BISMARCK, ND—On Thursday, Burleigh County Judge Cynthia Feland dismissed felony charges against 15 Water Protectors arrested on October 27 who were praying or protesting near the route of the Dakota Access Pipeline. Even by police accounts, all but a couple people who may have been provocateurs, were not involved with setting hay bales on fire some distance from the main protest site. Despite this, all 147 Water Protectors arrested that day were charged with the felony, “Conspiracy to Endanger by Fire.” The court found that the prosecutor had presented no evidence that any of the individuals charged had conspired to set any fires.
“The Water Protectors were held for 48 hours or more, forced to removed outer layers of clothing, crowded into freezing chain link cages, and denied food, water and bathrooms for long periods,” said Brandy Toelupe, attorney with the Water Protector Legal Collective (WPLC; formerly Red Owl), an initiative of the National Lawyers Guild. “They were strip searched, and taken to jails all over North Dakota,” she added.
Because of the felony charges, the Water Protectors’ bond was set at $1500 cash and they faced prison terms of up to five years. Had there not been a crowd-funded bail fund, many would have remained in jail for weeks. By alleging a “conspiracy,” State’s Attorney Gabrielle Goter attempted to impose harsh consequences on the Water Protectors absent any evidence of their involvement in the fire. No individual defendant was identified doing anything specific.
Judge Feland ruled on her own motion that the prosecution failed to present sufficient facts in its affidavit showing probable cause that any of the defendants before the court, or any of the 147 arrested and charged on October 27, had committed the “Conspiracy to Endanger by Fire” felony.
“The Affidavit supporting the information however provides no specifically named defendants who committed this crime and how and when they each committed it…. In addition, the affidavit does not explain how the defendants agreed to commit the crime. The case law is well-established that in order to provide sufficient probable cause, the State must show that a crime has been committed and the accused is probably guilty of committing it,” read the court order.
“While the Water Protectors and their families are relieved by Judge Feland’s decision, State’s Attorney Gabrielle Goter should not recharge these cases and be reprimanded for deliberately overcharging 147 people with felonies that she knew she could not prove,” added Toelupe. “Overcharging is a dangerous and misleading strategy. It subjects people to preemptive punishment through detention and high bail, and intimidates people from engaging in First Amendment activity. It also misleads the public about what’s being prosecuted.”
The WPLC has been on the ground for months providing Water Protectors with legal representation, jail support, legal observers, and other direct legal assistance. WPLC members were in court monitoring the proceeding and were representing some of the Water Protector defendants.
The next court date is set for December 5, when more than 100 additional felony cases from the October 27 action will be heard. All are expected to be dismissed. Felony cases from actions on other dates will also be heard at that time.