Case 1:15-cr-00407-MC
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MATTHEW SCHINDLER, OSB# 964190
501 Fourth Street #324
Lake Oswego, OR 97034
Phone: (503) 699-7333
FAX: (503) 345-9372
e-mail: [email protected]
STAND BY COUNSEL FOR PRO SE DEFENDANT KENNETH MEDENBACH
UNITED STATES DISTRICT COURT
DISTRICT OF OREGON
EUGENE DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
Case No. 1:15-CR-00407-MC
MOTION TO DISMISS
vs.
KENNETH MEDENBACH,
Defendant(s).
Pro se defendant Kenneth Medenbach moves the Court for an order
dismissing the information against him because it violates the First Amendment to
the United States Constitution.
1. Factual Background:
The defendant has a nearly 30 year history of protesting land policy in the
state and federal courts. His trial beginning Monday involves another passionate and
good faith effort by the defendant to protest the federal government’s ownership and
control of lands in Oregon.
Mr. Medenbach has generally based his courtroom arguments on the plain
language of the Constitution and the fact that it does not expressly grant the federal
government power over public lands. Up to this point, those arguments have been
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rejected in the courts. Beyond those arguments, however, is an important defense in
this case emanating from the First Amendment.
This case is not about squatting. We know this because if the case were about
squatting, his cabin would have been hidden in the woods far from a road. He would
not have been literally advertising his presence on the side of the only road for miles.
He would not have been calling the BLM and meeting with the BLM and asking
them to arrest him. His cabin and, perhaps more importantly, his signs, were a
display that lies at the very heart of protected political speech. A BLM photograph
of Mr. Medenbach’s cabin and signs which support these charges and which was
provided by the government in discovery is attached as Exhibit 1.
Attached to both the left and right hand side of the cabin are two very large
circular signs, four feet in diameter, with acronym “BLM” circled and crossed out
in red. That anti-BLM statement is obviously political speech protected by the First
Amendment. Below the anti-BLM sign on the left, Mr. Medenbach attached another
sign to the cabin which is a map that shows the amount of public land controlled by
the federal government. The sign is captioned “FEDERAL LAND IN THE
STATES.” A copy of this map, available on the internet, is attached as Exhibit 2.
The clear purpose of this sign is to show how much land in the western states is
owned by and exclusively controlled by the federal government. It is part of Mr.
Medenbach’s protest that, for example, in Josephine County Oregon, some 70% of
the land is controlled by the BLM. The people who live and attempt to work in
Josephine County are denied beneficial use of more than two thirds of their County
land by a government 3000 miles away that they have no ability to influence.
On the right side of the cabin is another large sign, approximately 6’ x 10’
which states:
2nd Amendment
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A well regulated Militia, being necessary to the security of a FREE
STATE, the right of the people to keep and bear Arms, shall not be
infringed. The Federal Government owns 53% of Oregon.
HOW FREE IS OREGON?
See Exhibit 1.
It is also clear from these signs that the very point of this entire structure was
to make a political statement about the federal government’s policies. The signs
were large enough to be seen from the road. Mr. Medenbach was not attempting to
establish an Air B’n’B on the cheap. This was not a second home. No weddings
were held there. Instead, he was trying to make a very important point about land
policy that is obviously protected by the First Amendment.
It is also significant for the purpose of this court’s First Amendment analysis
that this cabin and signage was on Peavine Road in Galice, Oregon, very close to
the Sugar Pine Mine. At that time, the mine was the site of a protest over BLM
actions that had led to various militia groups moving into the area and the mine.
There was a great deal of publicity surrounding it, particularly in Southern Oregon,
and among the militia groups nationally. Mr. Medenbach supported the miltia
presence there and that is what the sign was intended to convey. He built close to
the mine to show his support and to give him the opportunity to talk to people about
these issues. This too is a constitutionally protected political statement.
2. Legal Standards:
“[W]hen expressive conduct occurs on public grounds, like a national forest,
the government can impose reasonable time, place, and manner restrictions.” United
States v. Griefen, 200 F.3d 1256, 1260 (9th Cir. 2000). Such restrictions are
constitutionally valid if they are (1) content-neutral, (2) narrowly tailored to serve a
significant governmental interest, and (3) leave open “ample alternatives for
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communication.” Forsyth County v. Nationalist Movement, 505 U.S. 123, 129-30,
112 S.Ct. 2395, 120 L.Ed.2d 101 (1992)).
As Justice Roberts said in Hague v. Committee for Industrial Organization,
307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423 (1939):
The privilege of a citizen of the United States to use the streets
and parks for communication of views on national questions may be
regulated in the interest of all; it is not absolute, but relative, and must
be exercised in subordination to the general comfort and convenience,
and in consonance with peace and good order; but it must not, in the
guise of regulation, be abridged or denied.
Id. at 515-16, 59 S.Ct. 954.
“The crucial question is whether the manner of expression is basically
incompatible with the normal activity of a particular place at a particular time.”
Grayned v. City of Rockford, 408 U.S. 104, 116, 92 S.Ct. 2294, 33 L.Ed.2d 222
(1972).
a. These statutes are content neutral.
Mr. Medenbach concedes that the criminal statute, 43 USC § 1733(a), is
content neutral and does not expressly suppress protected speech.
b. Applying federal criminal prohibitions against camping and
unlawful occupancy to this case is not narrowly tailored to the limited
government interest at issue in the site of Mr. Medenbach’s cabin as
compared to his First Amendment rights.
There is also little reason to argue that limitations on illegally occupying or
camping on public land are unjustified or inherently unreasonable. Clearly there is
a government interest in preserving multiple values on public lands that would be
lost if people could exclude others and squat there without consequence. There is
also a significant interest in preserving the public’s right of access and the
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government’s right to do business. But in a case that does not involve squatting and
instead involves an attempt to protest federal land use policy with a cabin that is
really part of a display of politically protected speech and not primarily an abode,
the question of applying these criminal statutes consistent with the First Amendment
becomes more difficult.
The answer to balancing these interests does not lie in Griefen, because the
conduct of defendants there was very different. They blocked a road being lawfully
built. They intentionally prevented access by building a structure in the middle of
the road and digging trenches. Their express purpose was to disrupt a private
logging sale. According to the Ninth Circuit, “the protestors had already shown by
their destructive conduct that they presented a clear and present danger to the safe
completion of the construction project, both to other persons as well as to
themselves.” United States v. Griefen, 200 F.3d 1256, 1260 (9th Cir. 2000). That is
not this case. There was nothing “destructive” about what Mr. Medenbach did.
What Exhibit 1 demonstrates is one man’s attempt to express legitimate
disagreement with the current state of federal land policy without interfering with
anyone else’s use of that land. His presence there, the cabin, and the signs, the
physical manifestation of his alleged “crimes,” are all the lawful expressive symbols
of his discontent erected on public land for the purpose of protesting public land
policy. Unlike the defendants in Griefen, there is no evidence that Mr. Medenbach
ever blocked the road or other access to the land. He did not erect a fence. He did
not vandalize or harm the property. See United States v. Albertini, 472 U.S. 675,
684 (1985).
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He did not hide the cabin in the woods but built it in the most public place he
could, right next to the road. This was so he could communicate his ideas to the
public effectively. The signs were all large enough and clear enough to be seen and
read from the road. There are no threats in any of his signs. The signs do not incite
illegal activity.
Instead Mr. Medenbach welcomed all visitors, including the BLM, who he
repeatedly tried to get to arrest him. He talked to numerous people including the
BLM about why he had built the cabin and its connections to protesting federal land
policy. Part of the government’s evidence against him is a video taken by someone
who was travelling to the Sugar Pine Mine in which Mr. Medenbach talks about the
cabin and signs as statements of protest against federal land policy.
Most important to this court’s analysis, however, has to be the fact that what
Mr. Medenbach did was make a political statement protected by the First
Amendment without ever using this public space incompatibly with its normal uses.
Grayned v. City of Rockford, 408 U.S. 104, 116 (1972); United States v. Griefen,
200 F.3d 1256, 1260 (9th Cir. 2000). No one else’s use of the land was obstructed
or impeded. No one, including the BLM, could complain that they were denied use
of that section or parcel of land because of Mr. Medenbach. Someone should not be
imprisoned for this conduct and the government should be prevented from
criminally prosecuting Mr. Medenbach for his political speech.
c. There was no meaningful alternative to this protest that would not
have subjected him to criminal prosecution.
The application of these criminal prohibitions to Mr. Medenbach is
inconsistent with the First Amendment because he was protesting in the only place
he meaningfully could: on public land controlled by the BLM. The entire point of
his protest was to be on public land and where people could see him and his signs.
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Mr. Medenbach standing on his private property alone does not communicate
anything about these important issues of public interest. Mr. Medenbach standing
in a park in Grant’s Pass cannot make the same protest. By being on the road to the
Sugar Pine mine, which was already getting national attention for BLM overreach,
Mr. Medenbach knew he would have an opportunity to communicate with people
while they were on public land about an issue vital to our public lands.
While one may not think of the side of Peavine Road in a public forest in
Galice, Oregon as a public forum, relative to this message of protest, it was the
center of the world. “The existence of a right of access to public property and the
standard by which limitations upon such a right must be evaluated differ depending
on the character of the property at issue.” Perry Education Association v. Perry
Local Educators' Association, 460 U.S. 37, 44 (1983). Mr. Medenbach’s protest
about the fact that local people had no control over these public lands could only
take place at a location like this: on land claimed by the BLM but not too remote.
His display was also in no way inappropriate or inconsistent use of that land.
Mr. Medenbach met with sympathetic individuals and was able to discuss
important land-use issues with them. He got to know other people interested in the
same issues and got ideas from them. It was discussed on Facebook. The point of
the cabin and signage display was to get people talking about these issues while at
the same time protesting federal land policy. It is difficult to see how that activity
would not be protected from criminal prosecution by the First Amendment in
circumstances where there was no obstruction of normal use.
3. Conclusion:
For the reasons stated above, the Second Amended Information should be
dismissed with prejudice because it violates the First Amendment. Mr.
Medenbach’s display represents constitutionally protected speech that cannot give
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rise to criminal liability under the circumstances present here. The government’s
legitimate interest in preventing squatting and overly lengthy camping stays as
expressed in 43 USC 1743(a) must in this case yield to Mr. Medenbach’s right under
the First Amendment to stage a peaceful protest through the use of a display placed
on land claimed by the BLM. The charges against him should be dismissed with
prejudice.
Respectfully submitted on April 15, 2016.
Matthew A. Schindler, OSB#964190
Stand by counsel for Kenneth Medenbach
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