Law officers in Morton County on Monday afternoon are set to detonate munitions as part of the evidence-exchanging process in a federal lawsuit filed by a Dakota Access Pipeline protester who claims police targeted her with a concussion grenade.
Attorneys for Sophia Wilansky, of New York, have been jockeying over evidence for months with attorneys for the county and officers who were part of the law enforcement response to the DAPL protests in south central North Dakota in 2016-17.
The two sides agreed during a March 16 conference that Morton County will procure at Wilansky’s expense up to five munitions and deploy them in the presence of an expert hired by Wilansky. The initial date of April 6 was later moved to May 3, according to an order filed by U.S. Magistrate Judge Alice Senechal.
Senechal doesn’t specify what the munitions are, and attorneys for the two sides didn't respond to requests for comment. Earlier court filings by Wilansky’s attorneys sought “fully functional examples of every type of munition, armament, less-lethal weapon, and crowd-control device that Law Enforcement Agents carried or used at or around the Backwater Bridge during the 24 hours surrounding Ms. Wilansky’s injury.” They also sought the remains of any devices that the county alleges protesters used.
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Wilansky was 21 at the time of the November 2016 confrontation that became the emblematic skirmish of the prolonged protest against the pipeline, which opponents fear could pollute the Missouri River but which the developer maintains is safe.
Protesters tried to push past the blocked highway bridge near their main encampment but were turned back by authorities using tear gas, rubber bullets and water sprays. Police say protesters threw objects including rocks, asphalt and water bottles at officers.
Wilansky 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 in her lawsuit filed in U.S. District Court in Bismarck in November 2018 alleging excessive force, assault, negligence, emotional distress and defamation. Federal Judge Daniel Traynor last October dismissed several claims including defamation but allowed numerous others to proceed.
Authorities say protesters’ criminal activity was to blame for Wilansky’s injury, and that officers did not violate her rights.
Plaintiff’s attorney Benjamin Stoll maintains in a document filed in late March that public information officers who relayed information from law enforcement to the news media during the protests learned of the rigged propane tank allegation shortly after Wilansky was injured “and immediately began scheming to leak it to the press before even attempting to fact check it.”
One document he cites is an email from National Guard spokeswoman Maj. Amber Balken inquiring whether the “story” should be given to a well-known North Dakota conservative blogger, adding “This is a must report…”
Then-Highway Patrol spokesman Lt. Tom Iverson responds that he’s preparing to go on a radio talk show, but he adds, “As of now we need to hold off with any release. I need to fact check all of this.”
Stoll says news releases followed less than four hours later.
County attorney Randall Bakke in court documents states that "press releases were supported by information provided by numerous sources," namely law officers.
"All of these officers reported seeing a protester roll metal cylinders toward an unidentified woman standing behind the sole remaining burned out dump truck attached to law enforcement's barricade shortly before an explosion," Bakke wrote. "The officers reported observing protesters thereafter running up to the woman and carrying her away to the south across the Backwater Bridge, and otherwise corroborate the statements contained in the press releases."
Bakke also notes that Traynor last fall dismissed Wilansky's defamation claim.
The lawsuit will linger at least into the summer, according to a briefing schedule in Senechal’s order.
A related aspect of the case involves the imprisonment of a fellow protester who drove Wilansky to meet an ambulance. The Civil Liberties Defense Center credits Steve Martinez with saving her life.
Martinez, 46, is originally from Pueblo, Colorado, but now lives in Bismarck. He was held in contempt and jailed as a federal prisoner twice earlier this year for refusing to provide testimony to a federal grand jury investigating the clash in which Wilansky was injured, according to supporters. He spent more than 60 days in custody before being released April 12. Why he was released isn't clear.
Supporters believe the government is trying to shift the blame for Wilansky’s injuries from law enforcement to protesters. Grand jury proceedings are secret, and the government does not confirm them, much less talk publicly about them.
Martinez's attorney has not discussed the case or responded to requests for comment since late February. Martinez's partner, Leta Killer, who set up a GoFundMe account for his defense, did not respond to a request for comment.
The pipeline has been operating for nearly four years, though American Indian tribes led by the Standing Rock Sioux are still fighting in court to try to get it shut down. Tribes and environmental advocates fear an oil leak would contaminate the Missouri River. Developer Energy Transfer and federal officials who permitted the pipeline maintain that it's safe. The protest over six months in 2016-17 resulted in more than 750 arrests.
