WASHINGTON -- Earlier this year, Ammon Bundy, the son of famed anti-government militant Cliven Bundy, led an armed seizure of a remote federal property in Oregon. Proclaiming that he was prepared to stay for years, he demanded the government free two imprisoned ranchers and give up federal lands. "We need you to bring your arms and we need you to come," he said, reaching out to supporters at a press conference.
Duane Ehmer, a cowboy, showed up late with his horse, Hellboy. He’d been shoeing horses in Heppner, Oregon, when a friend told him to head over and find out what was going on with the militants. They seemed like nice people, Ehmer decided, so he stayed. "Ehmer was there out of curiosity, to support the [imprisoned ranchers] and to feed cows," his lawyer wrote.
Ehmer bragged on social media about doing guard duty, which meant standing by the road blockades. He also liked to put on his USA jacket and ride around on Hellboy, carrying an American flag and a 1860 cap-and-ball revolver. When law enforcement asked the militants to leave, he complied and tried to encourage others to go, according to his lawyer.
The occupation of the Malheur National Wildlife Refuge was haphazard and chaotic; people came for vastly different reasons. But despite their own varying roles, actions and motives, 26 people, including Bundy and Ehmer, now face the same charge: conspiracy to impede federal officers, a felony that carries a maximum six-year prison sentence. (Some of the occupiers face other charges, too.)
Laws against conspiracy are based on the idea that a group of people who coordinate to commit a crime tend to be more dangerous than a lone actor. They make it illegal for people to agree to commit a crime, even if the ultimate crime never happens.
Conspiracy charges are popular with prosecutors, who can use them to lump together leaders, like Bundy, with foot soldiers or fellow-travelers, like Ehmer. In the Oregon case, accusing such a wide range of people of the same crime risks blurring the line between supporting the occupation, witnessing it unfold and actively participating.
The law that federal prosecutors are using against the Oregon occupiers forbids agreeing to impede a federal officer by force, intimidation or threat. Under this specific law, the government doesn't have to prove that any of the defendants impeded federal officers. It doesn't matter whether or not Ehmer himself erected barricades, intimidated federal employees or verbally threatened officers. To convict Ehmer or any other defendant, the government only needs to prove that person agreed with the goal of impeding federal officers by force, intimidation or threat.
"The key issue in a conspiracy case is what was going on in the defendant's mind," said Laurie Levenson, a former federal prosecutor who's now a professor at Loyola Law School in Los Angeles. "If they think they were agreeing to commit a crime, then they crossed the line."
That's why people who played much smaller roles in the occupation than Bundy could face the same punishment: It's all about intent. Alone, a nonthreatening Facebook message or verbal statement isn't enough to get someone in trouble. But in the case of these defendants, speech that would otherwise be protected by the First Amendment could land them in prison. (A spokesperson for the U.S. Attorney's Office in Oregon declined to comment, citing active litigation.)
It may seem bizarre, but "speech itself can constitute criminal conduct when the crime is a criminal agreement," explained Lisa Mathewson, a Philadelphia attorney who often defends clients in conspiracy cases. A defendant doesn't have to "take any action at all that is illegal in order to enter into an illegal agreement. He could be sitting on a beach."
Some of the militants made statements that might be read as admissions they were working together toward a common and illegal goal. A handful of occupiers, including Ammon Bundy and his brother Ryan, gave regular press conferences in which they made their demands. Ryan Bundy told a reporter that they were willing to "kill and be killed if necessary." Jon Ritzheimer, a notorious anti-Muslim activist who often walked around the grounds of the wildlife refuge with a gun visible on his hip, said in a video, "We need you to get here and stand with us. … That's what's going to prevent any bloodshed, the more people that get here, whether you're armed or unarmed."
But other people charged with conspiracy made more ambiguous statements. Pete Santilli, a conservative radio host from Ohio who did not stay at the wildlife refuge and often wore a large press vest, was charged even though he insists he was merely acting as a sympathetic reporter. The feds note that Ammon Bundy told Santilli in a YouTube video to "let everybody know" that "we're continuing the stand." Santilli responded, "OK."
The government could read "OK" as "I agree," said Ellen Brotman, a criminal defense attorney in Philadelphia. But it could just as easily mean, “OK, you do that!” or “I understand what you’re telling me."
Brotman said generally that the problem with relying on communications made through social media or other more-casual means is "the extent to which they can be misread or taken out of context." The lawyer pointed to a different example in which a drug dealer’s girlfriend answers the phone, it’s a buyer, and she puts her boyfriend on the line knowing a transaction will be made. The girlfriend is now arguably a co-conspirator to the drug deal, but she only agreed to put someone on the phone.
Oregon lawyer Mike Arnold, who is representing Ammon Bundy, said he expects evidence to exonerate his client and the others. But "if the government wants to talk about the intent of a so-called conspiracy," he said, "I guess I'll have to concede that there was a conspiracy [to] educate, to inform and to effectuate political change. ... There were a lot of like-minded people who wanted to be heard."