Indigenous Peoples and Human Rights

September 23, 2023

Standing Rock: Federal Appeals Court Hears Case of Law Enforcement Brutality at Backwater Bridge

From L to R: Center for Protest Law and Litigation (CPLL) Executive Director Mara Verheyden-Hilliard, Michael Avery with National Police Accountability Project, CPLL Senior Counsel Rachel Lederman, Standing Rock water protector and attorney Wašté Win Young, Co-Counsel Melinda Power, CPLL attorney Amanda Eubanks outside the courthouse in St. Louis.

Standing Rock: Federal Appeals Court Hears Case of Law Enforcement Brutality at Backwater Bridge 

By Brenda Norrell
Copyright Censored News
Sept. 19, 2023

ST LOUIS -- A federal appeals court heard arguments in the class action lawsuit filed for excessive force at Backwater Bridge at Standing Rock by water protectors who suffered critical injuries. The issues argued included whether water protectors were free to leave, whether law enforcement feared for their lives, and whether the use of munitions, bean bags filled with shot, and water sprayed on water protectors in temperatures below freezing, were justified or legal.

Rachel Lederman, lead counsel for water protectors, told the Eighth Circuit Appeals Court's three-member panel of judges, that the district court based its decision in favor of law enforcement are disputed.

“The story defendants have put forth to justify their use of force is hotly disputed."

Lederman an attorney with the Center for Protest Law and Litigation, said that a jury should decide whether it was objectionably reasonable for officers to bombard hundreds of individuals with high-pressure water hoses, impact munitions, explosives, and chemical agents for ten hours, causing serious injuries, for the people that were allegedly causing problems.
Lederman said the plaintiffs suffered serious injuries, including broken bones, and detached retina. Hundreds needed medical attention. There was no evidence that any of the plaintiffs threw anything or were threatening in any way -- but they were hit in parts of the body that constitute deadly force, such as the head, chest, and groin.

Disputing law enforcement's claim that people posed a threat to work on the pipeline, Lederman pointed out that the federal government had shut down construction on the Dakota Access Pipeline. There was no work going on, and no way they could have interfered with work on the pipeline even if they could have crossed the massive barricade.

Disputing law enforcement claims, Lederman said officers were not greatly outnumbered. According to law enforcement's own records, there were 400 protesters and 350 officers, and individuals arrived at different times. The people were praying, singing, protecting elders, and videotaping. There was no evidence that they were acting as a unit. The plaintiffs did not engage in any violent acts, and officers were protected behind the barricade, she said.

Former Baltimore Police Commissioner Thomas Frazier reviewed the evidence in the case and concluded that officers were well protected, virtually impossible for protesters to get across the barricade, and this was not a riot, Lederman said.

"There was no justification to use water canons and a massive onslaught of munitions on the entire crowd."

Law enforcement put forth disputed facts, claiming there were burning logs, and that protesters attempted to overrun the barricade.

Lederman pointed out that Waste Win Young said it was the police use of weapons that attracted people to the bridge. The National Congress of American Indians documented in its amicus brief the non-violent nature of the Standing Rock movement. Lederman questioned if it was right to use equipment meant for firefighting on peaceful water protectors.

Commissioner Frazier concluded that Code Red and Signal 100 broadcast created a false impression among responding officers, that a dire threat existed when actually law enforcement was safely behind the barricade.

Lederman said the district court accepted law enforcement's claims on these issues.
She said law enforcement fired indiscriminately in a "free-for-all all" grabbing whatever weapons they could that night.

Three hundred water protectors were injured on the night of November 20, 2016, at Backwater Bridge at Standing Rock. Twenty-six were seriously injured and taken by ambulance to nearby hospitals.

Shawn Grinolds, attorney defending Morton County and law enforcement, said officers feared for their lives because a month earlier, on Oct. 27, 2016, at north camp, water protectors "stampeded hundreds of bison at law enforcement."

He said another reason they feared for their lives was at Backwater Bridge officers were "flanked" by water protectors "into the prairie."

Although law enforcement claims water protectors threw metal objects at officers, and had weapons in camp, Lederman said law enforcement claims are disputed.

The LRAD and Bearcat at North Camp. Photo by Jenni Monet for The PBS NewsHour

Grinolds claimed water protectors were threatening to breach the barricade, were trespassing, and the protests had "gotten out of hand."

Grinolds said officers feared the protesters would breach the barricade and reach the LRAD (sound cannon) and bearcat (armored vehicle) and "those are loaded with munitions" shotguns and live weapons, he said.

"What happens if the protesters get ahold of those."

Water blasted by militarized police on water protectors at Backwater Bridge at Standing Rock. Courthouse News: "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.

Referring to the blast of water in below-freezing temperatures, Grinolds said it was a "water hose" attached to a fire truck and a brush truck. Responding to the judge's question, Grinolds said the temperature was below freezing, in the teens. Grinolds claimed protesters were aggressively assaulting officers.

Lederman said Stutsman County Sheriff Chad Kaiser was on the scene and authorized the use of water sprayed on water protectors.

The attorney for law enforcement described the munitions fired by law enforcement that night as "less lethal." One of the federal judges told him that "less lethal" is jargon and asked what he meant.

Grinolds responded that it includes impact munitions, bean bags, sponge rounds, batons, impact rounds, CS gas (tear gas), OC spray (pepper spray) and mace.

Grinolds said law enforcement denies the claim that water is considered a less lethal weapon.

Water protectors brought this action against Morton County, North Dakota and their Sheriff's Department; Stutsman County, North Dakota and their Sheriff's Department; and the City of Mandan, North Dakota. They also included 100 unnamed individual law enforcement officers as defendants.

The arguments today centered on the Fourth Amendment and search and seizure. The Constitution, through the Fourth Amendment, protects people from unreasonable searches and seizures by the government. The Fourth Amendment, however, is not a guarantee against all searches and seizures, but only those that are deemed unreasonable under the law.

Michael Avery, on behalf of the National Police Accountability Project, joined Lederman to argue the case today. A favorable ruling means the case could proceed to trial. The Eighth Circuit took the case under advisement and will issue its ruling in the future.

The federal judges presiding in the appeals court panel were Judges Steven Colloton, Duane Benton and Steven Grasz — two George W. Bush appointees and a Donald Trump appointee.

"On the night of November 20-21, 2016, law enforcement shot unarmed, nonviolent water protectors with impact munitions, flash-bang explosives, and freezing blasts of water over the course of ten hours, seriously injuring Appellants and many others," states the federal class-action, civil rights lawsuit Dundon v Kirchmeier.

The National Congress of American Indians, in its amicus, friends of the court brief, said, "This movement was a peaceful protest involving nearly all of Indian country. This was not a radical protest of a fringe group."

Also see:

Courthouse News: Injured Standing Rock Protesters Press 8th Circuit to Revive the Suit 

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."
Photo enlarged of Stephanie Keith/Reuters Standing Rock

Photo detail of Stephanie Keith/Reuter photo Standing Rock

Case Summary

This is a putative class action about excessive police force used to disperse protestors of the Dakota Access Pipeline (DAPL). On November 20, 2016, the plaintiffs– Native Americans and other concerned citizens who referred to themselves as "water protectors"--gathered to pray and protest the DAPL at Backwater Bridge in North Dakota. They were met by local police forces who were armed with specialty impact munitions, teargas, and water cannons. Without warning, the police began to use force to disperse the crowd, injuring over 200 demonstrators in the process. Police also arrested approximately 100 people who were peacefully protesting or were engaged in prayer ceremonies.

The plaintiffs filed their complaint in the United States District Court for the District of North Dakota on November 28, 2016. The plaintiffs sought to represent a class of similarly situated protestors, but class certification was never granted. The case was initially assigned to Chief Judge Daniel L. Hovland. The plaintiffs brought this action against Morton County, North Dakota and their Sheriff's Department; Stutsman County, North Dakota and their Sheriff's Department; and the City of Mandan, North Dakota. They also included 100 unnamed individual law enforcement officers as defendants.

The plaintiffs sought damages and injunctive relief under 42 U.S.C. §1981 and §1983. The plaintiffs asserted violations of the First, Fourth, and Fourteenth Amendments in the form of retaliation for constitutionally protected activities, unreasonable use of force, unconstitutional policing policies by the defendant agencies, and unequal protection under the law. They also included state law claims for assault and battery as well as negligence by the defendants against all members of the class.The plaintiffs sought declaratory and injunctive relief declaring the defendants’ actions unlawful and enjoining them from using the same methods of crowd dispersal in the future. The case was assigned to Judge Daniel L. Hovland.

The same day the lawsuit began, the plaintiffs filed a motion for a temporary restraining order and preliminary injunctive relief. The plaintiffs requested an order prohibiting the defendants from using excessive force in responding to the pipeline protests and prohibiting the use of specialty impact munitions, explosive grenades, chemical agents, sound cannons, directed energy devices, and water cannons or hoses, as a means of crowd dispersal. The court denied the plaintiffs’ motion for a temporary restraining order on December 1, 2016, and denied their motion for a preliminary injunction approximately three months later. Judge Hovland denied both motions because the plaintiffs failed to certify in writing that they had made efforts to notify the defendants as required by FRCP 65(B)(1)(b).

On February 22, 2017, the court stayed proceedings as the plaintiffs filed an interlocutory appeal to the U.S. Court of Appeals for the Eighth Circuit regarding the district court’s denial of a preliminary injunction. That stay was lifted on January 10, 2018, after the Eighth Circuit affirmed the district court’s denial in a cursory per curiam opinion. 701 Fed.Appx. 538. The court found that there was not an abuse of discretion by Judge Hovland and agreed with his finding.

On February 27, 2018, the plaintiffs filed an amended complaint containing information about government actions relating to the DAPL subsequent to their initial filing. The plaintiffs alleged that approximately three months after the first complaint, the defendants again engaged with protestors and injured them with water cannons and specialty impact munitions. The first amended complaint also included the addition of state law claims against the defendants for assault and battery and negligence.

The defendants initially filed a motion to dismiss on April 6, 2018. Two years later, this case was reassigned to Judge Daniel Traynor, who converted the defendant’s motion to one for summary judgment on September 10, 2020 in order to allow time for discovery. The defendants then filed an interlocutory appeal to the Eighth Circuit, arguing that the district court erred by refusing to rule on whether the officials were protected by qualified immunity. That appeal was dismissed by the Eighth Circuit for lack of jurisdiction. 2020 WL 9211289.

On December 29, 2021, Judge Traynor granted the defendants’ motion for summary judgment. Regarding the plaintiffs’ Fourth Amendment claim, the court found that no seizure occurred because the plaintiffs were free to leave and were not being herded in any particular direction. In the alternative, the court also held that the officers would have been protected by qualified immunity. The court also found the plaintiffs’ excessive force and state law claims to be without merit, as the officers’ actions were objectively reasonable; again the court concluded in the alternative that the officers would have been shielded by qualified immunity. Finally, because the court found that the officers did not act because of any of the plaintiffs’ political or religious beliefs, it concluded that the plaintiffs’ remaining Equal Protection Clause and First Amendment claims were without merit. 577 F.Supp.3d 1007.

On January 28, 2022, the plaintiffs filed an appeal with the Eighth Circuit. On July 11, 2022, the case was screened and selected for oral argument. 

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