The United States vs. Shawna Cox

A Footnote to the Oregon Militia Case

By Jim Knipfel

On January 26, the same day Ammon Bundy and several of the militia members who'd been occupying the Malheur Wildlife Refuge in Oregon were arrested, LaVoy Finicum, the group's spokesman, was shot and killed by FBI agents and Oregon state troopers during what was termed a traffic stop. According to the FBI, Finicum was attempting to evade arrest when his white pickup got stuck in a snow bank after he swerved around a roadblock. He leapt from the vehicle and was reaching for a gun in his pocket when law enforcement agents shot and killed him.

Shawna Cox, who along with two other women was in the truck with Finicum, tells a very different story. According to Cox and the other two witnesses, they were simply on their way to town for a meeting with the sheriff and a small get-together with supporters when the state troopers gave chase. She says bullets were flying all around the truck long before the crash, and that Finicum jumped from the truck with his hands in the air, making no move to grab for a gun before he was killed.The snippet of silent, unusually grainy drone footage of the incident released by the FBI to support their version is, to be honest, difficult to interpret. Afterward, Cox was taken into custody and is being charged as a co-conspirator. Of the sixteen people in custody, she is the only woman charged.

On the night of her arraignment, Cox's son-in-law died in a fire in her hometown of Kanab, Utah, a small Mormon community where both Cox and Finicum had lived most of their lives. She received court permission to travel back home to be with her daughter, though was restricted to limited house arrest and required to wear a GPS tracking device. She was allowed to travel short distances for work, medical appointments, and religious services. LaVoy Finicum had been her longtime neighbor and friend, but when Cox requested permission to attend his funeral in Kanab with her husband, the government said no. The official denial cited fears that Cox would associate with co-defendants, engage in criminal activity, bring a gun (or guns) to the service, give a speech inciting violence among other attendees, and most damning of all, find herself in the company of what were described as  "like-minded individuals."

In an emergency motion filed last Thursday, Cox's lawyer, Portland-based Tiffany Harris of the ACLU, pointed out that Cox was 59, a mother, grandmother, and small business owner. She had been a member of the PTA and a scout leader. She was active in the church, was said to be deeply devout, had received over 120 letters from friends and neighbors attesting to the quality of her character, had no criminal record, and had been cooperative with law-enforcement officials. She only wished to attend the religious portion of the funeral Friday afternoon with her husband in order to pray and offer condolences. Moreover, Cox had not yet been convicted of any crime, and was therefore presumed innocent.

There was no chance she would encounter co-defendants, given they were all either in custody or dead. Cox and her husband had willingly removed all firearms from their home, and there was nothing at all in her history that would indicate she would engage in any sort of criminal activity at the funeral. The crux of the matter, however, as Harris described in the motion, was this:

"The Government's claim that allowing Ms. Cox to associate with 'like minded people' might cause problems (as yet, unidentified) is, at best, a generalized worry and nothing approaching the order of a compelling governmental interest. As a preliminary matter, Ms. Cox has an absolute and unfettered right to talk to or assemble with 'like minded people.' Even if Ms. Cox is barred from the religious portion of Mr. Finicum's funeral, there is no lawful mechanism to prevent her from peacefully associating with 'like minded people,' in her home, in her church, or during other authorized activities."

The hearing was set for Friday morning, some six hours before the funeral was scheduled to begin, and the implications were much larger than it might seem at first blush. Regardless what you might think of the Oregon militia, its supporters, or Mormons, if the courts upheld the refusal to allow Cox to attend the funeral, it essentially says the United States government has the right to dictate whether or not citizens who haven't been convicted of a crime can worship in a church of their choosing and associate freely with others who may be "like-minded."

As Harris further explained in her motion, "Unlike a convict, probationer or parolee, she has suffered no judicial abridgment of her core constitutional freedoms, including her First Amendment right to enter a church, to pray, and to lawfully assemble to honor the dead. Any restriction on activities so fundamental to religious freedom and lawful assembly must be narrowly tailored to achieve a compelling governmental interest. Even if the government had articulated such an interest in this case, barring Ms. Cox from the door of her local church, under the threat of incarceration, is not narrowly tailored or sufficiently related to public safety. Instead, it is an exercise of government power that is simply too broad and exacts too high on First Amendment freedoms to pass constitutional muster."

If the court upheld the government's decision we were all screwed, as it would mean we were all legally subject to arbitrary federal decrees about who we could see and where we could go, and subject to arrest if we didn't comply. If, however, the refusal was overturned, it would prove it was still possible to stand up against the government on First Amendment grounds, even in this day and age.

Given the federal government's recent history when it came to dealing with anti-government militias, angry ranchers, and unconventional religious groups like the Branch Davidians, it was all the more shocking when on Friday morning a judge in Portland agreed with Harris and gave Cox permission to attend the funeral. She was allowed to leave her home at 2 p.m. for the 2:30 funeral, and was required to be back home by 10. She was also barred from making any public statements about the case while at the church.

By all accounts Finicum's funeral was a peaceful one, Cox made it home as per schedule, and we are all safe once again. It remains to be seen, of course, what will happen to Cox once the case comes to trial.

Published February 9th, 2016

Jim Knipfel is the author of Slackjaw, The Blow-Off, These Children Who Come at You With Knives, and several other books.