The Crackpot Alternative Legal System That Threatens To Escalate The Oregon Standoff
by Alan Pyke
CREDIT: AP Photo/Rick Bowmer
A man dressed as continental army officer walks through the Malheur National Wildlife Refuge Sunday, Jan. 10, 2016, near Burns, Oregon.
Events in Harney County, Oregon, seem to be taking a turn toward escalation.
Armed men have been occupying a wildlife refuge for two weeks by now, saying they’re taking a stand against the federal government’s management of public land. They’ve recently stepped up their acts of protest: Earlier this week, they used a federal bulldozer to tear down a fence dividing private ranchlands from the public’s terrain at one edge of the refuge, which represents a more direct flouting of the law than even the occupation itself.
And now, they say they want to enact an alternative legal system throughout the region — one that’s governed by a bizarre set of principles that animate a wide swath of conspiracy theorists. Underpinning this new chapter in the Oregon occupation is a convoluted misinterpretation of American law and history that thousands of defiant Americans use each year primarily to protest their tax bills and fight minor bureaucratic disputes.
Here’s what you need to know about the “common law” practices being deployed by the Bundy bunch, and how these developments could put the complex situation in southeastern Oregon on a still-stranger path than it’s followed so far.
What exactly are the Bundys trying to do now?
The Bundy-led brigade hopes to replace Harney County’s elected leaders and sheriff with people who will operate the area according to the sovereign citizen movement’s interpretation of the law.
The occupation at the wildlife refuge is being spearheaded by a small group of people who support sovereign citizenship (and the Bundys have arguably become the most well-known faces of that movement). Individuals who identify as “sovereign citizens” believe they are not subject to the laws and orders of the United States government. In their view, the authority of local officials is moot if they follow those same government rules.
Now, the occupiers want to install a “lawful county government and a lawful sheriff” and make Harney County “the first constitutional county in the land.”
Who are they working with?
The militiamen have partnered with a man named Bruce Doucette, a self-proclaimed “Superior Court Judge.” Doucette appointed himself a judge last May under the legal system that sovereign citizens use. He’s intervened in local disputes before in Colorado, using his self-vested authority to try to order the arrest of a Colorado sheriff.
He is also a conspiracy theorist. Doucette believes the earth is actually flat — “But if you go outside place a globe on the ground and pour water on it dose it stay on the globe ???” — and that both the Boston Marathon bombing and 9/11 attacks were hoaxes perpetrated by the government.
“Their intentions and our intentions of what we wanted to do coming out here are exactly the same,” Doucette told supporters on a conference call Wednesday. “Not only do they want to give property back to the people and do that lawfully, but they also have a lot of information on the current county government and it could go all the way up to the White House.”
“People are gonna go to jail over this one,” he added.
How would this all work, exactly?
The group appears to be planning to convene a 25-person “grand jury” to hear charges against the people who currently govern Harney County. Such a proceeding would likely revolve around both the criminal arson trial that put local ranchers Dwight and Steven Hammond in a California prison for the next four-plus years, but could also draw in other local grievances against duly appointed and elected officials whom anti-government radicals believe are illegitimate.
A people’s jury of this sort has no actual authority beyond the ideology — and guns — of the people serving on it. That’s where the potential for violence comes in in Harney. Insofar as people like Doucette and the Bundys believe this “grand jury” would give them legitimate authority to go arrest people, it is a crackpot idea.
By contrast, informal criminal trials have sometimes been used as a tool of peaceful protest. Vietnam War protesters convened a “war crimes tribunal,” for example, to put high government officials on trial — and create a formalized record of the protesters’ grievances.
“It’s sort of a classic means of protest, calling yourself a jury,” Reason magazine books editor and author of The United States of Paranoia Jesse Walker said in an interview. “So is this going to be one of those things where they have a [Vietnam era]-style grand jury and they issue pronouncements, but it’s just meant as a form of public protest? Or is it a case where maybe there are some hotheads there who think they now have the right to go out and arrest the sheriff or something like that?”
Why do they think they need an alternative legal system?
These parallel legal structures, including Doucette’s imaginary judgeship and the “grand jury” he might empanel to go after Harney officials, are the logical endpoint of a much more complex web of legalistic paranoia.
The core belief in play, according to a 2010 article from J.J. MacNab published in the Southern Poverty Law Center’s magazine, is that at some point in U.S. history, the Constitutional system of government was silently usurped by a shadow government that opens up corporate entities associated with every American born.
Sovereigns believe this shadow authority uses those corporations as borrowing leverage to keep the country financially afloat, MacNab wrote, effectively making every American that abides by that government’s rules a slave. Believers go through a process called “redemption” to sever their personhood from the government’s corporate entity established in their name, and from that point forward seek to resist any action that’s premised on federal authority rather than their own conspiracy theories.
“It’s an alternative legal history,” Walker said. It can be understood as a sort of wacky parallel to some of the grand legal battles waged in courts by mainstream organizations. Civil rights cases brought by the American Civil Liberties Union, for example, often stem from an argument that the governing interpretations of the constitution and other laws are incorrect and should be changed.
“People legitimately accuse x, y, and z of being unconstitutional all the time,” said Walker. “This is the same thing, but being done from a place of extreme crankery.”
What are the legal arguments sovereign citizens make?
According to MacNab, sovereigns have developed a thorny mish-mash of legal tactics they call “common law.”
“There’s this whole history of sort of folk legal beliefs that often come up in context of the tax resistance movement, the tax protester movement,” said Walker. “People claim that under one imagined doctrine or another they don’t have to pay federal income tax, things like that. The sovereign citizen arguments are sort of in that family of beliefs.”
A sovereign citizen named David Myrland who allegedly plotted to “arrest” a Washington mayor provides an example of how sovereigns’ legal ideas look in practice. This is an excerpt from a brief he and another sovereign filed as part of a lawsuit against the prosecutors who put him in prison for three years for threatening officials:
For this federal-judge: David-Wynn: Miller’s-correction of the vassalees-fiction-syntax-grammar-pleadings is with the correction-participation-claim of this babble-indictment-evidence and: bad-probation-syntax=grammar-evidence. (Why did the vassalees do this case with a void-communications?) For the void-drogue-law, void-oath of an office, void-judge’s-oath, void-docking-court-house-vessel in the Washington-state-dry-dock and: void-original-lodial-land-title.
Strings of hyphenated word salad are the primary tool in the arsenal. But they’re far from alone.
“Common law” practitioners like Doucette became such a nuisance in the 1990s that the Anti-Defamation League pulled together a lengthy encyclopedia of their tactics for judges and attorneys to use when confronted with the oddly formal ravings. That compendium — entitled “Idiot Legal Arguments: A Casebook for Dealing with Extremist Legal Arguments” — details scores of different specific tactics by which sovereign citizens seek to prove that while they may be subjects of individual states, they are in no way bound by the United States government.
In one Florida county, for instance, a sovereign citizen woman named Donna Lee Wray submitted 10 separate filings in a fight to avoid having to get a license for her dog. After two months, MacNab wrote, the prosecutor gave up and dropped the case. Wray had won: She would not pay the $20 the county charges for a dog license.
By contrast, Wray’s husband Jerry Kane took the same ideology to the ugliest ends possible. Jerry and his teenaged son Joe killed two police officers in Arkansas in 2010 after the two pulled the Kanes over on the highway. Father and son were both killed later that day in a shootout with other officers.
So will this lead to violence in Oregon?
Not necessarily. While sovereign citizens who reject the American legal system in favor of their own are numerous, sovereign citizen extremists who seek out violence with authorities are very few.
“Most sovereign citizens are nonviolent. They make a nuisance of themselves in lawsuits or sometimes in petty harassment, and it can be really annoying. But the people who actually shoot people are a fringe within the fringe,” Walker said.
MacNab has estimated as many as 300,000 Americans make use of the sovereigns’ eccentric legal code to fight personal court battles. “While many sovereign citizens own guns, their weapon of choice is paper,” MacNab wrote.
A 2015 report from the Department of Homeland Security backs up this point. The report assessed the threat level of the sovereign citizen ideology after multiple police shootouts with such people made the news in 2014. The report listed 24 incidents of sovereign citizen extremist violence over a four-year period starting in 2010, and warned that such “SCEs” pose a threat to law enforcement and government agencies.
But such violence was likely to “remain at the same sporadic level, consisting primarily of unplanned, reactive violence targeting law enforcement officers during active enforcement efforts” rather than involving pre-planned terrorist-style attacks, the report said.
Still, the report’s characterization of SCE violence isn’t wholly comforting when applied to the Oregon situation. “[E]ven when SCEs plot their violence over time, it is often in direct response to an on-going personal grievance, such as an arrest or court order. In almost all of the 24 incidents we reviewed, the targets were the specific individuals who the SCE perceive violated their rights, rather than public symbols or anonymous representatives of the government,” it says.
In Harney County, the specific targets of grievance for those who feel the Hammonds were improperly prosecuted include a state judge and the local sheriff. If Doucette’s court decides to swear out arrest warrants for those men, and the Bundys decide to go out and execute those warrants at gunpoint, things could quickly get bloody.
Does that mean this legal ideology is harmless?
Not quite. The fact that this legal crankery almost exclusively yields nuisance lawsuits and bureaucratic squabbles rather than bloodshed does not mean the ideas behind them are harmless.
Such crackpot notions and “common law” magical thinking will be leading well-intentioned people onto the wrong side of the law all around the country regardless of the ultimate outcome in Harney County, Walker said.
“To me it’s the equivalent of somebody giving shitty alternative health advice. This is alternative legal advice,” Walker said. “I have seen people get themselves into a lot of stupid, unnecessary trouble following this kind of bullshit argument.”
Unnecessary trouble is sort of the Bundys’ brand. They first rose to prominence while resisting attempts to enforce a million dollars in back fines and fees that paterfamilias Cliven Bundy owes for illegally grazing his cattle on protected lands. They’ve made their presence felt at other tense encounters between businessmen and law enforcement in Utah, Montana, and elsewhere.
Now, after law enforcement have declined to deliver a barrel-to-barrel standoff on the Malheur preserve, the Bundys appear ready to turn to “common law” practices to escalate tensions there. Their presence has already endangered a hard-won sense of community among the various private and public interests on and around the Malheur public lands. If they do indeed try to arrest Harney officials, the consequences for the Bundys and locals alike could be far more serious.
“People are throwing their lives away thinking they can be protected by these magic arguments, and then ending up in jail,” Walker said.