Cody Hall

Cody Charles Hall, 39, Eagle Butte, S.D., pleaded not guilty on Monday at the Morton County Courthouse in Mandan to two misdemeanor counts of trespassing during a Sept. 3 protest at the Dakota Access Pipeline construction site north of Cannon Ball. 

A woman accused of firing a handgun at police officers as protesters were evicted from private property Thursday was charged with attempted murder.

Red Fawn Fallis faces the most serious charge of any Dakota Access Pipeline protester arrested so far. She faces a maximum of 20 years in prison and is being held on $100,000 cash bond set Monday.

The 37-year-old woman from Denver is one of at least 137 people facing felony charges from Thursday's events. Protesters started fires and threw objects at police, who used pepper spray and bean bag guns in a push to remove people from a northern camp established by protesters. The camp was on property recently purchased by Dakota Access LLC -- land the protesters claimed was theirs by treaty.

Fallis is accused of firing a gun while being arrested for "being an instigator and acting disorderly" at the protest, according to an affidavit filed in her case. One shot allegedly struck the ground near a deputy. She is also charged with preventing arrest, carrying a concealed weapon and possessing marijuana.

According to the affidavit, she told law enforcement that she was trying to pull the gun out of her pocket and it went off when deputies jumped her. She also reportedly said they were lucky she didn't shoot them all.

Morton County State's Attorney Allen Koppy said in court Monday that he believed the officers were the intended victims, but added that bystanders were put at risk, too.

Fallis, who has been arrested twice before on misdemeanors during the protests, said in court that she understood the seriousness of the charges, but asked for a surety bond because she has legal and family support. Judge Bruce Romanick rejected her request because a firearm was involved.

Weekend court

Most of the 141 people arrested on Thursday were charged with one felony and two misdemeanors each. The most serious charge is the Class C felony of endangering by fire or explosion, which carries a maximum penalty of five years in prison and a fine of $10,000. The misdemeanor charges were maintaining a public nuisance and engaging in a riot.

"Endangering by fire or explosion" means intentionally starting or maintaining a fire or causing an explosion, thereby recklessly placing people or inhabited buildings in danger or causing more than $2,000 damage, according to the North Dakota Century Code.

As the charges were all filed with citations, much like traffic tickets, the exact factual bases for them are not clear. A Tribune reporter on scene noted that some of the people arrested were not directly involved in starting fires.

"There were little old ladies from Pennsylvania sitting in a prayer circle who are charged with endangering by fire," said Bill Tilton, a Minnesota attorney who recently obtained a temporary North Dakota license so he could help defend the protesters.

Koppy declined to comment on the basis for the felony charges, saying he did not want to make out-of-court remarks.

Bismarck-based criminal defense attorney Erica Shively, who is representing several protesters, said it is "rare" to see felony charges filed with only a citation. Normally, there is a detailed affidavit outlining the allegations. She said she was only familiar with the practice in traffic cases when drugs were found.

The protesters made court appearances Saturday in Burleigh and Morton counties -- many by videoconference, as they were housed in jails across the state, said Tilton, who represented many of them.

He said everyone he represented was assigned a $1,500 bond, and most are required to come back Dec. 5 for a preliminary hearing. At a felony preliminary hearing, a person can enter a plea of guilty or not guilty.

Providing representation

As the number of people arrested at pipeline protests continues to climb — spiking after Thursday's standoff — public defenders and private attorneys from across the region have joined to represent them.

More than 20 court-appointed lawyers and a dozen private attorneys — many working pro bono — are defending the 400-plus people who have been charged with unlawful activity since the protests began.

In many cases, they are collaborating with lawyers from across the region, holding meetings and calls to discuss strategies and legal issues surrounding the arrests and charges, said Bismarck-based lawyer Jackie Stebbins, who represented former Red Warrior Camp spokesman Cody Hall.

Stebbins, who hosted one of the meetings of defense attorneys in mid-October, said the group is concerned about overcharging by the prosecutors, the rights to assembly, and the rioting charges filed against a reporter.

"I think criminal defense attorneys are a huge part of the checks and balances," she said last month.

Though the attorneys are hesitant to discuss strategy in their cases, Stebbins noted the combination of defendants who believe in what they're doing and lawyers who believe their clients are wrongfully charged may be a recipe for a number of jury trials.

"It’s not just a handful of city charge B misdemeanors. This is very different," she said.

But more than simply interesting legal issues, the cases have struck a chord for some defense attorneys involved.

"I think I’ve been called to make sure the government doesn’t overstep its bounds and doesn’t take advantage of people that don’t have the information, are maybe poor, maybe transplanted here from other states," Shively said.

Connections to particular protesters or a simple desire to help has drawn lawyers from across the country, said Bruce Ellison, a Rapid City, S.D., attorney involved in coordinating counsel through the National Lawyers Guild.

Lawyers working through the organization are assisting local attorneys both formally and informally. Many wearing green hats are working as legal observers, providing advice to protesters about civil disobedience and what to do if they get arrested.

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"Hopefully, together we can provide at least one effective assistance of counsel," Ellison said.

Others, such as Tilton, have secured temporary licenses to work in North Dakota. Tilton, who defended people charged at Wounded Knee in the 1970s, said he came to the state to assist an acquaintance who was arrested, but he also feels strongly about the cause.

"I defend the people who are righteously protecting their environment," he said. "I'm an old lefty lawyer and proud of it."

Ellison said one of his goals is to provide some help to the public defenders, who are taking on a significant number of cases.

Public defenders have been assigned to 105 cases so far, with more to come in the wake of Thursday's events, according to Jean Delaney, executive director for the Commission on Indigent Defense.

"It's definitely felt," Delaney said.

Public defenders in the district are usually assigned 346 cases in a month.

So far, the office has used the four full-time public defenders in the Bismarck-Mandan area; 14 people who work on monthly contracts; and public defenders from Dickinson, Minot, Fargo, Grand Forks and Watford City.

Delaney said she will soon need to start hiring extra "conflict" attorneys to work on an hourly basis, and she believes she'll have to request additional funding.

"We have no choice if someone is found eligible (for a public defender). We need to find an attorney," she said.

Public defenders are available to anyone earning less than 125 percent of the federal poverty guideline, with assets totaling less than $20,000.

As for law enforcement, the Morton County state's attorney's office has recruited the help of McLean County State's Attorney Ladd Erickson to file cases. The Morton County Sheriff's Department also has enlisted aid from law enforcement agencies across the state and the country.

Until Thursday, the vast majority of protesters had been charged with misdemeanors such as disorderly conduct, criminal trespass and engaging in a riot. A few accused of locking themselves to construction equipment were charged with felonies.

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Reach Caroline Grueskin at 701-250-8225 or at caroline.grueskin@bismarcktribune.com