Maj. Steve Stokes of the Idaho Military Division presents HB 475, on private militias, to the House Transportation and Defense Committee on Wednesday, Feb. 16, 2022.
Maj. Steve Stokes of the Idaho Military Division presents HB 475, on private militias, to the House Transportation and Defense Committee on Wednesday, Feb. 16, 2022.
The House Transportation & Defense Committee this afternoon voted 13-4 in favor of sending HB 475, legislation proposed by Idaho’s Military Division to repeal a 1927 law outlawing private militias, to the full House without recommendation. The vote followed extensive testimony against the bill, including from North Idaho residents who told of their experiences in the past two years with private armed groups taking over their local streets in Coeur d’Alene and Sandpoint.
Sandpoint Mayor Shelby Rognstad told the committee that Sandpoint experienced this a couple of years ago when a planned human rights march by local high school students sparked unfounded rumors of an antifa rally. “A large group of heavily armed people started patrolling our little town, and many people in the community felt harassed and intimidated,” he said. “This was a dangerous moment for our town. Our police force was concerned that they would be quickly overwhelmed if the situation escalated to violence.” He called the law proposed for repeal “one of the few statutes that is useful in protecting public safety from private, unregulated militias.”
Rognstad is currently running for governor as a Democrat.
Shawn Keenan of Coeur d’Alene told the committee, “Starting June 1st in 2020, we had a week-long occupation here after the George Floyd protest. During that time we had, I’m not kidding, at least 300 or 400 armed men and women, to the teeth, I mean, we had long rifles and every other weapon you can think of, marching up and down … simply to intimidate.”
“We were terrified, let’s be honest,” he said. “Many folks were not able to come downtown … to dine at their favorite establishment or even enjoy our parks, for fear of a discharge from one of those weapons for whatever reason, either accidental or through a perceived threat.”
Motorcycle gangs from Spokane arrived and joined the scene, he said, and “were actually drinking at our bars with their AR-15’s on the bar top. I went down to witness this myself and … it was surreal, and it was scary.” He urged the committee to reject the bill.
Ben Satterlee told the committee, “I can think of no time in our history when this law is more needed than today. ... Why would we want to give the green light to lawlessness, vigilantism and intimidation?”
Nicole Brown of Boise, a volunteer with Moms Demand Action, said, “We believe HB 475 would encourage armed intimidation and the open carrying of firearms in Idaho, by allowing individuals to form a militia and openly parade in public with firearms.”
Major Steve Stokes, general counsel for the Idaho Military Division, told the committee he erred at an earlier introductory hearing when he said the existing law violated the 1st and 2nd Amendments to the U.S. Constitution. Actually, he said, on further research, he found that similar laws have been upheld as constitutional in other states. Among them is Virginia, where a group used that state’s similar law to sue successfully over the deadly “Unite the Right” rally in Charlottesville in 2017.
Stokes said he identified the state code section for repeal as part of an effort to comply with Gov. Brad Little’s Red Tape Reduction Act, which ordered the elimination of outdated or unnecessary provisions in state law and rules. The law in question, he said, doesn’t apply to Idaho Military Division operations; it’s a law of general applicability applying to citizens, but it’s located in the part of the state code that governs the military division. “It is not required for the administration of the Idaho Military Division,” he said.
He also pointed to another existing provision of state law, the Terrorist Control Act, which makes it a felony to assemble to train or practice “any technique or means capable of causing property damage, bodily injury or death with the intent to employ such training, instruction or practice in the commission of a civil disorder,” and also criminalizes violent threats and intimidation. That law states, “Conspiracies and training activities in furtherance of unlawful acts of violence against persons and property is not constitutionally protected, poses a threat to public order and safety, and should be subject to criminal sanctions.”
Stokes said he could find no evidence that the 1927 law had ever been enforced, and it has no enforcement mechanism other than groups of citizens suing each other over it. The existing law prohibits a “body of men” from associating as a military company, and from grouping together and parading in public while carrying firearms.
He said he found the law vague, and “likely unnecessary.” He also said the Idaho Military Division and Idaho National Guard wouldn’t propose a different, more workable version of the law, because, “The Idaho Military Division does its absolute best to not involve itself in civilian policy decisions.”
“To propose legislation to amend 46-802 to make it more clear, more lawful or more enforceable would open the door for the Idaho Military Division to write legislation affecting the general population, and would violate the time-honored American tradition of limiting military authority to military matters,” he said.
“You will likely hear testimony today from smart and genuinely concerned Idaho citizens who oppose HB 475,” Stokes told the committee. “I don’t pretend to hold myself out as an expert in constitutional law.”
Rep. Scott Syme, R-Caldwell, moved to hold the bill in committee, killing it for the session. “I appreciate what Major Stokes is trying to do and the difficult position that this puts the Idaho National Guard in,” he said. “We have to make the decision on this. He alluded to the fact that we need some more information to make this decision. … I, for one, would like more information. Like everything we do here, it has ramifications beyond what we think the initial part of the bill is.”
“When Major Stokes first brought this up, I was like, ‘Oh, yeah, that makes sense to me,’” Syme said. “Then you get more information. … You start to think: What ramifications does this have beyond the simple deleting of a section of code?”
Rep. John Gannon, D-Boise, made a substitute motion to send the bill to the House’s amending order, for the purposes of cleaning up and modernizing the law. “I think it does need to be updated, and there may be some concerns to be addressed,” he said. “We can do that … and have a 21st Century version of this bill.”
Rep. Gayann DeMordaunt, R-Eagle, then moved to send HB 475 to the full House without recommendation; that’s the motion that passed on a roll-call vote. The four dissenters were Syme, and Reps. Gannon, Ilana Rubel and John McCrostie. To become law, HB 475 still would have to pass the full House, clear a Senate committee, pass the full Senate and receive the governor’s signature.
Betsy Z. Russell is the Boise bureau chief and state capitol reporter for the Idaho Press and Adams Publishing Group. Follow her on Twitter at @BetsyZRussell.
