(CN) — Dakota Access Pipeline protesters seeking reinstatement of their case against law enforcement officers who gassed them, fired less-lethal munitions and sprayed them with firehoses during a freezing North Dakota November told an Eighth Circuit panel Tuesday afternoon that a federal judge improperly glossed over factual disputes in granting summary judgment to the officers.
“Water protectors” Vanessa Dundon, David Demo, Guy Dullknife, Frank Finan, Mariah Bruce and Crystal Wilson were at a prayer camp established by the Standing Rock Sioux Tribe just south of the Backwater Bridge, near a construction site for the Dakota Access Pipeline, in late November 2016. All six suffered injuries during a confrontation between police and protesters on the night of Nov. 20, when police made headlines by spraying water at the protesters in sub-freezing temperatures alongside stinger grenades, beanbag rounds, rubber bullets and tear gas.
The protesters brought suit against two North Dakota counties and their sheriffs, plus the city of Mandan and its police chief and up to a hundred John Does, shortly afterward but were shot down first by U.S. District Judge Daniel Hovland and then by U.S. District Judge Daniel Traynor, who took over the case after Hovland took senior status in 2019. Traynor, in his order granting summary judgment to the law enforcement officers, found that they had not committed a “seizure” of the protesters, that if they had they would be entitled to qualified immunity, and that the protesters’ First Amendment rights had not been infringed upon because they were trespassing on private property at the time.
In her arguments before the Eighth Circuit Tuesday, attorney Rachel Lederman said Traynor had taken far too much of law enforcement’s side of the story at face value. “This case is fundamentally about disputes of fact,” she said. “The story defendants have put forth to justify their use of force is hotly disputed.”
By cutting off the case before discovery could be conducted, Lederman said, Traynor had deprived the protesters of the chance for a jury to look at the evidence and resolve those disputes, particularly whether protesters posed enough of a threat to law enforcement to justify the use of force.
“Defendants’ use of force caused serious injuries, such as broken bones and detached retina,” Lederman said. “Only a single officer was even slightly injured, without requiring medical attention. There’s no evidence whatsoever that any of the named plaintiffs were threatening in any way.”
The use of water hoses or cannons in particular raised concerns for Lederman and for attorney Michael Avery, of the National Police Accountability Project, who pointed out that the last time water cannons were used on protesters in the United States was in the apartheid south during the Civil Rights Movement of the 1960s. Officers, moreover, were “ensconced in a multi-layered barricade” of armored vehicles and concertina wire, and drastically outnumbered protesters at the time, Lederman argued. Furthermore, she said, construction had already been halted on the pipeline, neutralizing any threat protesters posed to that project.
Arguing for the law enforcement officers, attorney Randall Bakke said that Lederman’s characterization ignored clear threats to law enforcement, including incidents in which protesters threw tear gas shot into their ranks at police back toward the barricade and an alleged attempt by some protesters to flank the officers by circling around the bridge.
Whether or not the plaintiffs in this case were involved in that behavior, Bakke said, was irrelevant. “Everybody on the bridge was trespassing, and everybody on the bridge was interfering with a government function,” he said. As to the seizure issue, the officers never prevented the protesters from leaving the bridge. “They always could turn around and go back to the protester camp,” Bakke said, “and some of the plaintiffs did.”
Avery, meanwhile, argued that Bakke’s “so leave” argument misunderstood the nature of Fourth Amendment seizures. Using force to make someone go away, he said, was a means of taking control of their person. “It’s just common sense that the freedom to move isn’t just the choice to leave where you are,” Avery said. “It’s the choice to stay where you are.”
A three-judge panel of Judges Steven Colloton, Duane Benton and Steven Grasz — two George W. Bush appointees and a Donald Trump appointee, respectively — took a light touch with questioning throughout the arguments. Colloton took both Lederman and Bakke to task at different points, pointing out to Lederman the high standards required for law enforcement officers’ actions to “shock the conscience” and quizzing Bakke on the temperature at the time his clients brought out firehoses — which Bakke recalled as “in the teens.”
The Dakota Access Pipeline itself was completed just a few months later in April 2017 despite opposition from Native American and environmentalist groups. It has been operating since June 2017, apart from a brief window in 2020 following a decision by U.S. District Judge James Boasberg requiring its operators to empty it of oil pending new environmental review, an order quickly overturned by the D.C. Circuit. The U.S. Supreme Court ultimately affirmed the need for more environmental review, but made no move to halt the pipeline.
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