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The Unexpected Oregon Militia Ruling and Understanding Criminal Conspiracy

Most have probably heard by now of the Oregon Militia which occupied a federal building in Oregon. For those who have not, the cliff notes version is that a group of armed militia forced their way into the Malheur National Wildlife Refuge and stayed in the building, preventing all others from entering, for 41 days in a standoff with police. The militia stated that the occupation was in protest of the imprisonment of two ranchers for arson and the federal government’s mismanagement of land. The militia members were ultimately arrested on Jan 26th in a confrontation in which one member of the militia was shot to death.

Following their extremely public armed takeover of a federal building, it seemed certain that this militia would face—and be found guilty of—several criminal charges including conspiracy to prevent federal employees from performing their jobs through intimidation, threats or force, and firearms charges.  Of the 26 militia members arrested, 11 pled guilty to charges brought against them immediately.  However, in a shocking recent decision, the leaders of the armed Oregon militants were, all seven including the masterminds Ammon and Ryan Bundy, found not guilty of all charges—including conspiracy charges—against them. One defendant was even found not guilty of stealing federal property after he admitted in court that he took and used a government vehicle. The ruling was surprising even to the militants’ own defense lawyer, who said in interviews after the ruling that he had already been telling his clients to expect to be found guilty.

Oregon Militia Ruling

The acquittals have led many to note the stark contrast between the treatment of those who staged an armed invasion in Oregon—cleared of all charges and allowed by authorities to leave for Chinese food and return again to the refuge—and the unarmed, peaceful Dakota Pipeline protesters—mass arrested, set on by dogs and sonic guns, horses shot by police, sprayed with water cannons on below freezing nights, tents bulldozed, and more.

Dakota Pipeline protesters have themselves said that they had considered arming, but not only believed that a peaceful protest was more effective but were certain they would all be killed if they chose to arm themselves. With this in mind, the ruling has been a source of frustration and anger for many who feel that it shows a gap between the treatment of white people and persons of color in the justice system. However, while the contrast between the treatment of the two groups is indeed notable, jurors on the Oregon militant case have come forward and said that source of their ruling was not their approval or belief in the militants’ actions but instead the failure of the prosecution to prove the elements of conspiracy

Conspiracy is Complicated.

Conspiracy is, without question, one of the most complicated subjects that exists in criminal law.  It is not hard to believe that a jury was unconvinced of all the elements of this extremely complex crime.  At its base, a criminal conspiracy is the agreement between two or more people to commit a crime.  However, the evidence required to prove that an actual conspiracy occurred goes further than this simple explanation would lead one to believe.

The most basic evidence required is the evidence that the conspiracy actually occurred; that two or more people made an agreement to commit a commit a crime. However, from this point the evidence moves to determine the state of mind of the parties when they made this agreement—a much more difficult thing to prove.

Conspiracy is a specific intent crime. This means that it must be done with the knowledge of what you are doing and the objective of completing an unlawful activity. In order to prove this, the prosecution must establish several things. First, they must show that the defendant intended to agree to commit a crime at the time the agreement was entered. Second, the prosecution must prove that the defendant intended to accomplish the criminal objective of the would-be conspiracy when they entered the agreement. If for instance, somebody agreed to rob a bank but in their own mind they actually planned to skip town the next day they would not be guilty.

To say that this can be extremely difficult to establish would be an understatement. After all, the only direct evidence of this intent would be in the mind of the defendant themselves unless they decided to write down or record that state of mind as they made the agreement.  As you might imagine, situations with direct evidence are extremely uncommon. So it is far more common to see intent proven through circumstantial evidence such as a defendant’s actions after the agreement and what the defendant stood to gain if the conspiracy was carried out

In this case, where the militants were accused of conspiracy to prevent federal employees from performing their duties, there would need to be evidence of an agreement to achieve this goal and specific intent to follow through with it. The militants argued that, while they did discuss occupying the buildings, they never actually discussed stopping any individuals from working.  Instead, they argued that they only wanted the lands and buildings themselves. While preventing employees from working seems like a near certain outcome of armed occupation of the lands, if this argument were bought it would mean they the militants never formed an agreement with the intent to commit the crime they are accused of conspiring and not guilty.

While this was likely the lynchpin of any legal determination of innocence by the jury in this case, it only touches the tip of the iceberg when it comes to the complexity of proving criminal conspiracy.  Defendants must also be established to have knowledge of the existence of the conspiracy and the illegal object of the conspiracy. In most states, they must also have been shown to have taken a substantial step towards or an overt act in furtherance of the crime that is the goal of the conspiracy. Exactly what can constitute such an act or step can vary from state to state—and a discussion of what exactly is the minimum that can constitute such an act or step could be the subject of a book—but an example might be purchasing a gun to be used in a conspiracy to rob a bank.

This may seem like a lot hoops to have to jump through to prove conspiracy, but the punishment for conspiracy requires a rigorous evidentiary standard. In a conspiracy, each conspirator is on the hook for the criminal acts of every other conspirator so long as the crimes were committed in furtherance of their conspiracy—whether they knew about them or not. There are some states where a person found guilty of conspiracy is sentenced to penalties related to, but less than, the punishment for the crime they conspired to commit.  However, in the majority of states—including Oregon—a person found guilty of a conspiracy to commit a crime will receive the same sentencing as if they had committed the actual crime.

What This Case Means for the Future.

The result of this case has shaken many to the core—from those who argue it reveals a two-tiered justice system to the Oregon federal workers who have stated that they are left in fear after what they worry could be taken as a tacit approval of the militants’ actions—encouraging further action in the same vein.

The Bundy’s, who led the militia, aren’t totally off the hook.  Even though they are acquitted, they still will not go free just yet as they also need to stand trial in Nevada for an armed standoff with authorities over unpaid grazing fees. Although, this is unlikely to do much to assuage concerns as five other militia members walk free.

The legal reality is that conspiracy is a very complicated and difficult to prove area of criminal law, it is very possible that there simply was not enough evidence to mount a fully effective case on this issue. It is even possible that the evidence was lacking when it came to firearms charges and stolen federal vehicles. That may be the legal reality, but it is unlikely to combat the perception of injustice created by the contrast between the result of this case and the treatment of protesters such as those at the Dakota Pipeline.

Jonathan Lurie


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