ICAP: Private paramilitary activity was illegal

by Keith Kinnaird
News Editor | June 20, 2020 1:00 AM

SANDPOINT — Private paramilitary activity during a peaceful Black Lives Matter protest earlier this month violated the Idaho Constitution and state law, according to the Institute for Constitutional Advocacy & Protection at Georgetown University in Washington, D.C.

Armed citizens appeared at the June 2 demonstration by local students and young adults at the request of Bonner County Commission Chairman Dan McDonald. The group said it was there to protect the demonstrators’ First Amendment rights and ensure outside agitators did not try to hijack the protest and turn it from a peaceful one to a violent one. They also posted up at various locations in downtown later that night to guard against unrest.

However, the group’s presence scared some of the protesters and their parents. The heavily armed group also unnerved people who visited downtown, ICAP noted, citing various news stories about the protest and its aftermath.

ICAP contends the militia members’ conduct appears to have violated Idaho law, in addition to the Idaho Constitution.

“As you may be aware, several provisions of Idaho law prohibit private paramilitary activity,” ICAP legal Director Mary B. McCord said in a letter to McDonald and Sandpoint Mayor Shelby Rognstad.

McCord said the state constitution’s strict subordination clause forbids private military units from operating outside state authority. Idaho also has a statute prohibiting “unorganized associations” from engaging in paramilitary activity.

The law also states unorganized militia cannot associate themselves together as a military company or parade in public with firearms in any city or town in the state.

“The Supreme Court has long recognized that such laws are constitutional and do not violate the Second Amendment,” McCord wrote.

Moreover, McCord said other provisions of Idaho Code make clear that only the governor, as commander-in-chief, has the authority to call the unorganized militia into active service. Accordingly, private militias have no authority to deploy to engage in law enforcement or military functions.

ICAP successfully sued a number of militia organizations involved in the deadly Unite the Right rally in Charlottesville, Va. The legal action resulted in court orders against 23 individuals and organizations from returning to Charlottesville in groups of two or more acting in concert while armed with anything that could be used as a weapon during a rally, protest, demonstration or march, McCord said.

Since bringing that litigation, ICAP has consulted with municipalities large and small across the country seeking advice on how to protect public safety while preserving constitutional rights during protests and demonstrations. McCord offered to consult with Bonner County and Sandpoint officials and because ICAP conducts its work on a pro bono basis, any consultation would be free of charge.

Neither McDonald nor Rognstad responded to requests for comment late Friday afternoon.

Keith Kinnaird can be reached by email at kkinnaird@bonnercountydailybee.com and follow him on Twitter @KeithDailyBee.