A Dakota Access Pipeline protester accused of endangering a police plane with his drone was found innocent of all charges on Thursday.
At the conclusion of a one-day bench trial, Judge Allan Schmalenberger determined that Aaron Shawn Turgeon, also known as Prolific the Rapper, did not put the pilot of the surveillance plane or the protesters below at substantial risk of bodily injury under circumstances manifesting extreme indifference to the value of human life.
Citing footage shown at trial from cell phones and Turgeon's own drone, Schmalenberger said that the defendant actually flew his drone in a "methodical manner."
"The defendant did not fly the drone at the plane. He did not fly the drone in a reckless manner over either the people or at the plane," the judge said.
Turgeon, 32, said after court that he was grateful to the judge for his fairness and honesty.
"It's a call for other judges here in Morton County to understand that there might be things happening that you're not seeing," he said. "In my case, they tried to take my drone. If they would have taken my drone, I would not have video evidence that showed I never flew toward that plane."
Turgeon was charged with felony and misdemeanor reckless endangerment and physical obstruction of a government function. Morton County Assistant State's Attorneys Gabrielle Goter and Brian Grosinger argued that Turgeon endangered the pilot and crowd of people protesting at a construction site on Morton County Road 135 by flying his drone on Sep. 6. They also alleged he did not cooperate with law enforcement.
North Dakota Highway Patrol Sgt. Shannon Henke testified that the drone could have fallen from the sky and injured a protester. He also said he saw Turgeon's drone shoot up around the same time a fixed-wing aircraft flown by a highway patrolman came into view. Concerned that the drone could crash into the plane, he walked from the road into the main protest area to tell Turgeon to take down the 3-pound Phantom 4 drone.
"I was concerned there could be a mid-air collision," Henke said. He said that a pilot several years ago was injured when a duck flew through the window.
He approached Turgeon, who pulled down the drone, and then Henke tried to seize the drone as evidence. He told Turgeon that regulations do not permit him to fly the drone under 500 feet over a crowd, cell phone footage provided by the defense showed. Henke later conceded he was wrong, and that is not the rule. In fact, the federal rule is that drone pilots cannot fly over crowds, but any violation of Federal Aviation Administration rules was not charged.
After a brief tug-of-war, Henke left the drone with Turgeon and told him he wanted to talk to him at the road.
The Rapid City man was not arrested on scene, but rather charged more than a month later. The charges and report were submitted to the FAA in support of a request for a no-fly zone over Cannon Ball, which took effect shortly after.
Turgeon, who was represented by Erica Shively and Doug Parr, testified that he was flying the drone to film the protest. He said he was conscious of the plane's position and made sure to stay out of its way. He only elevated the drone once he saw the plane was turning away, he testified. Protesters held up their fists when the drone went by, indicating they wanted to be filmed, he said.
Turgeon testified that the drone always stayed under 400 feet, which is the default setting on the device. The plane stayed above 500 feet, according to pilot and Trooper Dennis Gallagher.
The defendant was also charged with not obeying law enforcement. But cell phone video indicated Henke never gave a direct order for Turgeon to meet him at the road or provide registration. He asked for Turgeon's name at the road, which he did not give.
The judge determined the defendant was cooperative by meeting the trooper at the road and was not required to give his name or the drone, as he was not under arrest.
Myron Dewey, who frequently flew a drone for his page Digital Smoke Signals and attended the trial, said filming with drones was a valuable tool during the demonstrations, allowing the activists to record their own protests, as well as the movements and responses of law enforcement.
"Drones leveled the playing field," he said.
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