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Judge sides with law enforcement in DAPL protest suit alleging excessive use of force

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Vanessa Dundon is the lead plaintiff in a lawsuit against local law enforcement alleging excessive use of force during a November 2016 confrontation with police amid the Dakota Access Pipeline protests. She is pictured here in October 2016 along state Highway 1806 in Morton County.

A federal judge has sided with local law enforcement in a case brought by Dakota Access Pipeline demonstrators alleging excessive use of force by police at a protest site in November 2016.

Temperatures dropped below freezing the night of Nov. 20 as police and protesters faced off on state Highway 1806 just north of the border of the Standing Rock Sioux Reservation. Officers sprayed protesters with water during the incident.

Attorneys of protesters who brought the suit five years ago say in court documents that police fired rubber bullets and exploding munitions “indiscriminately into the crowd” and also used tear gas. Some of the demonstrators were injured that night.

Lawyers for law enforcement officers named as defendants, including Morton County Sheriff Kyle Kirchmeier, say officers were outnumbered and were concerned for their lives and safety. They sought to have the protesters’ legal claims dismissed.

U.S. District Judge Daniel Traynor issued the order granting their request Wednesday, writing that “the Court finds the undisputed and irrefutable evidence in this case could only lead a reasonable juror to conclude the officers’ conduct in this case was objectively reasonable.”

He called the situation that night “unprecedented.”

“The most telling of the entire situation is the fact that officers issued two code red requests and a Signal 100, requesting the assistance of every available officer in the state,” Traynor wrote. “This has never been done in North Dakota history.”

Morton County Assistant State’s Attorney Gabrielle Goter said in a statement she was pleased with the ruling. Kirchmeier and Mandan Police Chief Jason Ziegler, among others, are named defendants.

“On the dates of this mass protest event, law enforcement reasonably believed the protestors were trespassing and therefore, law enforcement was permitted to use less lethal force to protect themselves and others, from violent protestors that law enforcement perceived as intending to physically injure responding law enforcement,” Goter said.

An attorney for the plaintiffs, Rachel Lederman, said in a statement that the ruling "effectively legitimizes launching an hours-long barrage of freezing water, explosives and highly dangerous munitions into a crowd of demonstrators."

Another of their lawyers, Janine Hoft, said the decision "is an example of how judges use 'qualified immunity' to let law enforcement off the hook for even the most extreme brutality."

Qualified immunity is a doctrine that protects government officials from lawsuits unless they violate a plaintiff's clearly established right.

The lead plaintiff in the case is Vanessa Dundon, a member of the Navajo Nation whose eye was injured the night of the incident.

The plaintiffs alleged in court documents filed earlier this year that officers "used a wildly disproportionate amount of force when they deployed water cannons, impact and explosive munitions at the plaintiffs, who were unarmed, peaceful, and not committing any crime or actively resisting law enforcement in any way."

Traynor in January threw out another lawsuit filed by a pipeline protester claiming that law enforcement used excessive force at a 2017 protest site. The order came weeks after a similar ruling in a case brought by another demonstrator.

A lawsuit filed by protester Sophia Wilansky, of New York, is continuing in federal court. Wilanksy claims police targeted her with a concussion grenade during the Nov. 20, 2016 confrontation. She suffered a left arm injury in an explosion and had multiple surgeries to save the limb.

Protesters allege the blast that injured her was the result of a flash-bang device thrown by officers, while police maintain it was caused by a propane canister that protesters had rigged to explode. Wilansky seeks millions of dollars in damages. Authorities say protesters’ criminal activity was to blame for her injury, and that officers did not violate her rights.

The Dakota Access Pipeline transports oil and was built in 2016 and 2017. Its construction drew thousands of protesters to North Dakota, and hundreds of them were arrested over a six-month period. Standing Rock opposes the pipeline, and a legal battle surrounding the permitting process is ongoing.

Reach Amy R. Sisk at 701-250-8252 or amy.sisk@bismarcktribune.com.

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