constitutional construction.

Still the Supreme Court has upheld the Antiquities Act three times, but on arguments other than constitutionality.

Then there is also the question of whether the Founders intended that the federal government control vast swaths of land in the sovereign states.

James Madison wrote in 1787 that Elbridge Gerry raised concerns during the drafting of the Constitution about giving Congress exclusive power over purchased lands, saying “that this power might be made use of to enslave any particular state by buying up its territory, and that the strongholds proposed would be a means of awing the state into an undue obedience to the general government.”

Delegate Rufus King moved to add the phrase “by consent of the legislature of the state.” It passed unanimously.

Yet none of the legislatures of the Western states, where the federal government controls so much land, ever consented.

This previously was addressed in 1828, when the Western states of Illinois, Indiana, Missouri, Arkansas, Louisiana, Alabama, and Florida petitioned to gain control of federal land:

The petition read:

It is of pressing moment that the public lands should become the property of their citizens, with the least delay compatible with the national interest.  The numerous petitions, memorials, and legislative resolutions, heretofore presented from them, evince the lively and anxious concern with which the present state of things impresses them.

If these lands are to be withheld from sale, which is the effect of the present system, in vain may the People of these States expect the advantages of well settled neighborhoods, so essential to the education of youth, and to the pleasures of social intercourse, and the advantages of religious instruction.  Those States will, for many generations, without some change, be retarded in endeavors to increase their comfort and wealth, by means of works of internal improvements, because they have not the power, incident to all sovereign States, of taxing the soil, to pay for the benefits conferred upon its owner by roads and canals.

When these States stipulated not to tax the lands of the United States until they were sold, they rested upon the implied engagement of Congress to cause them to be sold, within a reasonable time. No just equivalent has been given those States for a surrender of an attribute of sovereignty so important to their welfare, and to an equal standing with the original States.

Today the federal government controls only 4 percent of the lands in those “Western” states, while it controls 50 percent of the current Western states, including 86 percent of Nevada.

In fact, the Nevada statehood document includes language saying the state would get “five percentum of the proceeds of the sales of all public lands lying within said state, which shall be sold by the United States subsequent to the admission of said state into the Union …”

That is an implicit promise that the land shall be sold.

So, who is right? Bundy or most mainstream constitutional scholars? With or without the saber rattling.

 

 

 

Will any of the Bundys be released on bail pending their February trial?

Now that two of Cliven Bundy’s sons are returning to Nevada after being acquitted of conspiracy charges in Oregon over their armed takeover of a wildlife refugee will any of the Bundys or their co-defendants in the armed standoff with BLM agents at their Bunkerville ranch in 2014 be released pending their trial, which is not scheduled until February?

Jurors did not deem Ammon and Ryan Bundy a serious enough threat to be locked up.

According to ABC news, the Multnomah County Jail roster shows the brothers left the jail this morning and are being flown to Las Vegas to face charges.

Cliven Bundy and four of his sons and several co-defendants, depending on how many have pleaded guilty by now,   face charges that include obstruction of justice, conspiracy, extortion, assault and impeding federal officers.

An attorney for Ammon Bundy has said he will seek his release.

Previously Nevada prosecutors have said of Cliven Bundy in arguing against his release:

“Bundy is lawless and violent. He does not recognize federal courts — claiming they are illegitimate — does not recognize federal law, refuses to obey federal court orders, has already used force and violence against federal law enforcement officers while they were enforcing federal court orders, nearly causing catastrophic loss of life or injury to others. In fact, all the evidence suggests that Bundy will continue to act lawlessly, will not abide by court orders, and will use violence to ensure that federal laws are not enforced as to him.”

Bundy’s attorney countered:

“The government is trying Cliven Bundy in these motions, rather than before a jury of his peers. The government is holding Mr. Bundy in solitary confinement, a man who has never hurt a fly. The government seems to be afraid that it might lose in a jury trial, so it wants to keep him in prison, in solitary confinement, as long as it can, because he, like Nelson Mandela, is a political prisoner. … There is nothing in the U.S. Constitution allowing the federal government to hold political prisoners without a trial. Nothing.”

We shall see who will prevail and how much weight the acquittal in Oregon will carry.

Ryan and Ammon Bundy acquitted in Oregon case. (AP photo via R-J)

Ryan and Ammon Bundy acquitted in Oregon case. (AP photo via R-J)

 

 

When two things are alike, but not at all alike

Fire in the Washoe Valley. (Photo provided to RGJ)

Fire in the Washoe Valley. (Photo provided to RGJ)

Let’s engage in a little compare and contrast.

In 2001 father and son ranchers, Dwight and Steven Hammond, started a fire on their own Oregon ranch to burn off juniper and sagebrush. The fire escaped their property and burned 139 acres of Bureau of Land Management land.

In 2006, lightning started several fires and the Hammonds set a back-burn fire to try to prevent the fire from spreading to their crops and buildings. That fire burned an acre of public land.

Today the Hammonds are serving five-year mandatory sentences under the Antiterrorism and Effective Death Penalty Act of 1996. It was their sentencing that prompted the armed sit-in-style protest on a federal wildlife refuge in Oregon. The seven defendants were recently found not guilty. This included two sons of Bunkerville rancher Cliven Bundy.

Investigators recently confirmed that a mid-October fire in Northern Nevada that burned 2,300 acres, destroyed 23 homes and 17 out buildings and resulted in smoke inhalation injuries to four people was caused by a prescribed burn conducted by the Nevada Division of Forestry. Damage could be close to $4 million, according to the Reno newspaper.

A Forestry statement was released saying, “The Nevada Division of Forestry is deeply moved by and concerned with the tragic impacts to residents of west Washoe Valley. NDF staff has worked closely with many of these residents over the years and has offered conservation crews and natural resource specialists as part of the recovery team.”

No one has been charged with a crime, nor ever will be.

Justice?

 

Is it a question of free speech or the content of that speech?

Protesters camp blocks oil pipeline. (AP photo)

Protesters camp blocks oil pipeline. (AP photo)

Federal officials are refusing to kick protesters off federal public land in North Dakota, saying they don’t want to harm their free speech rights.

The protesters are blocking a $4 billion oil pipeline that has been approved for right of way across federal land. There have been violent clashes.

“We don’t have the physical ability to go out and evict people — it gives the appearance of not protecting free speech,” a federal official was quoted as saying. “Our hands are really tied.”

Security guards were injured when protesters confront pipeline workers and police later arrested 21 protesters on charges that include resisting arrest, criminal trespassing on private property and possession of stolen property.

The project was expected to create 8,000 to 12,000 jobs during construction.

Meanwhile, in a federal court in Oregon, Ammon and Ryan Bundy of Bunkerville and five others are on trial for occupying federal property and the judge is refusing to allow them to argue that their occupation was a statement about who should really control the public land.

“The ownership of the refuge is not up for discussion,” the judge one of the attorneys this past week. “Please move on.”

The only violence that took place in that occupation occurred when law enforcement shot to death one of the protesters when he tried to go to a meeting and evaded a road block.

It apparently is not the free speech that is an issue but the content of that speech.

Ammon and Ryan Bundy occupy federal refuge in Oregon. (OPB photo)

Ammon and Ryan Bundy occupy federal refuge in Oregon. (OPB photo)

 

Editorial: Judge rules Bundy case evidence will be cloaked in secrecy

That was a futile gesture.

A federal judge has rejected efforts by the Las Vegas Review-Journal, Battle Born Media and The Associated Press to be privy to evidence provided to the defense attorneys for the 19 defendants accused in the armed standoff at the Bundy ranch in Bunkerville in April 2014, meaning that most evidence will remain veiled in secrecy until the trial next February.

The judge did state that information already in the public domain — such as Facebook, Twitter and YouTube postings — could not be declared secret. The cat may not be put back in the bag, as one wag argued.

Bundy ranch standoff. (Reuters photo)

U.S. Magistrate Judge Peggy Leen wrote in her order this week, “All materials produced by the government in discovery in this case, including, but not limited to: grand jury transcripts, agency reports, witness statements, memoranda of interviews, and any documents and tangible objects produced by the government shall be treated as confidential documents. Information and documents in the public domain are not confidential documents.” Protective order 7-15

The judge warned that defense attorneys may not even share notes relating to the contents of discovery with anyone not employed to assist the defense, and anything filed in court relating to the discovery must be filed under seal.

Judge Leen based her ruling on the belief that, “The victims and witnesses in this case are vulnerable to cyberbullying, threatening communications, and intimidation from Bundy supporters who have demonstrated their ability to rapidly disseminate images and private information about victims and witnesses and encourage people to contact victims and witnesses. These tactics ‘have the potential to disrupt and prejudice the truth finding function of a trial by influencing potential witnesses or chilling their willingness to testify.’” Order 7-15

She determined this even though almost all of the 22 allegations of intimidation are two years old and nothing substantive has come of any of them.

The defendants face felony charges that include conspiracy, obstruction, extortion and assault, which carry penalties of up to 50 years in prison. The standoff occurred after armed Bureau of Land Management law enforcement agents attempted to roundup Cliven Bundy’s cattle after he had refused for 20 years to pay grazing fees in the Gold Butte area. The BLM said he owed $1 million in fees and penalties.

Armed Bundy supporters outnumbered the BLM agents 4-to-1, the court claims, and the agents eventually released the cattle and left to avoid potential bloodshed.

Attorney Maggie McLetchie, who represents the media in this case, told the Las Vegas newspaper after the recent ruling, “From the media’s perspective, the order still cloaks much of the information about this case in secrecy despite the heightened need for transparency the judge recognized when allowing the media to intervene. It is deeply troubling that so many documents will be automatically hidden from public view.”

The lack of public scrutiny means that any extenuating or mitigating circumstances that the public might shed light on will not come until the time of trial, when it might be too late.

One glaring example of this is the court’s continued referencing to the fact that a couple, Jared and Amanda Miller, who were at the Bundy ranch during the standoff latter ambushed and killed two Las Vegas police officers in a restaurant and “draped a Gadsen (sic) flag over one of the officers, and shouted to patrons that this was the start of ‘a revolution.’”

Never mind that it was a Gadsden flag, the court makes no mention of the fact the Bundy’s say they kicked the Millers off the ranch due to their left-wing radicalism.

In a motion filed in support of opening up discovery to the press and the public, McLetchie argued, “One of the most critical aspects of news reporting is to inform the public of justice being carried out in the courts. In this regard, the press is vital to the health of a democracy. … This right is anchored in the value of keeping ‘a watchful eye on the workings of public agencies,’ and in publishing ‘information concerning the operation of government.’ … ‘In short, justice must not only be done, it must be seen to be done.’”

The attorney for at least one of the defendants plans to appeal the secrecy decision.

A version of this editorial appears this past week in some of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel,  Sparks Tribune and the Lincoln County Record.