Addressing Political Violence, Unlawful Paramilitaries, Threats to Democracy, and Gun Violence

After the August 2017 “Unite the Right” rally in Charlottesville led to violence and death, we at ICAP concluded that private paramilitary activity was at the core of the weekend’s mayhem. We soon filed suit on behalf of the City of Charlottesville, downtown businesses, and neighborhood associations seeking declaratory and injunctive relief to prevent a recurrence of such dangerous privatized use of force.

We prevailed, securing court orders prohibiting a range of groups and individuals from returning to Charlottesville as, in essence, rogue armies. The success in court underscored the importance of adopting a litigation approach grounded in law enforcement sensibilities but ultimately aimed at restoring to the public square the capacity for genuine advocacy and the peaceful exchange of ideas.

More recently, ICAP partnered with then-Bernalillo County District Attorney Raúl Torrez to file a civil suit against the New Mexico Civil Guard for its actions during a protest at the statue of Spanish conquistador, Juan de Oñate, in Albuquerque. ICAP challenged the Guard as violating New Mexico state law against unlawful paramilitary and law enforcement activity. And as in Charlottesville, we prevailed, obtaining an injunction ordering the Guard and its members to stop operating as a military unit or acting as law enforcement.

ICAP has released a 50 State Catalog of laws prohibiting private armies at public rallies, fact sheets detailing those laws for each state, as well as a toolkit discussing legal principles, best practices, and creative solutions upon which local jurisdictions may draw to protect public safety while respecting constitutional rights during rallies, protests, and other public events.

ICAP has produced guidance for a variety of circumstances, including related to elections, polling places, and public protests and demonstrations, where unlawful paramilitary activity presents a threat.

Model Anti-Paramilitary Legislation

ICAP has also developed comprehensive model legislation to prohibit activity by paramilitary groups that threaten democratic processes and the constitutional rights of others, including by creating civil enforcement mechanisms for state officials and victims of vigilante actions to seek injunctive relief and damages. Read the draft model legislation here.

Work Addressing Gun Violence

11/21/23 – Filed a reply brief in the Ninth Circuit in Wolford v. Lopez, where we are partnering with the State of Hawai’i to defend a gun-safety law that the State recently enacted.
10/25/23 – Filed an amicus brief in the D.C. Circuit on behalf of the U.S. Conference of Mayors in support of a D.C. law banning large-capacity magazines.
10/5/23 – Filed an opening brief in the Ninth Circuit in Wolford v. Lopez, where we are partnering with the State of Hawai’i to defend a gun-safety law that the State recently enacted.
7/14/23 – Filed a memorandum in opposition to plaintiffs’ motion for a temporary restraining order in Wolford v. Lopez.
5/10/23 – Filed an amicus brief in the Seventh Circuit on behalf of the U.S. Conference of Mayors in support of a Naperville, Illinois ordinance and Illinois state law banning assault-style weapons and high-capacity magazines.
1/26/23 – Filed an amicus brief on behalf of the U.S. Conference of Mayors in support of a Highland Park, Illinois ordinance banning assault-style weapons and high-capacity magazines.

Work Addressing Threats to Democracy

10/11/22 – Filed a motion for leave to file an amicus brief arguing that the removal by the King County, Washington, government of privately placed signs falsely claiming that ballot drop boxes were under surveillance and misleadingly threatening that depositing ballots for others was illegal did not violate the First Amendment rights of the sign planter.
8/30/21 – Filed a lawsuit representing the Oklahoma Conference of the NAACP in a challenge to an Oklahoma anti-protest law whose vague and overbroad terms do not provide adequate notice of when it applies and threaten to criminalize constitutionally protected speech.
1/11/21 – Filed a lawsuit representing disability-rights advocates and advocacy organizations in a challenge—under the First Amendment, the Americans with Disabilities Act of 1990, and the Rehabilitation Act of 1973—against an Idaho state legislature policy that infringes upon their fundamental rights to participate in the legislative process by denying basic protections for their health and safety.

Work Addressing Political Violence and Unlawful Paramilitaries

5/22/23 – Submitted a letter to the judge presiding over Stewart Rhodes’s sentencing for seditious conspiracy based on his role in the attack on the U.S. Capitol on January 6, 2021, rebutting arguments made in Rhodes’s sentencing memo that the judge should look favorably on his leadership of the Oath Keepers as a civic organization with a history of community involvement and volunteerism.
5/19/23 – Published guidance designed to help local organizers in the LGBTQ+ community address potential threats by unlawful private paramilitary groups during Pride Month, which aims to inform local organizers about the legal options they have to counter these threats and ensure the safety of event attendees.
3/29/23 – Sent a letter to officials in Geauga County, Ohio, ahead of scheduled drag events subject to potential disruption by private paramilitary actors, offering assistance in protecting peaceful protest and free expression while avoiding violence.
2/6/23 – ICAP Executive Director Mary McCord testified before the Oregon State Legislature’s House Committee on the Judiciary in support of a bill making it easier to address armed paramilitary activity that interferes with government functions, usurps law enforcement roles, and infringes constitutional rights.
1/27/23 – Sent a letter to Idaho state legislators, in response to a proposed bill to repeal an Idaho law that prohibits unauthorized paramilitary organizations, advising that the existing law is consistent with the U.S. Constitution, the Idaho Constitution, and Idaho’s statutory regulation of the state militia and robust regulation of paramilitary and law enforcement activity
12/13/22 – ICAP Executive Director Mary McCord testified before the House Subcommittee on Civil Rights and Civil Liberties of the Committee on Oversight and Reform regarding the evolution of extremist groups and the ongoing threat to democracy following the January 6 attack. Read the written testimony here and watch the hearing here.
12/7/22 – Filed an amicus brief in the Supreme Court on behalf of former national security officials raising the national security threats posed by online radicalization facilitated by algorithmic amplification of terrorist content by social media platforms and arguing that when it enacted the Communications Decency Act in 1996, Congress could not have intended to bar suits against such platforms for harms caused by their own algorithmic targeted recommendations.
11/7/22 – Published updated set of guidance related to elections and polling places
11/6/22 – Published guidance on managing vehicular protests during election season
11/6/22 – Published guidance on law enforcement’s role in ensuring safe voter participation at the polls
11/4/22 – Published guidance on the authority of state government to regulate poll observer conduct
5/18/22 – ICAP sent a letter to Kinney County, Texas officials regarding Kinney County’s reported tolerance of and cooperation with groups of armed private paramilitary organizations in connection with “Operation Lone Star.”
3/31/22 – ICAP Executive Director Mary McCord submitted an Expert Statement for the House Select Committee to Investigate the January 6th Attack on the United States Capitol chronicling militia extremist activity leading up to, on, and after January 6; warning of continued infringement of constitutional rights by militia extremists going forward, and advocating for federal legislation to combat the threat.
2/7/22 – Sent a letter to Idaho state legislators, in response to a proposed bill to repeal an Idaho law that prohibits unauthorized paramilitary organizations, advising that the existing law is consistent with the U.S. Constitution, the Idaho Constitution, and Idaho’s statutory regulation of the state militia and robust regulation of paramilitary and law enforcement activity
1/27/22 – Sent a letter to the Franklin County, Virginia, Board of Supervisors in response to a proposal to pass a resolution recognizing the Franklin County Militia, explaining that private paramilitary organizations and paramilitary activity are unauthorized by federal or state law and not protected by the Second Amendment
9/21/21 – Filed a brief in the Supreme Court arguing that the Constitution permits certain restrictions on firearms possession designed to protect national security and public safety
6/29/21 – Published an essay with the Brennan Center explaining why private militias are unlawful in every state, not authorized under federal or state law, and not protected by the Second Amendment
5/26/21 – ICAP Executive Director Mary McCord testified before Congress about the threat of private militias and advocated for a federal anti-militia law. Read the prepared testimony here, and watch the hearing here.
3/26/21 – Sent a follow-up letter to the Texas governor as well as state, local, and federal officials in Texas urging action to address the growing threat posed by unlawful militia groups, including passing legislation to provide additional ways to combat unlawful paramilitary activity and to criminalize domestic terrorism
1/20/21 – Sent a letter to the Texas governor as well as state, local, and federal officials in Texas urging action to address the growing threat posed by unlawful militia groups, including passing legislation to provide additional ways to combat unlawful paramilitary activity and to criminalize domestic terrorism
11/20/20 – Sent a letter to local officials in response to public concern over private paramilitary activity in Atlanta, Georgia, advising of applicable state law provisions against such activity
11/6/20 – Sent a letter to local officials in response to public concern over private paramilitary activity in Vancouver, Washington, advising of applicable state law provisions against such activity
11/2/20 – Sent a letter to local officials in the counties of Dekalb, Fulton, Floyd, Laurens, Clayton, Bartow, Lowndes, Walker, and Hart, Georgia, in response to public concern over private paramilitary activity and voter intimidation, advising of applicable state law provisions against such activity
11/2/20 – Sent a letter to local officials in response to public concern over private paramilitary activity and voter intimidation in Spokane County, Washington, advising of applicable state law provisions against such activity
11/2/20 – Sent a letter to local officials in response to public concern over private paramilitary activity and voter intimidation in Lane County, Oregon, advising of applicable state law provisions against such activity
10/30/20 – Sent a letter to local officials in response to public concern over private paramilitary activity and voter intimidation in Provo, Utah, advising of applicable state law provisions against such activity
10/30/20 – Sent a letter to local officials in response to public concern over private paramilitary activity and voter intimidation in Ada County, Idaho, advising of applicable state law provisions against such activity
10/29/20 – Sent a letter to local officials in response to public concern over private paramilitary activity and voter intimidation in Reno, Nevada, advising of applicable state law provisions against such activity
10/27/20 – Sent a letter to local officials in response to public concern over private paramilitary activity and voter intimidation in Washington County, Utah, advising of applicable state law provisions against such activity
10/23/20 – Sent a letter to local officials in response to public concern over private paramilitary activity and voter intimidation in Montgomery, New York, advising of applicable state law provisions against such activity
10/23/20 – Sent a letter to local officials in response to public concern over private paramilitary activity in Lakeland, Florida, advising of applicable state law provisions against such activity
10/23/20 – Sent a letter to local officials in response to public concern over private paramilitary activity and voter intimidation in Erie, Pennsylvania, advising of applicable state law provisions against such activity
9/4/20 – Sent a letter to local officials in response to private paramilitary activity in Weatherford, Texas, advising of applicable state law provisions against such activity
9/2/20 – Sent a letter to local officials in response to private paramilitary activity in Tyler, Texas, advising of applicable state law provisions against such activity
8/26/20 – Sent letters to local officials and the Wisconsin Attorney General in response to private paramilitary activity in Kenosha, Wisconsin, advising of applicable state law provisions against such activity
8/21/20 – Sent letters to local officials in response to private paramilitary activity in Elkton and Broadway, Virginia, advising of applicable state law provisions against such activity
7/29/20 – Held a launch event for our toolkit discussing legal principles, best practices, and creative solutions upon which local jurisdictions may draw to protect public safety while respecting constitutional rights during rallies, protests, and other public events
7/28/20 – Sent a letter to local officials in response to private paramilitary activity in Louisville, Kentucky, advising of applicable state law provisions against such activity
6/25/20 – Sent a letter to local officials in response to private paramilitary activity in Coeur d’Alene, Idaho, advising of applicable state law provisions against such activity
6/19/20 – Sent a letter to local officials in response to private paramilitary activity in Bonner County, Idaho, advising of applicable state law provisions against such activity
6/18/20 – Sent a letter to local officials in response to private paramilitary activity in Campbell County, Virginia, advising of applicable state law provisions against such activity
6/17/20 – Sent letters to local officials in response to private paramilitary activity in Bedford County and Appomattox County, Virginia, advising of applicable state law provisions against such activity
6/11/20 – Sent a letter to local officials in response to private paramilitary activity in Altavista, Virginia, advising of applicable state law provisions against such activity
1/8/20 – Published an op-ed laying out the reasons why a recent movement by local governments to declare themselves Second Amendment “sanctuaries” is legally dubious
10/2/19 – Published an op-ed calling attention to militia groups emboldened by the president’s statements and in violation of state and federal laws
8/18/19 – Published an op-ed describing how state and federal law prohibits private militias from operating outside of state authority
7/1/19 – Published an op-ed highlighting how federal law prohibits private militias from assuming the duty of Border Patrol officers
1/2/19 – Published an op-ed outlining how local jurisdictions can protect public safety at protests and rallies while preserving constitutional rights
11/12/18 – Submitted a statement supporting a proposed Portland, Oregon, ordinance authorizing content-neutral time, place, and manner regulations for demonstrations held in the city
11/7/18 – Published an op-ed calling on border state governors to use their state laws to stop the private militias from deploying to the border to “assist” the U.S. military and Customs and Border Patrol
8/10/18 – Published an op-ed in the Washington Post with the former mayor of Charlottesville explaining how local jurisdictions around the country can use existing constitutional provisions and state laws to prevent unauthorized paramilitary activity
8/9/18 – Filed an expert declaration identifying threats to national security, law enforcement, and foreign policy posed by widespread availability of code for 3D-printed guns
2/8/18 – Released a 50 State Catalog of laws prohibiting private armies at public rallies