In June, CLDC gave you an update on the various civil rights cases that we and others have filed against the various local governments (and their employees) that violated Water Protectors’ civil rights during the 2016 and 2017 Standing Rock actions opposing the Dakota Access Pipeline (DAPL.) As we noted at that time, these cases had been in legal limbo, some for nearly two years. The North Dakota court put them on hold for an unreasonably long time while considering the defendants’ various motions to dismiss. For example, in a case filed on behalf of Sophia Wilansky, (a woman who had most of her arm torn off by a munition deployed by law enforcement), the defendants filed a motion to dismiss in January 2019, and although the final brief was filed that March, there has been no action by the court on the defendants’ motion, and even “discovery” (exchanging documents and taking statements under oath) has been on indefinite hold. More recently, we filed on behalf of another Water Protector, Eric Poemoceah, who had his pelvis broken by police while peacefully demonstrating and livestreaming as a journalist.
In April of this year, CLDC’s two Standing Rock civil cases, and the three others we’re aware of, including a case we assisted with early on, were all transferred to a new judge. The transfer renewed our hope that we would soon be able to obtain documents from the government bodies and take depositions (interviews under oath) of their employees (cops) who were involved. That hope turned out to be well-founded.
This month, the newly-assigned judge broke the logjam in two of the cases which were filed before ours, allowing discovery to move forward (see below for more explanation). Although the judge has not yet reached CLDC’s two cases, it appears that he is reopening the cases in the order in which the defendants’ motions to dismiss were filed, so we expect ours to restart soon.
DUNDON v. KIRCHMEIER
In Dundon et al v. Kirchmeier et al., the plaintiff Water Protectors filed a federal class action police brutality lawsuit against various local governments for use of highly dangerous Specialty Impact Munitions (SIM), explosive teargas grenades, teargas canisters, and a water cannon spraying high pressure water in freezing conditions, as a means of dispersing protests and prayer ceremonies associated with the anti-DAPL demonstrations. CLDC’s Lauren Regan helped with the initial filing. In April 2018 the defendants filed a motion to dismiss, asking the court to reject the case without allowing any discovery. Finally, on September 20, 2020, the newly-assigned judge rejected the defendants’ motion. He issued an order that instead allows some limited discovery to give the plaintiffs the information they need to reject the governments’ various factual arguments.
Normally this would be what we expect—if the defendant raises a factual argument about what happened, the court is supposed to allow discovery, and then decide whether a reasonable jury could find in the plaintiffs’ favor. If so, the case is supposed to go forward to a jury. However, we were concerned that the judge (appointed by President Trump) would agree with the defendants that the facts they presented as “undisputed” should give them “qualified immunity” from the lawsuit.
Qualified immunity is a doctrine that was created by the Supreme Court in 1967. When applied by a judge inclined to defer to law enforcement, this theory has been used across the nation to dismiss police misconduct cases out of hand, without discovery. Disturbingly, independent studies have found that judges’ decisions to let police off the hook on the basis of qualified immunity vary wildly depending on what part of the country the court is in.
Where the police arguments for qualified immunity involve disputes about facts, however, the court is supposed to allow for some discovery. Thankfully, in the Dundon case, the new judge did follow that general rule. The defendant-cops in Dundon made several factual arguments that were hotly disputed by the plaintiffs—for example, that the demonstrators had no right to be where they were when they were assaulted by police; that they weren’t really assaulted by police; that they were bad people with bad prior behavior; and various other standard attempts by abusive cops to “blame the victim.” Because these facts are disputed, the judge correctly is allowing discovery to proceed.
The judge did, however, limit the discovery dramatically. On September 21, 2020, the judge issued an order allowing each side to take the depositions of only seven people, despite the fact that dozens of law enforcement officers and numerous private security firms were involved in the relevant events. Document discovery is similarly limited.
That said, reading this week’s opinion and the prior decision rejecting the motion to dismiss has shown us a path forward for the Wilansky and Poemoceah cases. We will file motions to conduct discovery and, given the outcome in the Dundon class action case, we expect those motions to be granted.
As mentioned above, this month the same judge lifted the hold on another Standing Rock (Oceti Sakowin) civil rights case, Thunderhawk et al. v. Morton County et al., denying the defendants’ requests to dismiss that case as well. Another class action, that lawsuit challenges the government agencies’ decision to close a public road during the demonstrations, preventing the local Indigenous people from assembling to express their opposition to the DAPL and violating their civil rights in other ways. It also names TigerSwan, one of the private security companies involved, for working with the government to take those unconstitutional actions.
This month the judge rejected some of TigerSwan’s “counterclaims” against the plaintiffs, and then issued a 100-page opinion refusing to dismiss the case. Although only the “freedom of assembly” claim was allowed to go forward, the case is alive and discovery will proceed.
Importantly, the judge also rejected TigerSwan’s argument that it could not be sued for civil rights violations because it is not a “government actor.” The judge held that “The facts as alleged by the Plaintiffs could show TigerSwan was engaging in traditional, exclusive government functions so as to transform them into a state actor for purposes of §1983 (the federal civil rights statute). The Plaintiffs have alleged facts which, taken as true, could plausibly show TigerSwan and state and local officials had a “meeting of the minds” as to a joint operation in which TigerSwan was a willing participant to close the area in question in alleged violation of the plaintiffs’ constitutional rights.” (parenthetical added)
Finally, the judge also refused to address the defendants’ “qualified immunity” arguments at this stage of the case because of the sharp disputes of fact that underly those arguments.
Although the facts of the Thunderhawk case are not as similar to our Wilanksy and Poemoceah cases as those in the Dundon case, we are heartened by the judge’s lengthy, detailed rulings in both cases that allow the plaintiffs to conduct discovery and proceed toward a decision on the merits. These cases are of critical importance to the larger climate movement. If the abusive tactics used by the North Dakota police on nonviolent protestors go unchecked, we know other frontline protests will be subjected to similar abuse. Several North Dakota cops traveled around the country training other cops on the “Standing Rock Model” of police misconduct. We must send a very strong and clear message that using tactics such as a water canon in the middle of a North Dakota winter on a crowd of nonviolent protestors, or blowing up a young woman’s arm with an explosive device, or breaking a man’s pelvis and forcing him to walk to his own ambulance are, intolerable, illegal, excessive uses of police force, and must never occur again.
We’ll keep you posted as we go forward with the Wilansky and Poemoceah federal civil police misconduct cases. In the meantime, for all of you who are fighting for a livable planet, thank you; and know that CLDC has your back.