Nine Dakota Access Pipeline protesters sued Morton County and its sheriff, Kyle Kirchmeier, for excessive force in November 2016 over violence that broke out on the Backwater Bridge, along the pipeline’s route, just before Thanksgiving. The protesters claimed police used a high-pressure water cannon against them during a peaceful, prayerful gathering in sub-freezing temperatures.
But after reviewing witness accounts and video of the incident, U.S. District Judge Daniel Hovland denied the protesters’ request for a preliminary injunction against the use of non-lethal force at protests sites.
“At this early stage of the litigation, and after a careful review of the record, the Court finds no reasonable juror could conclude the level of non-lethal force used by law enforcement officers during the chaos on November 20, 2016, at the Backwater Bridge was objectively unreasonable, based on the totality of the facts and circumstances that confronted law enforcement officers on the bridge,” Judge Hovland wrote in his Tuesday ruling.
The protesters’ attorney, Rachel Lederman, said that the ruling “sends the wrong message to law enforcement.”
Lederman, who practices out of San Francisco, noted that, “The judge seemed to give a lot of credence to fear expressed by law enforcement and an atmosphere of hysteria around the water protectors [protesters], which is a bit hard to understand. No officer was injured, and there was one person who tried to cross the barricade, and he was immediately arrested. We acknowledge that there was some civil disobedience within a largely peaceful protest, but there was no riot occurring on the bridge, law enforcement was never overrun or under attack, and there was no practical or legal implication for the high levels of dangerous weapons used.”
The Backwater Bridge, located along Highway 1806 outside Mandan, North Dakota, is a particularly charged site along the protest route. At the end of October 2016, chaos erupted in the area when protesters set up camp on private property, blocking roadways and setting fires, according to Hovland’s summary of events in his 35-page ruling. He adds that many of the protesters were armed with hunting knives, hatchets, rocks and other weapons, wore bandannas to cover their faces and refused instructions from law enforcement to leave the area.
On October 28, the bridge was closed off as “unsafe” due to a large fire set by the protesters there, which included the burning of a vehicle.
But protesters continued to gather in the area. In fact, authorities reported that hundreds of protesters convened at the forbidden site on Nov. 20, 2016, using bolt cutters and a semi-truck to remove burnt-out dump trucks that were part of a law enforcement barricade.
When the police arrived, they claim protesters threw rocks, frozen water bottles and other items at them and that they “feared for their physical safety due to the imminent threats of serious bodily injury or death they were encountering,” Hovland said.
Law enforcement deployed tear gas and bean bags, as well as a spray of water, to keep protesters away from the barricade line, according to their accounts. The water hoses had been requested from the nearby Mandan fire department to address fires that had been set in the area.
The police contend that no “water cannon” was used, contradicting protester accounts.
“When you have a crowd at night, it’s just really likely that the wrong person is going to be hit, and in this case I think it’s acknowledged that [the police] were doing something wrong,” Lederman said. “They were just shooting into the crowd and spraying into the crowd trying to get people to leave … even the medics who were treating wounded people were subjected to the munitions and the water.
“The constitution sets limits on government use of force, and you can’t use random force to try to get people to go away,” Lederman added. “Force has to be justified by some kind of actual threat by an individual person.”
In his ruling, Hovland cited Supreme Court precedent finding that free speech rights do not give demonstrators liberty to trespass.
“The Court finds that law enforcement officials had the clear authority to direct the Plaintiffs and other protesters to disperse and remove themselves from the Backwater Bridge and land located along the north bank of the North Branch of the Cantapeta Creek on November 20, 2016,” Hovland wrote. “The named plaintiffs and pipeline protesters did not have an unfettered constitutional right to exercise their First Amendment rights on the Backwater Bridge on November 20-21, 2016.”
Not surprisingly, attorneys for the sheriff’s department were pleased with the ruling.
Lead attorney Randall Bakke, with Bakke Grinolds Wiederholt in Bismarck, North Dakota, said in an email, “Given the facts and applicable law, we believe the court’s ruling is correct.”
Lederman disagreed, calling the decision a “clearly wrong ruling” that is “riddled with inconsistencies.”
The protesters will be asking that further proceedings in the District of North Dakota be stayed while they file an appeal with the Eighth Circuit.
On Jan. 21, Standing Rock Sioux Tribe chairman Dave Archambault II asked all protesters to leave the “spirit camps” along the Dakota Access route, despite looming progress on the pipeline under President Donald Trump’s administration.
Archambault cited protests becoming violent as his primary concern in asking demonstrators to disperse.