A militia group, declaring itself in support of local ranchers, has occupied a building at the Malheur Federal Wildlife Refuge in southeastern Oregon. The ranchers, it seems, object to the fact that the United States government owns a substantial amount of the land in this sparsely populated area and is attempting to preserve this land in its natural condition for the benefit of the nation as a whole. As staunch defenders of private property, the ranchers claim the right to use these federal lands for their own purposes, mainly hunting and cattle raising. About a decade ago, two of their number were convicted of setting fires on other federal land, allegedly to conceal evidence that they had been hunting there illegally. They served time in prison, but only for brief periods that were below the federal minimum for the crime of arson against the federal government. They have now been ordered back to prison, and that seems to have been the event that triggered the occupation.
So far, the Feds have not taken any action against the occupiers. This is not unprecedented. The leaders of the occupation are relatives of Cliven Bundy, who became a hero of the extreme right wing two year ago when he threatened to shoot federal officials who were attempting to seize some of his cattle that they believed were being illegally grazed on federal land. And the government’s response? It was to back off and allow Bundy to continue his allegedly illegal grazing. So it’s not surprising that other members of the Bundy clan think they can seize a federal facility with impunity.
In light of recent events in other parts of the country, it is interesting to speculate about the way that law enforcement officers would respond if the occupiers were black instead of white. One possibility is that they would quickly slaughter the offenders in a hail of bullets. Tamir Rice, a twelve year old boy sitting alone in a public park with a toy gun, was gunned down by police when they pulled up to him in their car and opened fire before the car had even come to a halt. Walter Scott, an unarmed man who had been stopped for a traffic violation, was shot in the back as he was running away from the officer who stopped him. Quintonio LeGrier was killed when police officers responded to his father’s call for help in quieting the agitated 19 year old, and neighbor Bettie Jones, a 55 year old mother of five, was shot to death as well.
Another possibility is that the police would drop a bomb on the occupied facility. That’s what the Philadelphia police did to Move, a black power group whose members were accused of parole violations, illegal possession of firearms, making excessive noise and failing to dispose of their garbage. Armed police attacked their headquarters, and when the Move members responded with gunfire, a police helicopter drop two FBI-supplied bombs on the building, killing 6 adults and five children. The building, moreover, happened to be a row house in a black residential neighborhood. The bombs ignited a fire that burned down 65 houses and left 250 people homeless while the police watched without making any attempt to control the damage.
So why, exactly, have federal officials failed to respond to the occupation of a federal facility. Why not follow what seems to be standard police practice, which is to approach with guns blazing? Why not drop a bomb on the facility? The obvious answer is that this would be excessive, irresponsible behavior, a consideration that doesn’t seem to deter law enforcement agents when black people are involved. But surely, there are other, more reasonable ways to stop this continued violation of the law. Why not drop tear gas bombs on the facility, which, after all, is an isolated structure in a wilderness area, not a row house on a residential street? Better still, why not drop a butyric acid bomb? Butyric acid is the substance found in sour milk; it smells like vomit and makes the place where it is dropped virtually uninhabitable for a while. Sea Shepherd regularly uses it against illegal whaling vessels, often forcing the vessel to return to port and always without causing any injuries.
A number of people have characterized Donald Trump’s message as fascist. That may be partially correct, although it seems unlikely to tell us very much we don’t already know. But the rise of fascism provides us with a lesson that is directly relevant and highly instructive in the case of the Malheur Wildlife Refuge occupation. During the Weimer Republic that followed Germany’s defeat in Word War I, a number of right wing groups openly defied the government, committing a variety of criminal offenses. One of them was Adolf Hitler, who staged an open rebellion in 1923 (the so-called Beer Hall Putsch). In almost all cases, generally because the police and judges were anti-Weimar conservatives, enforcement of law against such legal defiance was non-existent or half-hearted and punishment, if meted out at all, was lenient. Hitler was held in prison for all of nine months after leading an open rebellion. The result was to validate the extreme right, facilitate its intimidation of the general populace, and undermine confidence in the liberal Weimer regime.
Sympathy for the Malheur occupiers because they are invoking principles like liberty, or because they own property, or because they look “American,” or because they are white, is misplaced and dangerous. They are criminals, and we allow them to get away with their criminal behavior at our peril. Law enforcement officers should not respond with excessive force or irresponsible violence, as they do so often when black people are involved. But they should definitely respond, and punish these criminals to the fullest extent of the law. Edward L. Rubin is University Professor of Law and Political Science at Vanderbilt University. He is the author of Soul, Self, and Society, a study of the new morality and its relationship to government, and of a forthcoming novel, The Heatstroke Line, that depicts the decline of the United States if climate change continues.