Indigenous Peoples and Human Rights

November 8, 2023

Standing Rock -- Federal Appeals Court Rules in Favor of Violent Cops at Backwater Bridge

Backwater Bridge, Standing Rock, North Dakota, Nov. 20, 2023. Photo Stephanie Keith/Reuters.

Standing Rock -- Federal Appeals Court Rules in Favor of Violent Cops at Backwater Bridge

By Brenda Norrell, Censored News, November 8, 2023

A federal appeals court ruled in favor of law enforcement who fired rubber bullets, bean bags and projectiles at Standing Rock water protectors, and blasted them with water hoses in freezing temperatures, at Backwater Bridge on November 20, 2016.

Water protectors suffered critical injuries while seeking to halt the Dakota Access Pipeline in North Dakota. However, the federal appeals court ruled against them in the class action, civil rights lawsuit that revealed excessive force by law enforcement.

The Eight Circuit Court of Appeals ruled in favor of North Dakota law enforcement -- Morton County Sheriff Kyle Kirchmeier and Morton County; City of Mandan and Police Chief Jason Ziegler; Stutsman County and Sheriff Chad Kaiser.

The federal appeals court upheld the lower district court's ruling and affirmed the dismissal of the case on Friday. The court stated that it was not clearly established that law enforcement’s use of force violated the water protectors' constitutional rights. The court said that there was insufficient evidence of deliberate indifference by the supervisors named in the case.

Dr. Michelle Cook, Dine' director of Divest, Invest, Protect, said, "We are not defeated. Our victory is our continued fight for liberation, land, love, water joy, and peace.”

“I know that there are many people now who are processing the Dundon case and the emotions in their bodies, minds and spirits. It is natural to feel pain and grief when there is injustice. We can breathe through that."

"Know we will continue to stand with Indigenous human rights defenders and all those who fight for land and water. We ask for the world and the people to continue to pray for our relatives who were injured and who carry both invisible and visible wounds as a result."

Dr. Cook led Native women's delegations of water protectors from Standing Rock to Europe and the United Nations. Dr. Cook organized and led the delegation of Native women who testified on the militarization of law enforcement at Standing Rock and the Tohono O'odham border before the Inter-American Commission on Human Rights in Jamaica.

"We continue to ask for direct support for the Indigenous human rights defenders who are fighting court cases against all odds for our people for our dignity, and for the future of our world. We fight for what is right, and just no matter the odds. We fight for our people, no matter how hard the road until the last second, until the last breath," Dr. Cook said.

Rachel Lederman, lead counsel for water protectors, told the Eighth Circuit Appeals Court's during oral arguments in September that the district court decision in favor of law enforcement is 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."

The National Congress of American Indians entered a friends of the court, amicus brief, in support of the water protectors in the case.

The discovery process in the case was not yet complete. Attorneys for water protectors sought to identify more than 100 officers who fired on them.

Water protectors filing the class action, civil rights lawsuit, are Vanessa Dundon; Crystal Wilson; David Demo; Guy Dullknife, III; Mariah Marie Bruce; Frank Finan, on behalf of themselves and all similarly situated persons.

Federal Appeals Court Ruling November 3, 2023

The Eighth Circuit Court of Appeals wrote this summary of its decision on November 3, 2023. The case is Vanessa Dundon v. Kyle Kirchmeier U.S. Court of Appeals Case No: 22-1246 U.S. District Court for the District of North Dakota - Western [PUBLISHED] [Colloton, Author, with Wollman and Benton, Circuit Judges]

Civil case - Civil rights. In an action claiming defendants violated plaintiffs' civil rights by their use of force (fire hoses, tear gas, rubber bullets, and bean bags) to disperse a protest against the Dakota Access Pipeline at the Backwater Bridge in Morton County, North Dakota, the district court granted defendants summary judgment, and plaintiffs appeal seeking reinstatement of their Section 1983 claims against the individual officers for using excess force, their claims against the municipalities alleging unconstitutional policies, and their claim against three defendants for supervisory liability.

Held: (1) even assuming plaintiffs could proceed against the unnamed police officers (Does 1-100), the protestors have not shown that it was clearly established on the date of the incident that use of force to disperse a crowd constituted a seizure; the plaintiffs have not established a clearly established right under the Fourth Amendment, and the district court properly dismissed their claims against the officers under the Fourth and Fourteenth Amendments;

(2) the municipalities were entitled to summary judgment under Monell v. Department of Social Services, 436 U.S. 658 (1978); as it was not clearly established that the officers' use of force to disperse protestors violated a constitutional right under the Fourth Amendment, and the need for training and supervision on dispersal of protestors was not so obvious that it can be characterized as deliberate indifference to the protestors' rights to be free from unreasonable seizures;

(3) with respect to the claims against the supervisor defendants, there was insufficient evidence here of deliberate indifference by supervisors where the alleged constitutional right was not clearly established.

The 8th Circuit Court's full ruling is at

Copyright Brenda Norrell, Censored News. May not be used without written permission.

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