Mimesis Law
24 January 2020

How Salon Botched The Bundy Verdict

November 4, 2016 (Fault Lines) — Impressive. Not half a sentence into Chauncey DeVega’s op-ed, which is ostensibly about the verdict in the Ammon Bundy trial, he’s already ranting about Trump.

During the 2016 election season, Donald Trump’s rise and run for the White House has drowned out numerous important news events. One such neglected news story is the trial of Ammon Bundy, his brother Ryan and five other confederates who took over a federal wildlife preserve in Oregon last winter.

This pretty much sets the tone for what’s to come. Sure, it’s provably ridiculous to call the Bundy verdict a “neglected news story.” No, Trump doesn’t have anything to do with it; in fact, he’s so utterly irrelevant to the verdict and the questions it raises that I half-suspect DeVega of auditioning for a job at the New York Times. And a thoughtful person might ask: supposing it to be true that the endless, mindless Trump coverage detracts from important issues, who’s to blame? Surely not Salon itself?

But these are considerations for a more civilized age. DeVega and his ilk deal in passion, not reason. And in the face of the onslaught of feelz, all we can do is be swept along.

The group was arrested in February after a six-week-long occupation of the Malheur Wildlife Refuge during which they defiled Native American artifacts and burial grounds, broke into a federal facility and threatened police and other officials with assault rifles and other weapons. At the end of the siege, LaVoy Finicum, the spokesman for Bundy’s militants, was shot and killed by an FBI agent after pointing a gun at him.

Despite the overwhelming evidence against the Bundy militants, on Thursday a federal jury in Portland acquitted them of federal weapons and conspiracy charges. This shocked many observers. It should not have.

Oh? Passing over the fact that “assault rifle” has a meaning, one that isn’t “whatever Salon writers want it to be,” and that none of the Malheur occupiers actually had a gun of that description, why shouldn’t we be surprised by the verdict? After all, DeVega’s absolutely right when he says the feds had a mountain of evidence. It’s not like they went into this one at a disadvantage.

Black Americans and other people of color often talk about how there is one legal system for “them” and another for “us.”

As the social-media hashtag #CrimingWhileWhite signals, there is a dual system of justice in the United States of America. One exists for white people — especially white conservatives and other members of the right wing — and a separate one for people of color and Muslims. This is white privilege weaponized through the law.

Wow! That, uh… that certainly is an opinion! One that reflects the kiss of death to thought.

It’s too bad: one paragraph ago, he had the tail end of an interesting and useful question to ask about the outcome of this case. And instead of going for it, he chose to discuss “weaponized white privilege.” (Would it be rude to inquire if white privilege constitutes an assault weapon?)

This fact is readily exposed by asking basic questions and through clear observations and reason.

Someone should tell Shaun King, so he can stop doing all that research.

Consider: What if Ammon and Ryan Bundy were Muslims? Would their group be described as “terrorists” or as the much more benign and folksy “militia members”? Would the jury have found a compelling defense in Ammon Bundy’s explanation that his religious beliefs inspired him to take over the federal land at Malheur Wildlife Refuge — especially in a country that is not supposed to be a theocracy?

I am considering. Unfortunately, it’s still dumb.

As Fault Lines contributor Noel Erinjeri points out in his brilliant Halloween explainer of the verdict, the “the jury was a bunch of dumb, racist hicks” explanation that’s been percolating through the media fails to capture what happened. If anything, the email Juror #4 wrote to The Oregonian to explain how they reached their decision shows them to be nuanced and astute thinkers (to the dismay of lawyers and other cynics who like to pretend jurors are inevitably clueless).

In a nutshell, the problem is this. The feds decided to use their mountain of evidence to charge Bundy and his group with conspiring to impede federal officers, and the jurors agreed that what the government had showed “impeding.” But for the government to show conspiracy, they had to additionally prove that the militiamen reached an agreement to impede federal officers before the fact. And this they could not do.

According to Juror #4, the jury reached out to the judge and asked why the government didn’t pick a charge it could’ve proved with its mountain of evidence (like 25 CFR 11.411, criminal trespass). The judge speculated it was because they wanted the meatiest sentence they could get; as Noel points out, if true, the feds screwed up doubly hard, because they could’ve opted for 18 U.S.C. § 111(b) (forcibly impeding a fed with a deadly or dangerous weapon) and had it both ways.

But the fact of the matter is that federal prosecutors overreached, tried to get a conviction on charges they couldn’t prove and fell flat on their faces. Given that Salon, like most publications of its outlook and sophistication, imputes credibility to the feds when they do things like criticize the police departments it hates so much, it’s not surprising that DeVega fails to give blame where blame is due. Much easier to accuse white Oregonian hicks of being white Oregonian hicks – especially when you know your audience will lap it up.

The rest of the article could be passed over in silence, because from here on out, it abandons all pretense of coherence and becomes a rant about things DeVega hates. But if we did, we’d be missing out.

Members of the Standing Rock Sioux tribe have been peacefully protesting against Energy Transfer Partners and its efforts to build a pipeline on their sacred land. This oil pipeline is an environmental hazard that will despoil the land and water. Police and mercenaries have beaten, maced and otherwise assaulted peaceful, unarmed protesters, in addition to dispatching dogs on them.

Such force is not typically used against armed white militias who are violating the law.

Like David Koresh’s?

The Guardian newspaper, as well as organizations such as the Southern Poverty Law Center, have also identified the right-wing militia and sovereign citizen movements as being a threat to local order and government in areas across the rural parts of the United States.

The same Southern Poverty Law Center that just labeled Ayaan Hirsi Ali and Maajid Nawaz, the well-known liberal reform Muslims, as extremists.

Black adults and children who have toy guns in their hands are routinely shot and killed by America’s police. Yet, white men (and women) who are armed with real guns can brandish them in the street and even go so far as to point their weapons at police without being killed or otherwise harmed.

Hear that? That’s the sound of Nick Selby’s eyes rolling. Generalizations like these help nothing and no one, and what little data there are suggest anyone, regardless of skin color, who points a gun or a lookalike* at a cop is in grave danger.

Not that DeVega cares: since the fact that one of the militiamen actually was shot and killed, supposedly for pointing a gun at a cop didn’t dissuade him from saying this amazingly dumb thing, appeals to reason won’t do much good. And it’d be mean and just piling on to point out that in a recent study, cops were found to be less likely to use deadly force on blacks than on whites – probably because of the likelihood of being written about by someone from Salon.

Thursday’s acquittal of the Bundy militants, by an all-white jury, is a de facto endorsement of political violence by conservatives and other members of the American right-wing against the United States government.

As I have explained in an earlier Salon piece, if there is political violence in the United States on Election Day or thereafter, such an outcome will not be the result of one singular event. A jury’s decision to acquit the right-wing domestic terrorists Ammon and Ryan Bundy and their cabal is but one more step in a long march toward the next Timothy McVeigh.

Sadder still than the knowledge that DeVega has written more of this stuff is how easily a sentiment like this could’ve come from someone objecting to Brown v. Board of Education. Objectively, what he says makes no sense – there’s no connection between prosecutorial incompetence and conservatives endorsing political violence – but to someone who rabidly hates a group because of identity politics and wants to see the government make them suffer, it no doubt seems quite logical.

We get it, DeVega. A reversal like this sucks. But contrary to what you may believe, it doesn’t amount to an endorsement of what happened at Malheur. Instead, the jury struck a blow for reason and legal literacy, two things that are in shockingly short supply in the nation right now. We need a lot more Jurors #4, and a lot fewer op-eds like this.

*And you’d be surprised at what, to a cop, can look like a gun.

3 Comments on this post.

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  • max
    4 November 2016 at 2:23 pm - Reply

    “At the end of the siege, LaVoy Finicum, the spokesman for Bundy’s militants, was shot and killed by an FBI agent after pointing a gun at him.”

    This sentence alone tells a great deal about how the Salon author is unaware of the facts of the incident upon which he is hanging his premise.

    Finicum was killed on Jan. 26, the ‘siege’ (it wasn’t much of a siege, the police stayed away for the most part, something which supports the article’s theme) ran from Jan. 2 to Feb. 11 – if that was the end of the ‘siege’ then Japan attacked Pearl Harbor at the end of WWII.

    Finicum was shot and killed by two Oregon State Police troopers. I suppose there might be some relevance to the investigation which concluded that a single FBI sniper probably fired two shots at the vehicle Finicum was in, despite an apparent coverup of that fact, but he wasn’t shot and killed by an FBI agent.

    Finicum was not pointing a gun. The initial story told was that he was reaching for a gun in his pocket, although later the story was that he several times made a move with his hands as if to grab a pistol in his pocket, and then that he assumed a combative stance against an approaching OSP trooper and made a gesture as if drawing a gun, and a couple of other variations but in none of them did he have a gun in his hand much less pointed at anyone.

    I’m not defending Finicum; getting involved in a police chase, attempting to run a roadblock, & screaming at police to shoot you are all behaviors which qualify for a Darwin Arward without considering the takeover of the refuge, but when an article gets so many basic facts wrong at the beginning what is the reader to do?

    • David Meyer Lindenberg
      5 November 2016 at 10:57 am - Reply

      You’re right, and it’s amazing how quickly we accept these first-past-the-post media narratives as fact. I’ve updated the article to reflect your contribution. Thanks.

  • Coley
    5 November 2016 at 9:39 am - Reply

    I keep imputing decency & reason to liberals I *know* to be intelligent people…but I’m pretty much done giving them the benefit of the doubt. A FB friend posted this video the other day, & I merely pointed out how one of the Bundy bunch was actually killed rather than being greeting like an old friend (this fact was completely left out of the video). She jumped down my throat like a rabid dog, ranting about treason. A LIBERAL ranting about TREASON! What a time to be alive.