Civil vs. Criminal and its application to extremism
We have two systems of justice in this country, the civil and the criminal, two systems that—importantly—operate under somewhat different rules of which most of us (including me until recently) are only dimly aware.
The distinctions between civil and criminal law were recently brought to mind by an easy-to-miss article in the Spokesman noting that Ammon Bundy, recent candidate for governor of Idaho, was “in hiding” following a civil court judgment. (See extensive P.S. below)
Richard Girnt Butler, leader of the Aryan Nations and the Church of Jesus Christ–Christian whose center of national activity was a compound north of Hayden Lake, Idaho, finally had his wings clipped and his compound bulldozed as a result of a civil lawsuit that concluded in 2000.
Both Ammon Bundy and Richard Butler had (or perhaps we should say have) a considerable regional following. (Bundy, running for Idaho governor as a third party candidate in the 2022 general election, pulled 101,835 votes, 17.2% of the total.) In both cases several underlings had been successfully criminally prosecuted, but, as leaders, Bundy and Butler managed to escape criminal liability. (Admittedly, we don’t yet know if Bundy’s national prominence as an armed anti-federal government agitator is over—but we can hope.)
Bringing and winning a criminal legal case requires that a federal, state, or local government prosecutor recognizes that a crime has been committed and believes there is enough evidence to convict the perpetrator. (Locally, think of the Spokane County Prosecutor’s office managed under elected Spokane County Prosecutor Larry Haskell, a man whose wife Leslie is infamous for her white supremacist views. Contemplate what that could mean in willingness to pursue criminal prosecution.)
In a civil case no discretion by a government-employed prosecutor is involved. Instead, civil cases are brought by individuals or groups arguing injury and asking for just compensation. In the case of Ammon Bundy the civil suit was filed by a medical facility in Idaho, St. Luke’s, for financial damages as a result Bundy’s actions at St. Luke’s Meridian Medical Center.
In the Richard Butler case Victoria and Jason Keenan, a Native American mother and son, who were harassed at gunpoint by Aryan Nations’ members, brought a civil suit against Butler to court with the support of the Southern Poverty Law Center.
There is a key difference in the judgment criteria between criminal and civil cases: To win a civil lawsuit requires proving the plaintiff’s case by “a preponderance of the evidence”. In a criminal case the evidential requirement is “guilt beyond a reasonable doubt”. Beyond a reasonable doubt is a much higher bar, particularly if the case goes before a jury, where one determined doubtful juror can prevent a conviction. (Note, though, that only a tiny fraction of all civil and criminal cases ever get to a jury trial (e.g. less than 2% of (federal) criminal cases do)—our popular impressions based on Perry Mason and other dramatic courtroom TV shows notwithstanding.)
Another important difference between criminal and civil suits: In a criminal trial a defendant may refuse to answer a question on the grounds that the answer may be self-incriminating, i.e. “plead the Fifth”, and the fact of refusing cannot be used to infer guilt. In contrast, in a civil trial a defendant may “plead the Fifth” but doing so does not forbid adverse inferences against the pleader based on the fact of refusal. I cannot say whether that issue came up in either of the civil cases discussed in this post, but it is nonetheless a potentially important distinction between the rules of evidence in criminal and civil cases.
Defendants proven guilty in a criminal case may be subject to a variety of punishments and deterrents, including prison time, fines, and probation. The focus is to discourage continued criminal behavior. In contrast, in a civil case the court may award monetary compensation (damages) or issue an injunction to stop a certain behavior. The focus civil justice is to make the injured party whole or to prevent further harm.
In the two civil cases we’re discussing here, Bundy’s and Butler’s, the civil judgment was monetary. St. Luke’s won a judgment of $52.5 million in damages against Bundy and associates. When Bundy refused to begin to make payments, St. Luke’s was able to legally take over ownership of his Emmett house and property valued at $1 million. Bundy and his family decamped with their furniture to parts unknown. Whether he will turn up to make trouble elsewhere (as has been his pattern) remains to be seen, but this judgment will likely continue to plague his efforts.
The civil case against Butler and associates were judged liable for $6.3 million, bankrupting Butler and his Aryan Nations and resulting in the bulldozing of the Hayden Lake compound. Butler, at 86, died four years later of congestive heart failure in the Hayden Lake home provided to him by Sandpoint, Idaho, millionaire Vincent Bertollini. Absent Butler’s leadership and the focal point of the Aryan Nation’s compound, the national prominence of the white supremacist movement in the inland Northwest receded somewhat. Even so, it would be dangerously foolish to imagine that Butler’s ideology and those attracted to the region by Butler’s message don’t remain here as fertile soil for the next demagogue.
Keep to the high ground,
Jerry
More Detail:
P.S. Buried in the Northwest Section below the TV schedule in the December 2 (digital only) Spokesman was an article that caught my eye: “Bundy ‘in hiding’ after losing home, websites in legal battle with St. Luke’s”. Ammon Bundy, darling of the militant far right, leader of the 2016 occupation of the Malheur National Wildlife Refuge in Oregon, and participant in his father Cliven Bundy’s 2014 Bundy standoff in Nevada, lost a civil lawsuit and now pulled up stakes and, at least for now, had disappeared.
The last two paragraphs of the article read:
Bundy and Rodriguez began making defamatory statements about St. Luke’s, its CEO and some medical professionals after leading protests at hospitals in Meridian and Boise in March 2022 over a child welfare case involving Rodriguez’s 10-month-old grandchild.
The defendants were found to have posted multiple lies about why the baby was taken into custody. They posted videos and blogs saying the hospital was working with the Idaho government to take children away from Christian families to be sexually abused and given to gay couples, according to court documents.
This episode of bizarre, conspiracy-fueled activism was just the most recent act with which Ammon Bundy and his extended family have gained national attention. They first appeared in the news with the standoff at the 160 acre Bundy farm near Bunkerville in southeastern Nevada in 2014. Under the leadership of Ammon’s father, Cliven Bundy, the family and supporters called up by the family, some of whom were armed, held a standoff with officials over a court-ordered seizure of Bundy cattle. The court order resulted from decades of the family grazing cattle on BLM land while refusing to pay grazing fees. “According to Bundy, the federal government lacks the constitutional authority to own vast tracts of lands, an argument repeatedly rejected by federal courts.” The 2014 standoff was defused when Bundy’s cattle were released. No shots were fired—and the whole mess gradually dropped out of the national news. That is a shame, since this whole anti-federal government movement continues to percolate. Cliven Bundy, Ammon’s father, despite multiple criminal indictments and trials, remains free to preach and gather followers for his bogus conviction of the illegitimacy of the federal government. (See the sub-heading “Prosecutions of some standoff participants” at this Wikipedia page.)
To better understand the religious extremist, conspiracy theory-riddled worldview of the Bundy family and their extensive network of would be revolutionaries—including links to local Inland Northwest figures like former Washington State Rep. Matt Shea, current Idaho State Rep. Heather Scott, and others, I recommend the investigative reporting of Leah Sottile as presented in her podcast series Bundyville and Bundyville the Remnant. (There are two seasons. Be sure to start with Episode 1 “The Battle”. “The Explosion”, listed in some places also as “Episode 1”, is the beginning of the second season.)
Ammon Bundy, Cliven’s son and the original spur for this post, is better known for leading the February-March 2016 occupation of the Malheur National Wildlife Refuge (in which Matt Shea and Heather Scott played cameo roles). The occupation, which lasted 40 days and made national news, resulted in one fatality, that of LaVoy Finicum, a man who, unsurprisingly, has become a martyr figure for the anti-federal government crowd led by Bundy and fellow travelers. Ammon and his band of armed followers seized the Malheur Refuge as an opportunity to continue to press their claim that ownership of land by the federal government was illegitimate. Some participants hoped to ignite a widespread armed revolt. Twenty-eight of the occupiers were ultimately both arrested and criminally charged, including Ammon Bundy. Rather unbelievably, “On October 27, 2016, Ammon Bundy and six other defendants were found not guilty of conspiracy to impede federal officers and possession of firearms in a federal facility by a jury.” The trial played out “like a three ring circus” according to the Washington Post. Ammon went free, newly invigorated in his anti-federal government agitation, and eventually moved to Emmet, Idaho, about 30 miles from Boise.
In the early days of the Covid 19 pandemic in March, 2020, Bundy created the far-right “People’s Rights network”. During the pandemic, Bundy was arrested more than five times for protests and disruptions against COVID-19 mitigation efforts by the Idaho government. The arrests and subsequent trespassing convictions didn’t begin to slow him down.
A year later, Ammon was still agitating through his People’s Rights Network, stirring up multiple conspiracy-theory-motivated protests. On March 11, 2022, Idaho State Health and Welfare with full legal authority took into custody the 10 month old baby of an associate of Bundy’s. Health authorities determined the child’s recent weight loss could threaten his life. The People’s Rights Network under Ammon’s leadership focused on the custody issue. At the time Bundy was running as an independent to become governor of the State of Idaho (in the 2022 general election he garnered 17.2% of the vote!). He was allied with Janice McGeachin, a far right pistol-kissing Republican who lost a primary challenge to Governor Brad Little the same year. From the Idaho Statesman as published in the Spokesman in March 2022:
In the past few days, protesters have posted names, photographs and addresses of people allegedly involved in the custody case online. They have gathered at private homes, Health and Welfare’s building, the Ada County Courthouse and St. Luke’s Boise Medical Center, where the baby was treated for a time.
Bundy posted a video on Friday calling on protesters to go to the home of a judge on Saturday. Later in the day, after the child was returned to his parents, Bundy posted another YouTube video to call off the Saturday protest. The child was returned to his parents around noon, according to a news release by Meridian police.
It was finally this over-the-top action by Bundy, Rodriquez, and their People’s Rights Network that sparked the civil lawsuit discussed in the body of this post. Sadly, Ammon Bundy and his followers almost certainly believe that their agitation and defamation was not only necessary to get the baby released by the evil, conspiring “State”, but also that the release wouldn’t have happened otherwise.