Case 3:16-cr-00051-BR

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BILLY J. WILLIAMS, OSB #901366

United States Attorney
District of Oregon
ETHAN D. KNIGHT, OSB #992984
GEOFFREY A. BARROW
CRAIG J. GABRIEL, OSB #012571
Assistant United States Attorneys
ethan.knight@usdoj.gov
geoffrey.barrow@usdoj.gov
craig.gabriel@usdoj.gov
1000 SW Third Ave., Suite 600
Portland, OR 97204-2902
Telephone: (503) 727-1000
Attorneys for United States of America

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON
UNITED STATES OF AMERICA

3:16-CR-00051-BR

v.
AMMON BUNDY,
JOSEPH OSHAUGHNESSY,
RYAN BUNDY,
SHAWNA COX,
PETER SANTILLI,
DAVID LEE FRY,
JEFF WAYNE BANTA,
KENNETH MEDENBACH, and
NEIL WAMPLER,

GOVERNMENTS MOTION IN LIMINE

TO EXCLUDE THE DEFENSE OF
ADVERSE POSSESSION

Defendants.
The United States of America, by Billy J. Williams, United States Attorney for the
District of Oregon, and through Ethan D. Knight, Geoffrey A. Barrow, and Craig J. Gabriel,

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Assistant United States Attorneys, hereby files this motion in limine to exclude the defense of
adverse possession.
The government anticipates defendants may attempt to present an affirmative defense
based on a belief they were attempting to establish a claim of adverse possession at the Refuge.
The government seeks an order from the Court excluding an affirmative defense or argument for
acquittal relying on the common law principles of adverse possession because there is no
controlling legal authority that would support the use of such a defense.
I.

The Law of Adverse Possession

Adverse possession is the common law principle that permits the lawful acquisition of

land through a defined form of possession. Generally, property owned by the United States is
not subject to adverse possession. See United States v. California, 332 U.S. 19, 39-40 (1947)
(The Government, which holds its interests here as elsewhere in trust for all the people, is not to
be deprived of those interests by the ordinary court rules designed particularly for private
disputes over individually owned pieces of property; and officers who have no authority at all to
dispose of Government property cannot by their conduct cause the Government to lose its
valuable rights by their acquiescence, laches, or failure to act.); Jackson v. United States, 56
F.2d 340, 343 (9th Cir. 1932) ([N]o adverse occupation of any governmental property, however
long continued, can affect the right of the United States.); United States v. Gossett, 416 F.2d
565, 569 (9th Cir. 1969) (Of course, adverse possession does not run against the United
States.).
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Additionally, there is no good faith exception that would permit the adverse possession of
federal property in defendants case.

While a narrow good faith exception exists regarding

adverse possession:
A claim is not held in good faith where held with knowledge that the land is
owned by the United States. A claim is not held in peaceful, adverse possession
where it was initiated while the land was withdrawn or reserved for Federal
purposes.
43 C.F.R. 2540.0-5(b) (emphasis added).

While the Color of Title Act allows adverse

possession claims against the United States where there is a good faith basis for such a claim,
2540.0-5(b) requires claimants not have previous knowledge that the United States possessed
title to the land. See United States v. Wharton, 514 F.2d 406, 408 (9th Cir. 1975) (upholding
Day v. Hickel, 481 F.2d 473, 476 (9th Cir. 1973).

Clearly, in this case defendants had previous

knowledge that the United States possessed title to the land.

Relatedly, there is also no legal authority for defendants to argue that their presence at the
Refuge was simply a byproduct of a misunderstanding of the law.

In Finn v. United States,

the Ninth Circuit denied an honest legal misunderstanding as a basis for a defense.

219 F.2d

894 (9th Cir. 1955). In Finn, the defendants were in a dispute with the federal government over
ownership of an airplane and decided to make a citizens arrest of the chief federal prosecutor
for the Southern District of California. Id. at 898.

Finn and another defendant were charged

with violating 18 U.S.C. 372, Conspiracy to Impede a Federal Officer, and asserted a defense
that they thought when they arrested [the prosecutor] he had violated their civil rights . . . and
that having honestly thought so they lacked the specific requisite intent to be guilty. Id. at
899. While the defendants claimed an honest mistake of law, the court held that the legal
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misunderstanding did not negate the requisite intent and did not qualify as a defense. Id. at
899-900.
II.

The Ninth Circuit found no basis for reversing their convictions. Id. at 903.

There Is No Controlling Legal Authority That Permits the Use of Adverse Possession
in Defendants Case
Adverse possession is not a recognized defense to criminal conduct.

There is no

controlling legal authority that permits defendants in a criminal case to use the civil, common
law principles of adverse possession as an affirmative defense. Even if the Court were to
conclude that such a defense does indeed exist, it would not be appropriate in defendants case
because none of the elements for any of the charged offenses require proof of land ownership or
occupation: defendants are charged with conduct that proscribes the carrying of firearms in
federal facilities and the interfering with the work of federal employees, but not with an offense
that has an element that is relevant to any of the principles of adverse possession.

Finally, any

presentation of the defense would be needlessly confusing to the jury.

For these reasons, the Court should preclude defendants from arguing to the jury that
adverse possession is a cognizable defense to the charged conduct.
Dated this 29th day of July 2016.
Respectfully submitted,
BILLY J. WILLIAMS
United States Attorney

s/ Ethan D. Knight
ETHAN D. KNIGHT, OSB #992984
GEOFFREY A. BARROW
CRAIG J. GABRIEL, OSB #012571
Assistant United States Attorneys

Governments Motion In Limine to Exclude the Defense of Adverse Possession

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