The Oregon Standoff and Strategies to Fight Politically Inspired Violence

by Neil H. Buchanan

The new year brought with it a strange new criminal/political event, in the form of an anti-government group's armed takeover of a building at a National Wildlife Refuge in a remote part of Oregon.  It turns out that the leader of the group is a son of the rancher who came to fame some time ago for threatening violence against federal agents, threats that were prompted by the federal government's efforts to enforce grazing laws that the rancher had been violating for more than two decades.  (Professor Dorf wrote an interesting post about that situation in April of 2014.)

The details about this new standoff are interesting, in a perverse way, and they tell us a lot about the sense of grievance that has been incubating for a long time among certain fringe elements on the right.  My purpose here, however, is not to discuss the legal merits of the Oregon situation (which are obviously quite one-sided), but instead to put this new standoff in the context of this country's approaches to preventing and (when prevention fails) responding to acts of violence and threatened violence.

In late November of last year, after the Paris terrorist attacks, I wrote a series of posts here on Dorf on Law (here, here, and here), in which I argued that the correct response in the United States and elsewhere should not be to freak out and overreact.  In essence, I argued that there was nothing about the violence in Paris that would lead an informed person to think that the underlying threats that we all face had changed in any meaningful way.

For a simple analogy, everyone who drives a car knows that they might someday become injured or killed in a crash.  Most people are lucky enough never to see that possibility become a reality.  Others, however, will have one or more such experiences.  When people do have an accident, they of course become hyper-cautious for some period of time afterward.  Eventually, they get over it and get back to their normal lives.

Harkening back to an earlier era of transportation, there is a reason that people often invoke the cliche about "getting right back on the horse after falling off."  The idea, of course, is that people who are panic-stricken in the immediate aftermath of an accident need to be reminded that they are focusing excessively on a very salient, but rare, event.  There is no sense in ruining one's life by crawling into a cocoon and imagining that life's risks can be reduced to zero.

Even so, as I explained in my November posts, it is also completely sensible to use a dramatic event as a moment to reassess the wisdom or foolishness of our daily activities.  If the car accident happened because the driver regularly fails to check his blind spots, then it would be silly indeed to say, "Well, accidents happen.  No need to change anything."  What we want is not to refuse to change but to try to take new information into account without over-emphasizing events that can never be completely prevented.

In the context of post-Paris discussions about terrorism, many Republicans in the U.S. (joined by a small number of Democrats) encouraged a full-on national freakout about the possibility of Muslims coming to the U.S. to carry out terrorist attacks.  This quickly morphed into insane proposals to allow only Christian refugees into this country (Jeb Bush) or to bar all Muslims from entering the U.S. (Donald Trump).  There was nothing at all about the Paris tragedy that called for such responses, making the political responses nothing more than hate mongering.

Similarly, when a few weeks later two people in San Bernardino who were apparently inspired by Islamic State propaganda killed 14 people and injured 22 others, the Republicans' response (including from putative moderates) was extreme.  President Obama did not take the bait, understanding that the San Bernardino attack was an example of the type of terrorist attacks that we always knew were possible.  He realized that not every violent attack can be prevented.  Even so, he ended up apologizing for failing to anticipate the inevitable (and somewhat understandable) emotional overreaction that would surely follow the Paris and San Bernardino tragedies.

And now we have the federal government in a tense standoff with armed men who are motivated by hatred and fear.  Reportedly, the government is proceeding cautiously, trying to prevent violence and reach a peaceful resolution.  This is entirely reasonable, especially in light of the fatal incidents at Ruby Ridge and Waco in the early 1990's (which apparently then led to the Oklahoma City bombings in 1995).

Again, however, all of this fits the larger narrative of vigilance in the face of incidents that are essentially inevitable, even if they cannot be predicted.  The federal government has long monitored hate groups, sometimes preventing violence from occurring.  (See information about one such foiled attack in 2010 in Michigan here.)  An important goal of such monitoring is to determine whether an occasional incident is simply part of the longer term pattern or is instead an indication that something new is developing.  If the nutcases in Oregon are on the leading edge of something bigger and scarier than anything that has gone before, then we would want to know.  New strategies might be needed.

Based on what we know now, however, there is nothing about the Paris attacks, the San Bernardino attacks, or the Oregon takeover that suggest a categorical change in the risks that the modern world presents us.  This is not nonchalance, but simply a recognition that President Obama's initial reaction was correct -- not just in his recognition that the recent events do not represent a sea change in the risks that we face, but in his being unwilling to whip up hysteria for political gain.

It is truly a shame that the WWII-era British admonition to "Keep Calm and Carry On" was turned into a marketing meme, because there is great wisdom in that advice.

Having said all of that, I cannot help but comment on the emerging debate that is captured by the question: "What if the Oregon Protesters Were Black or Muslim?"  As usual, the satirist Andy Borowitz captured the idea perfectly by issuing a fake news article reporting that "[a] majority of Oregonians favor building a twenty-foot wall along the border of their state to prevent angry white men from getting in, a poll released on Monday shows," and saying that "critics favor forcibly removing the angry white men through mass deportations and resettling them elsewhere, possibly in Texas."

The point, however, is not that the Oregon protesters should be treated in the way that Republicans would (and sometimes do) happily treat Muslims and blacks, but that everyone should be treated in the way that the Oregon protesters are being treated.  The federal government's reasons for being more careful with the white men in Oregon cannot be known, but we do know that it will be better if the situation can be resolved without violence.

We know that there are crazy people out there, and that they are arming themselves.  Overreacting, both in terms of immediate law enforcement responses and political posturing, can only make matters worse.