The Oregon Standoff, Black Lives Matter, and Criminal-Justice Reform

The standoff in Oregon between armed militias and federal law-enforcement provides a great moment for reflecting on some of the lessons of Black Lives Matter and the criminal-justice-reform movement that grew over the last year.

The antigovernment protesters took over the headquarters of the Malheur National Wildlife Refuge in support of two ranchers convicted of committing arson on public lands and have vowed “to stay as long as it takes.” The standoff—and the reaction to it—has implications far beyond Oregon: It touches on law enforcement’s reaction to protests nationwide, mandatory-minimum sentences, and even the terms we use to label protesters.

One obvious—and consequently widely remarked-upon—point is about double standards: Given how individual African Americans or groups of people of color have been labeled, why is a group of armed men who have forcibly occupied a government building being referred to simply as a “militia”? (The frontrunner for alternative proposal is the clever “Yallqaeda.”) If they were black, argued Salon, the crew led by Ammon Bundy would have been killed. These points were also made after Cliven Bundy, Ammon’s father, mounted a stand in Nevada in 2014, and they are worthwhile.

They shouldn’t necessarily dictate policy, though. One of the more striking reactions to the Bundy occupation has been the demand that law-enforcement officers go in with guns blazing to remove the occupiers. “People across the globe have marveled that federal authorities didn't move to take back the Malheur National Wildlife Refuge,” the AP reports, though politicians from Senator Harry Reid to Ted Cruz, the Texas senator who is seeking the GOP presidential nomination, called for a peaceful resolution.

Even if one finds the double standard on media descriptions galling, that doesn’t mean the answer is to apply excessive force equally to white and black people. One major argument posed by police reformers is that more police presence and action isn’t always better. Activists have accused authorities of overpolicing or being far too quick to resort to lethal force in New York, Ferguson, Cleveland, Chicago, and Baltimore. Critics have also complained that police aren’t trained adequately in how to defuse tense situations and are too quick to resort to force, whether lethal or not.

In Oregon, the FBI seems to be taking that lesson to heart. While the bureau has been intentionally minimal in giving out details, it says it’s working with local law enforcement to end the standoff peacefully. “This is not an armed takeover of school, which demands a dramatic response,” said Steve Ijames, a retired police officer and expert on use of force, who said officers have to balance the importance of setting an example to lawbreakers with common sense. “There are all kinds of discussions about the end game. Do we save face? Do we avoid appearing heavy-handed? Do we want to get in a shootout with a bunch of ranchers from Nevada, on principle? … How do we cause this to be resolved with the least damage?”

The point here is not to let the Bundy gang off the hook. It’s to ensure effective prosecution without loss of life. Ijames said federal law-enforcement officials learned some tough lessons about how to deal with tense standoffs like this. Even if the federal government has seen some roughly similar situations, there’s still no single playbook for a case like Oregon. Police deal with people who have barricaded themselves all the time, but most of those cases are people involved in minor crimes who are acting in self-destructive ways. There are few out-and-out standoffs like a bank robber holed up, and even fewer liked the armed band at Malheur, Ijames said. Even the 1993 Waco siege began when ATF agents tried to serve search warrants at the Branch Davidian compound for suspected weapons violations—not with the seizure of a federal building, as is the case with the Bundys.

The demand the Bundy crew be labeled as “terrorists” or an “insurrection” is closely intertwined with these questions about how to resolve the standoff. Using the label implies that police ought to use whatever violence necessary to end the takeover. Isn’t that how terrorist attacks are handled?

There are often immediate demands to label all sorts of violence and criminality as terrorism, but there are good reasons to use the term sparingly. The words that describe crimes matter. This is as true of the Oregon showdown as it was in the early days after the San Bernardino shooting, when the facts were not yet clear. Introducing “terrorism” as a label creates certain demands and pressures on how the state reacts, how the legal system handles a case, and how the general population responds—generally verging toward hysteria, in the latter case. The Bundy militia is clearly in violation of the law in seizing the building. Like a terrorist group, it has political goals—a vague set of grievances about federal management of lands and accusations that the government is pushing ranchers out. (The AP reported that the Bundys say they sent specifics to authorities, but have not released them publicly.) But it’s not clear what material danger they pose—despite their posturing about willingness to die. After all, the 2014 Nevada Bundy demonstrations were resolved peacefully, and there’s no active gunfire here.

“You have basically a protest manifesting as the takeover of public property,” Ijames said. “They’re obviously doing this on principle, whatever that principle might be.” In this way, there’s another similarity with protests in Ferguson and elsewhere, he added: “To some degree it’s not dissimilar from the concept of Black Lives Matter: it’s pushing back on government, it’s pushing back on people in power.”

The occupiers may not have the same goal of peaceful resolution that the feds do: Ryan Bundy told an Oregonian reporter they are “willing to kill and be killed if necessary.” On the other hand, his brother Ammon Bundy told NBC, “The only violence that, if it comes our way, will be because government is wanting their building back. We’re putting nobody in harm’s way. We are not threatening anybody. We’re 30 miles out of the closest town.”

Just as protestors sometimes seek to provoke police overreaction, thus damaging police credibility, this looks like a ploy for federal overreaction. As the deadly 1990s standoffs in Waco and Ruby Ridge showed, that doesn’t always redound to the benefit of law enforcement. That’s another reason not to play into the militia’s hands.

Finally, there might be a measure of sympathy among liberal criminal-justice reformers for Dwight and Steven Hammond, whose legal battle inspired the standoff, if not for the methods of their self-appointed supporters. As Marina Koren explained, the Hammonds were tried for lighting fires on land owned by the Bureau of Land Management, which they had leased for cattle grazing. They were convicted of arson on federal lands, but argued the five-year mandatory minimum sentence was unconstitutional. The trial court agreed, but on appeal the mandatory minimum was upheld.

There’s a growing, bipartisan movement to reform mandatory minimums. Designed to avoid judicial discretion, they’ve ended up simply shifting influence to prosecutor. That’s resulted in often outlandish sentences, which tend to fall disproportionately on people of color. In July of last year, President Obama called for Congress to overhaul mandatory minimums. As my colleague Garrett Epps has pointed out in a series of blistering tweets, a conversation about mandatory minimums and excessive incarceration has to include cases like the Hammonds.

Many progressives have become fluent in the arguments for police restraint, restraint about labeling terrorism, and reforming sentencing laws. The challenge now is for them to translate those arguments into a case where the subjects are not so sympathetic and don’t agree with them.