NORTH DAKOTA COURT RULING DISMISSES THE CIVIL RIGHTS CASE– MISSES THE MARK.

MORTON COUNTY POLICE OFFICER SHOOTS RECENT COLLEGE GRAD AT STANDING ROCK PROTESTS FROM A GUN TURRET, BLOWS UP HER ARM; NORTH DAKOTA COURT RULING DISMISSES THE CIVIL RIGHTS CASE– MISSES THE MARK.

This federal civil rights lawsuit was filed in November 2018, and pertains to the infamous violence perpetrated by police and private security against Water Protectors engaged in political activism opposing the Dakota Access Pipeline at Standing Rock, near Mandan, ND. The Indigenous-led #NoDAPL protests began in April 2016, ended in February 2017, and involved one of the largest gatherings of Native American tribes and the largest resistance in the US to fossil fuel infrastructure gravely exacerbating catastrophic climate change to date.

In the early hours of November 21, 2016, then-21-year-old Sophia Wilansky had taken part in a protest on the Backwater Bridge in Morton County. Earlier that frigid evening, law enforcement had used excessive weaponry against protestors including water cannons in the freezing temperatures, chemical weapons, and a multitude of munitions that caused grave injuries to numerous people gathered on the bridge that had been closed to traffic. Despite the fact that law enforcement denied culpability for years, the Court ruling states:

While Wilanksy and the other protestor were still behind the metal sheet next to the burned out vehicle, Defendant Jonathan Moll (“Moll”) positioned himself on the turret of a Humvee with his 12-gauge shotgun to better aim at Wilansky. One of the law enforcement officers eventually shot a less-lethal munition at Wilansky. The Amended Complaint indicates two other officers may have hit her with less-lethal munitions…. After this, Wilansky “began running as fast as she could south, away from the barricade and [burned-out] truck” yelling, “I’m leaving. Please don’t shoot.” Wilansky was able to run approximately thirty (30) yards south. While running, she saw a piece of plywood lying on the ground, stopped, and picked it up to use as a shield. As she stopped, Moll shot an Aerial Signaling/Warning Munition3 which hit Wilansky’s left forearm and exploded, causing significant injuries. According to the Amended Complaint, “[t]he blast destroyed almost all of the arteries, skin, tissue, muscle, nerves, tendons, and bone in her left forearm.” Wilansky claims the officers “laughed and cheered” and “congratulated Defendant Moll on his marksmanship.” Amended Order of the US District Court for North Dakota, p. 4 (citations omitted).

Despite the delays and obfuscation employed by the defendants to cover this up, we know that the complaint adequately alleged that Officer Moll aimed and intended to shoot Ms. Wilansky from the turret of his tank-like vehicle like a sniper hunting a human. The Aerial Signaling/Warning Munitions shot by Moll are explosive munitions launched from a 12-gauge shotgun shell. The shell contains flash powder and a fuse that ignites when fired from a shotgun. They are designed to travel approximately fifty (50) to one hundred (100) meters before the fuse ignites the flash powder and creates a bright flash with loud sound. When it is shot directly at a human and explodes on their flesh, it is a deadly weapon. He intended to shoot her, she crumpled to the ground and almost lost her arm and her life that night.

“I have committed to continue the fight to expose this extreme police violence with the hope that it prevents anyone else from enduring what I have gone through. At 21 years old, I lost the use of my arm because a police officer shot me from a gun turret with an exploding grenade at a protest. My life will never be the same, but I will also not be scared away from fighting for what is right.” Sophia Wilansky, plaintiff.

“We know the court misinterpreted the allegations in the complaint and the applicable law in its opinion dismissing this case. As alleged, Officer Moll intentionally shot Sophia Wilansky with an explosive munition loaded into a 12-gauge shotgun. He did not shoot near her to scare her into dispersing faster – he shot directly at her, while she was running from the burned-out truck as she had been directed to do. The explosive munition hit her directly, with such a severe use of force that it almost blew her arm off, fully stopping her ability to move or continue dispersing. The officers laughed and congratulated Moll for his marksmanship, removing any doubt that he intended the explosive munition to make contact with her and stop her movement. No rational person hearing those facts would believe the intent was to make Ms. Wilansky leave the area more quickly.” Said Lauren Regan of the Civil Liberties Defense Center, one of Sophia Wilansky’s attorneys.

The 2021 Supreme Court case the court relied on, Torres v. Madrid, is not germane and has been misinterpreted by the District Court. That case actually broadened the situations in which people can sue the police for use of excessive force. In that case, police officers successfully argued in the lower courts that they had not “seized” Torres because she kept driving after they shot her. The Supreme Court held that “The application of physical force to the body of a person with intent to restrain is a seizure, even if the force does not succeed in subduing the person.” That ruling is irrelevant to Ms. Wilansky’s situation – clearly the force succeeded in subduing her. In fact, the Torres Court explicitly said “In this opinion, we consider only force used to apprehend. We do not accept the dissent’s invitation to opine on matters not presented here — pepper spray, flash-bang grenades, lasers, and more.”

The Torres Court did say, as an aside (what lawyers call “dicta”), that not every use of force would be a “seizure” under the law, giving “accidental” force as one type of force that the Court had previously ruled was not a seizure (like shooting a bystander). But the word “disperse” or “dispersal” is nowhere to be found in the Torres opinion. The Court failed to even address that in many instances Courts have ruled that the deployment of flashbang devices clearly created a

constitutional violation. The Court’s opinion acknowledged that there is a presumption here that the police intentionally fired upon Ms. Wilansky, and that only the doctrine of Qualified Immunity1 shields them from liability in this lawsuit. Qualified immunity was directly challenged in this lawsuit because it is an outdated and patently unfair doctrine that needs to change.

That said, as noted above, as clearly alleged in the complaint (which the courts are required to take as true for purposes of a motion to dismiss), Officer Moll intended to stop Sophia in her tracks, and he succeeded in doing so. The court dismissed the case ruling that Moll’s actions did not “seize” Ms. Wilansky and thus he should completely escape liability for his actions— thus ruling that yet another example of sadistic police misconduct is lawful in the eyes of this Court and is thus permitted to happen again—possibly to your daughter, friend, or family member– merely attending a political protest. It is a dark day for democracy and the First Amendment when police are allowed to stand behind razor wire and blast protestors with tear gas, rubber bullets, explosive munitions, and water cannons on a freezing night while doing the bidding for a pipeline corporation profiting off of the climate crisis. Ms. Wilansky intends to appeal the Court’s deeply flawed decision.