A Georgetown Law report suggests armed, unregulated groups who patrolled the streets of Lewiston and other Idaho towns during Black Lives Matter protests last month operated contrary to Idaho’s constitution and several sections of Idaho code.
But some local officials aren’t buying it, claiming the report, issued in 2018, omits important considerations, including a 2008 Idaho preemption statute, open carry laws, the ability for a prosecutor to bring a case and the right to bear arms.
Georgetown University Law Center’s Institute for Constitutional Advocacy and Protection issued the report, “Prohibiting Private Armies at Public Rallies,” highlighting laws and constitutional sections in every state that seem to prohibit private military and paramilitary conduct.
The report highlights Article I, Section 12 of the Idaho Constitution, which states “the military shall be subordinate to the civil power.” It does not mention that Idaho’s constitution mirrors the U.S. Constitution’s Second Amendment right to bear arms.
“You have to start with the constitutional right to bear arms, which in Idaho’s constitution is clearly established as a personal right, and we have statutes that protect an individual’s right to open carry,” Nez Perce County Prosecutor Justin Coleman said. “I think it’s important in this state to look through that lens first with regards to defense challenges and especially considering trying to establish any criminal charges beyond a reasonable doubt to a jury.”
The report highlights an Idaho law that says people who are not in the National Guard or an unorganized militia called into service must not associate “themselves together as a military company or organization, or parade in public with firearms in any city or town of this state.”
It cites Idaho’s Terrorist Control Act, including a section that prohibits “one or more persons to injure, oppress, threaten or intimidate any citizen in the free exercise or enjoyment of any right or privilege secured to him by the constitutions or laws of the United States or the state of Idaho, by use of violence against the person or property of such citizens.”
The law prohibits people from being on a highway or the premises of another citizen with intent to use violence against a citizen or property or “to prevent or hinder his free exercise or enjoyment of any right or privilege.”
It also prohibits “training or instruction of techniques to cause property damage, bodily injury or death.”
“It is easy for someone to philosophize about legal statutes and frameworks; however prosecuting a case on the ground is a much different thing,” Coleman said.
He said the groups that assembled in response to Black Lives Matters rallies did not amount to a militia or military, and “these statutes simply don’t apply to what happened here. I think the bottom line is that we had two divergent groups that protested peaceably in the same town at the same time. There was no violence, there were no crimes committed and not even one citation was issued during the events by law enforcement that I’m aware of.”
Lewiston City Council Member Bob Blakey had a different take.
“Armed militias are not welcomed on our city streets unless authorized by the governor, and what we had on that Saturday was an organized, armed militia, organized by Heather Rogers,” Blakey said. “What I saw was intimidation.”
Blakey is the subject of a recall effort, spearheaded by Rogers, who took to Facebook to organize a Second Amendment rights protest in downtown Lewiston the day Black Lives Matters protesters rallied nearby in Kiwanis Park.
Blakey suggested the city council pass a resolution asking the Idaho Legislature to give cities more authority to regulate firearms at protests, following feedback from downtown business owners who said they were intimidated by and lost business because of the armed protesters. Rogers said his proposal amounts to an attack on Second Amendment rights.
Coleman said it would be difficult to bring a case against the groups.
“We would not be able to prove there was any hierarchy structure or drilling, amongst other things, which would help to prove that element beyond a reasonable doubt,” he said. “A group promoting an activity on Facebook would not be enough to establish this element. Additionally, their activities would not likely be defined as parading in public.”
Blakey believes the city council needs to tighten city code to reflect Idaho’s constitution.
“I believe the majority of people in Lewiston would like to see us enforce the state constitution,” he said. “I think the majority of people were uncomfortable with the show of force on our city streets.
“That’s the job of our police force, not the job of individuals,” he said. “In no way do I want to endorse any kind of outside group operating outside of the city government, outside of the purview of the police force, because they’re not accountable.”
Coleman said intent would likely be impossible to prove beyond a reasonable doubt under the report’s criminal code sections that were cited.
“We would have to prove that someone had the intent to threaten or intimidate or had specific intent to use violence,” he said. “While also proving a conspiracy to do so amongst more than one person. And there were no other law violations that would be linked to the group in any way showing that there was that intent by any particular individual and another person.”
Rep. Mike Kinglsey criticized the Georgetown report for not giving a full account of Idaho’s laws and rights regarding the Second Amendment and laws that allow people to carry firearms in the state.
“I absolutely support the Second Amendment and the rights of my fellow citizens to peacefully protest, armed or unarmed,” Kingsley said. “It also did not provide Idaho’s preemption statute and other relevant areas of state law which protect Idahoans’ Second Amendment rights and ensure cities cannot enact their own forms of radical gun control.”
The preemption law states “It is the legislature’s intent to wholly occupy the field of firearms regulation within this state.”
The preemption law prohibits counties, cities, agencies, boards and all other political subdivisions in Idaho from adopting or enforcing any law, regulation, rule or ordinance that regulates “the sale, acquisition, transfer, ownership, possession, transportation, carrying or storage of firearms or any element relating to firearms … including ammunitions.”
Wells may be contacted at email@example.com or (208) 848-2275.