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Judge dismisses DAPL lawsuit that claimed excessive force, civil rights violations

Judge dismisses DAPL lawsuit that claimed excessive force, civil rights violations

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A federal judge has thrown out the lawsuit of an Arizona man who claimed North Dakota law enforcement officers injured him and violated his civil rights during the Dakota Access Pipeline protests.

Marcus Mitchell, 24, placed himself where he knew less-than-lethal weapons were being used and failed to show that law enforcement officers treated him any differently than anyone else at the protests, U.S. District Judge Daniel Traynor said in a Dec. 10 order.

Mitchell filed the lawsuit in July. He claimed he was subjected to “excessive violence” by officers who fired beanbag rounds in January 2017 at unarmed protesters, including himself. One round struck him in the left eye, resulting in long-term vision, hearing and smell problems and chronic pain, he alleged. He sought unspecified money damages.

Mitchell was backed by the Chicago-based MacArthur Justice Center, which uses the courts to advocate for human rights and social justice. The center did not respond to email requests for comment.

Mitchell was arrested and charged with criminal trespass and obstruction of a government function. The charges eventually were dismissed; the terms of the dismissal have not been publicly disclosed.

A claim by Mitchell, a Navajo tribal member, that he was targeted because of his race was “wholly insufficient,” Traynor said, adding that Mitchell “failed to provide even a scintilla of evidence” that there was a conspiracy to violate his civil rights.

The lawsuit named Morton County Sheriff Kyle Kirchmeier, Deputy Morton County Sheriff George Piehl, Morton County, the city of Bismarck, Bismarck Police Officer Tyler Welk, North Dakota Highway Patrol Sgt. Benjamin Kennelly and two others listed as John Does 1 and 2.

Officers had to make split-second decisions during the protests, which involved “unlawful -- and sometimes violent -- protester activities,” Kirchmeier said Monday in a statement to the Tribune. Officers were expected to use “only that degree of force which is reasonable” under the circumstances, the sheriff said.

“The Court acknowledged law enforcement officers may lawfully use less-lethal munitions to control crowds when they are unlawfully in areas they are commanded to leave,” Kirchmeier said.

At least two other lawsuits alleging excessive force on the part of law officers during the DAPL protests are ongoing.

Nine protesters who sued in November 2016 allege violations of their civil rights due to officers’ tactics including the use of tear gas and water sprays.

Oklahoma resident Eric Poemoceah sued last April, claiming he was physically assaulted by officers in February 2017 and suffered numerous injuries including a broken hip.

Both lawsuits seek unspecified money damages.

Law enforcement has denied using excessive force against the thousands of pipeline opponents who camped near the Standing Rock Sioux Reservation in 2016 and 2017 to protest construction of the $3.8 billion project built by Texas-based Energy Transfer to move North Dakota oil to Illinois. Authorities allege some protesters used violent and illegal tactics and assaulted officers. The protests resulted in 761 arrests over a six-month span.

Reach Travis Svihovec at 701-250-8260 or Travis.Svihovec@bismarcktribune.com

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