Standing Rock Water Protector Wins North Dakota Federal Appeal

Nearly eight years after he was injured by police at Oceti Šakowiŋ (Standing Rock), Eric Poemoceah has won his appeal of a North Dakota District Court order dismissing his case. A member of the Comanche Nation, Mr. Poemoceah joined one of the largest indigenous led resistance campaigns at Standing Rock (near Mandan, North Dakota) to support the peaceful opposition to the construction of the Dakota Access Pipeline led by the Oceti Šakowiŋ (the Seven Council Fires, or Great Sioux Nation). While pleading with police to help protect the water from the planned pipeline, Mr. Poemoceah was suddenly stormed by dozens of riot-gear-clad police, one of whom landed full force on top of him and broke his pelvis. The officers then forced him to walk about 200 feet to the police van, ridiculing his cries of pain.

Just before the assault, Mr. Poemoceah was saying to the officers, quietly and calmly:

“I know you have a job to do and a family to provide for, but why do it with protecting oil? That’s all we’re trying to do sir, is protect — protect the water. I know — I know you’re looking at me and I know you just shook your head yes because you have a heart. You have a soul. And I know — you look like a very prayerful man. Why don’t—why don’t you be honorable and set down your badge in front of 6,100 people.”

The lower court dismissed the case without allowing depositions or other “discovery” in the case; the federal appellate court, thankfully, disagreed, issuing a unanimous opinion in our client’s favor. The court noted:

“The district court found that when Poemoceah “advanced toward the officers,” a reasonable officer could feel threatened. See Tatum, 858 F.3d at 547. But Poemoceah alleged that he was unarmed and peacefully attempting to negotiate the safe passage of elders from the site of the protest when he “advanced slightly (a couple of feet).” He also “remained at a respectful distance and did not make any sudden movements.” Based on these allegations, we have difficulty concluding that it was objectively reasonable for an officer to believe that Poemoceah posed a threat. According to the complaint, Poemoceah also was not resisting arrest or attempting to evade arrest when he “instinctively” ran from the officers. He was not under arrest, and he had been given a command to stay in place or to stop. . . . The complaint describes no circumstances that prevented the officers from issuing such an order.”

“Viewing the factual allegations as a whole and drawing all inferences in his favor, Poemoceah plausibly alleges a Fourth Amendment excessive force claim against Swenson. And Poemoceah’s right to be free from excessive force was clearly established in 2017. See Mitchell, 28 F.4th at 898 (collecting cases; explaining we have applied the Graham factors and “held time and again that, if a person is not suspected of a serious crime, is not threatening anyone, and is neither fleeing nor resisting arrest, then it is unreasonable for an officer to use more than de minimis force against him;” and concluding this particularized right was clearly established in, and before, 2016).”

Federal civil rights lawsuits that hold law enforcement responsible for police misconduct and brutality are hard fought battles. The unconstitutional actions of North Dakota law enforcement against Water Protectors and Climate Defenders at Standing Rock could not be tolerated and would have provided a tacit green light to cops around the country who often act as oil and gas henchmen in rural areas where the frontlines of the pipeline fight continues. Long after the spotlight has moved on to the next battle, groups like the Civil Liberties Defense Center and the Water Protector Legal Collective continue to push back on state repression in the courts and have the back of our movements with the goal of making activists safer while engaging in political dissent.

“The bigger the bully the harder the fight will be—and there are no bigger bullies than cops and the fossil fuel industry—which is why these lawsuits are so important to litigate like hell,” said Lauren Regan, Director of Litigation & Advocacy at the CLDC.

Many thanks and gratitude to our client, Eric Poemoceah for sticking with this lawsuit and having the courage to stand up and challenge this egregious civil rights violation on behalf of so many other water protectors who also were injured, traumatized and had their rights violated but did not press their cases in the courts.  Upon hearing that the appellate court reversed the erroneous lower court dismissal Eric wrote: “This has been a long journey and to hear this kind of news makes my heart soar in the beliefs of change. I literally broke down in tears when I started to read this. I don’t know where this goes from here but I do know one thing, like the Eagle has watch over the skies the Civil Liberties Defense center has Watch over the Earth & Water Protectors Backs. I could also say you all have watch over the Justice system to make sure they all are doing the right thing. Thank you all & I’m ready to keep fighting forward. Congrats on the victory & keep up the Amazing work!!

Thank you, Eric, CLDC is ready to keep fighting forward with you!