Sen. Wendy Rogers Wants Illegal Private Militias Patrolling The Border With ‘Shoot To Kill’ Orders

Brahm Resnik posts to Twitter:

‘I need to follow up on the concept of a state militia’: Wendy Rogers has plans for the border. https://t.co/2R3PEf2mxa

— Brahm Resnik (@brahmresnik) November 2, 2022

Georgetown Law School explains, Fact Sheets on Unlawful Militias for All 50 States Now Available from Georgetown Law’s Institute for Constitutional Advocacy and Protection:

In anticipation of possible unlawful militias intimidating voters at the polls, Georgetown Law’s Institute for Constitutional Advocacy and Protection (ICAP) has released fact sheets on unlawful militias for all 50 states.  The fact sheets provide key information about lawful and unlawful militias, state laws prohibiting private militias and paramilitary activity, and what to do if citizens see groups of armed individuals near polling places:

Fact Sheet: Unlawful Militias in Arizona

What is a militia?

Federal and state laws generally use the term “militia” to refer to all able-bodied residents between certain ages who may be called forth by the government to defend the United States or an individual state. See 10 U.S.C. § 246. When not called forth, they are sometimes referred to as the “unorganized militia.” A group of people who consider themselves part of the able-bodied residents referred to as members of the militia under state or federal law is not legally permitted to activate itself for duty. A private militia that attempts to activate itself for duty, outside of the authority of the state or federal government, is illegal.

Example: These cosplay border vigilantes, from 2014.

How do I know if a group of armed people is an unauthorized private militia?

Groups of armed individuals that engage in paramilitary activity or law enforcement functions without being called forth by a governor or the federal government and without reporting to any government authority are acting as unauthorized private militias. They sometimes train together and respond to events using firearms and other paramilitary techniques, such as staking out tactical positions and operating in military-style formations. They often purport to have authority to engage in military and law enforcement functions such as protecting property and engaging in crowd control.

These groups often engage in behaviors that show their intent to act as a private militia, such as wearing military- style uniforms, tactical gear, or identifying insignia; wielding firearms or other weapons; and operating within a coordinated command structure. Other factors—such as statements by leaders or members’ efforts to direct the actions of others—also may suggest that a group is acting as a private militia. Groups of armed individuals may engage in unauthorized militia activity even if they do not consider themselves to be “members” of a paramilitary organization.

Does the Second Amendment protect private militias?

No. In fact, the Supreme Court decided in 1886—and repeated in 2008—that the Second Amendment “does not prevent the prohibition of private paramilitary organizations.” District of Columbia v. Heller, 554 U.S. 570, 621 (2008) (citing Presser v. Illinois, 116 U.S. 252 (1886)).

Is it legal to act as a private militia in Arizona?

No. All 50 states prohibit private, unauthorized militias and military units from engaging in activities reserved for the state militia, including law enforcement activities. Arizona’s laws are described below:

Arizona Constitution: The Arizona Constitution forbids private military units from operating outside state authority, providing that “[t]he military shall be in strict subordination to the civil power.” Ariz. Const. art. II, § 20.

Arizona Statutes

Prohibition on private military units: Arizona law makes it illegal for groups of people to organize as private militias. It is a felony for any “person, partnership or corporation,” other than state and local law enforcement, “sheriff’s posses,” and armed security guards protecting businesses, to “maintain troops under arms.” Ariz. Rev. Stat. Ann. § 26-123.

Prohibition on unauthorized wearing of uniform: In Arizona, it is a misdemeanor for any person “to wear any part of the uniform of the national guard” or the U.S. armed forces, “or a uniform so similar as to be easily mistaken therefor, unless the person is a member of the service whose uniform he wears” or a veterans association. Ariz. Rev. Stat. Ann. § 26-170.

“Local officials, law enforcement, and voters need to know that groups of armed individuals have no legal authority under federal or state law to show up at voting locations claiming to protect or patrol the polls,” said Mary McCord, Legal Director of ICAP and a former Acting Assistant Attorney General for National Security at the Department of Justice.  “Given the increasing self-deployment of private unlawful militias during protests against racial injustice across the country, intimidating peaceful protesters and heightening the risk of violence—sometimes with tragic results—communities must prepare for similar unlawful private militia activity and intimidation in connection with the election.”

As the fact sheets explain, the U.S. Constitution and state laws use the term “militia” to refer to all able-bodied residents between certain ages who may be called forth by the government when there is a specific need; but private individuals have no legal authority to activate themselves for militia duty outside the authority of the federal or state government.  The fact sheets also explain that the Second Amendment does not protect private militia activity, pointing to decisions from the U.S. Supreme Court in 1886 and 2008 making clear that the Second Amendment “does not prevent the prohibition of private paramilitary organizations.”

All 50 states prohibit private, unauthorized groups from engaging in activities reserved for the state militia, including law enforcement activities.  The fact sheets include these state-specific laws.  They also include guidance for what individuals can do if they see what appear to be militia members near a polling place, and direct that they report their observations to the Election Protection helpline at 866-OUR-VOTE (866-687-8683), with which ICAP is coordinating its efforts.

The fact sheets were produced with the pro bono assistance of the law firms Akin Gump Strauss Hauer & Feld, Jones Day, and O’Melveny and Myers.  These firms are part of a coalition of lawyers and law firms that have offered to work pro bono with communities facing threats of political violence at protests, rallies, and other public events.  ICAP recently published a guidebook, Protests and Public Safety: A Guide for Cities and Citizens, as a resource for local jurisdictions, concerned residents, and activists across the country to protect public safety while fostering constitutional rights.

Moreover, no military or police force can be given a “shoot to kill” order for unarmed non-combatant civilians, mostly women and children lawfully seeking asylum in the United States fleeing from the very type of state-sanctioned violence and murder that Sen. Wendy Rogers proposes, who do not pose an imminent threat to them, let alone authorizing cosplay border vigilantes to do so. It is an illegal order. The purpose of her language is to dehumanize migrants as part of the GQP’s “border invasion” and “great replacement” fear mongering, straight out of  the The Authoritarian Playbook. This kind of language leads to human atrocities and genocide.

Arizona GOP candidate for governor @KariLake embraces Christian nationalist State Sen. Wendy Rogers, who was censured for threatening colleagues. Lake's also embraced "the GOAT" @DrGosar, a friend to white supremacists. #AZGOV https://t.co/lcuio55aZg

— Brahm Resnik (@brahmresnik) November 6, 2022

Wendy Rogers disgraces the uniform she once wore  – and still does in retirement – with her White Christian Nationalism, QAnon conspiracy theories and MAGA personality cult of Donald Trump devotion to a cult leader. She is a member of one of these illegal militias, the Oath Keepers, which is on trial right now for seditious conspiracy and armed insurrection against the U.S. government on January 6, 2021.

If I were in charge of the Department of Defense, I would recall her to active duty service for the purpose of a court martial trial for conduct unbecoming an officer. Yes, the Department of Defense can do this. See, The Prosecution of Military Retirees Under the Uniform Code of Military Justice (excerpts):

Since the Uniform Code of Military Justice’s inception in 1950, the code has allowed the military to court-martial certain military retirees. While court-martial proceedings against retirees are rare, “the threat of a court-martial is very real.”

Article I of the U.S. Constitution grants Congress the power to “make rules for the government and regulation” of military forces. Congress has promulgated these rules through the Uniform Code of Military Justice (UCMJ).

In addition to outlining the rules and procedures of courts-martial, the UCMJ defines the military justice system’s jurisdiction. Unlike most civilian jurisdictions, UCMJ jurisdiction is notterritorially bound. Instead, jurisdiction is predicated upon an individual’s relationship to the military. As one might expect, the code applies at all times to active-duty military members, students at the service academies, prisoners of war, and those serving sentences imposed by a court-martial. It also applies to both reservists and national guardsmen during inactive duty training, so long as the national guardsmen are in federal service. And the UCMJ can apply to certain civilians that interact closely with the military.

But jurisdiction over military retirees stands out as peculiar. Article 2(a)(4) allows for the court-martial of regular component (Army, Navy, Marine, Air Force, Space Force, and Coast Guard) retirees who are entitled to pay, and Article 2(a)(6) allows for the court-martial of retirees who are part of the Fleet Reserve or Fleet Marine Corps Reserve. Moreover, despite their retiree status, these two groups are treated like active-duty members in that they are continuously subject to UCMJ jurisdiction.

The application of UCMJ jurisdiction to retirees is significant because courts-martial are not Article III courts and are therefore not subject to some of the basic protections contained within the Bill of Rights. For instance, court-martialed defendants do not have the right to a jury trial; instead, an eight-person “member panel” selected by a high-ranking officer serves as the trier of fact. Consequently, whether Article 2(a)(4) and (6) are constitutional carries significant implications for individuals court-martialed under these provisions.

Despite many challenges to these provisions, military courts have consistently found that the Constitution allows Congress to extend UCMJ jurisdiction to retirees. For instance, in the 2018 case United States v. Dinger, the Navy-Marine Corps Court of Criminal Appeals (CCA) concluded that it was “firmly convinced that those in a retired status remain ‘members’ of the land and Naval forces who may face court-martial.” Though the U.S. Court of Appeals for the Armed Forces(CAAF), the highest military appellate court, did not squarely address the jurisdictional question, it ultimately affirmed the CCA’s decision, and the Supreme Court denied Dinger’s petition for certiorari.

Article 133 for conduct unbecoming an officer and a gentleman applies broadly to conduct of an officer. Explainer, ARTICLE 133 – CONDUCT UNBECOMING:

Article 133 – Conduct Unbecoming an Officer and a Gentleman – is an offense with deep roots in military history and the original Articles of War.The elements of the offense are:

That the accused did or omitted to do certain acts; and,

Under the circumstances, the acts or omitted acts constituted conduct unbecoming an officer and gentleman.

The word gentleman is gender neutral in the eyes of the law.

Article 133 was always intended to be a “catch-all” to create liability for actions that dishonor or disgrace officers. Because they are often vague – one of the first places to look in defending an Article 133 charge is whether the service member was on proper notice for due process purposes.

The focus of Article 133, UCMJ, a purely military offense, is the effect of the accused’s conduct on his [or her] status as an officer.” Amazaki, 67 M.J. at 670 (citing the United States v. Conliffe, 67 M.J. 127, 132 (C.A.A.F. 2009)), review denied, (C.A.A.F. 2009).

“The gravamen of Article 133, UCMJ, is ‘[a]n officer’s conduct that disgraces him personally or brings dishonor to the military profession or affects his fitness to command the obedience of his subordinates so as to successfully complete the military mission.’” Id. (quoting United States v. Forney, 67 M.J. 271, 275 (C.A.A.F. 2009)) (alteration in original).

Before an officer can be convicted of an offense under Article 133, due process requires “fair notice” that the conduct “is forbidden and subject to criminal sanction.” United States v. Vaughan, 58 M.J. 29, 31 (C.A.A.F. 2003) (citing the United States v. Bivins, 49 M.J. 328, 330 (C.A.A.F. 1998)). For notice, the question is whether a “reasonable military officer would have no doubt that the activities charged constituted conduct unbecoming an officer.” United States v. Frazier, 34 M.J. 194, 198 (C.M.A. 1994) (footnote omitted) (citing Parker, 417 U.S. at 757). See also Amazaki, 67 M.J. at 670 (citing Frazier for same proposition). Notice that conduct is unbecoming may be shown by custom, regulation, or otherwise. United States v. Guaglione, 27 M.J. 268, 272 (C.M.A. 1988) (citation omitted).

The law recognizes that there are certain moral attributes necessary to lead troops.

Being a proud member of an illegal private militia (domestic terrorist organization), the Oath Keepers, and calling for said illegal private militias to be authorized to patrol the border with an illegal order to “shoot to kill” unarmed non-combatant civilians, mostly women and children lawfully seeking asylum in the United States fleeing from the very type of state-sanctioned violence and murder that Sen. Wendy Rogers proposes, certainly falls under the rubric of Article 133 for conduct unbecoming an officer and a gentleman.

In the meantime, the voters of Legislative District 7 need to demonstrate to the rest of this state that they have higher moral values than Sen. Wendy Rogers, that you find her extremism unacceptable and vote her out of office. Vote for Kyle Nitschke (Dem) for state senate and rid us of this awful embarrassment to the state of Arizona. Otherwise you are complicit in her amoral conduct and you are to blame.