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Bill would crack down on illegal paramilitary groups in Oregon

KATU Portland 2/8/2023 Christina Giardinelli, KATU Staff
© Provided by KATU Portland

According to a recent Secretary of State Audit, Oregon ranks sixth in the nation for the highest rate of violent extremist incidents over the past decade. 

A bill looks to give Oregon law more teeth when it comes to preventing incidents involving paramilitary groups or organized groups that use "dangerous weapons" in acts of civil disobedience. 

"Like many others, I grappled with the question, how do we work to bring the temperature down without infringing on civil liberties?" said the bill's sponsor Rep. Dacia Grayber, D-Tigard. "After researching and working with a variety of legal and constitutional experts, we have landed on a policy that I believe is the most constitutionally sound and focused approach to preventing the most egregious cases of political intimidation and violence. 

HB 2572 would expand the definition of illegal paramilitary activity in Oregon and would allow the attorney general to petition a judge to halt the actions of a group if the AG "has reasonable cause to believe that any person or group of persons has engaged in or is about to engage in paramilitary activity." The bill would also allow a private citizen to sue a member or all members of a paramilitary group that has infringed upon his or her constitutional right by means of intimidation. 

During a hearing on the bill before the House Judiciary Committee, legal experts noted that though paramilitary activity is already illegal, the way Oregon law currently defines it makes it difficult to prosecute individuals who engage in things like armed voter intimidation or intimidation of legal protesters. 

 Kimberly McCullough, legislative director for the Attorney General's Office, said the current law was written in the 1980s and modeled after similar legislation passed in other states. 

"Passage of these laws was primarily motivated by the establishment and proliferation of paramilitary training camps across the country," McCullough said. "Examples cited in the testimony included gorilla warfare camps operated by the Ku Klux Klan and Neo-Nazi organizations."

She  said, as drafted, the law has not ever successfully been used to prosecute paramilitary groups like those. 

"It is frankly no wonder our current laws is clunky, if you spend some time with it -- which we have -- it is very complicated," she said. "In talking to prosecutors and criminal justice experts at DOJ (Department of Justice) about whether they would use this tool to combat paramilitary organizations in Oregon, I have heard descriptions using words like 'unworkable' and 'convoluted.'"

The bill maintains the current standard which categorizes the crime of "unlawful paramilitary activity" as a class C Felony. The definition of the crime includes training other individuals to use "explosive or incendiary devices or techniques for the intent of civil disobedience." 

The bill specifies that law enforcement agencies, licensed security firms, hunting groups and self-defense groups are exempt from this category. 

Members of the House Judiciary Committee questioned whether the bill would allow the attorney general or a private citizen to seek injunctive relief to block a group from open carrying at a protest. AG Assistant Carson Whitehead said either party would need to prove that the group open carrying in the scenario was infringing upon another citizens' constitutional rights. 

"To the extent that open carry of firearms is constitutionally permissible, and in many cases it is constitutionally permissible, the fact that a person is intimidated and subjectively feels fear, that wouldn't be actionable under this law," Whitehead said. "This would be ultimately, as all things at trial, be a question of proving, did this individual or this group go to the park knowing that their paramilitary activities would have this intimidating effect."

He also noted that this would not stop an armed group of individuals from protecting their personal property during a protest or contracting with private licensed security firms to do so. It could, however, stop an armed and organized group of three or more from say, "commanding protesters to leave the sidewalk." 

Though no individuals testified against the bill during the hearing, a number of people submitted written testimony against it. Most claimed it would allow favoritism for left-wing extremist groups while punishing those on the right. 

"I would hate to think we are addressing 'right wing factions' when I seen Antifa, BAMN and others put on football pads, base ball helmets and carry flash bangs and fire bombs in the streets of Oregon," wrote Mark Crosby of Marcola, Oregon. 

Some of the written testimony questioned the constitutionality of the measure. 

"HB 2572 is a violation of the First Amendment right to the freedom of association. It is also a violation of the Second Amendment and the right to a well-regulated militia," wrote Rob Taylor of Bandon. 

Grayber pointed out that many who submitted written testimony mistakenly took it as a firearms prohibition, which she noted it is not. She pointed out that the Supreme Court ruled in Presser v. Illinois that states had a right to prohibit paramilitary organizations. 

"The Supreme Court has been clear since 1886 that the Constitution does not protect private paramilitary organization," Grayber said. "Every Oregonian has the right to free speech and association, to petition the government and to vote without fear of violence or intimidation." 

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