ND Pipeline Protesters Ask 8th Circ. To Reject Police Appeal
Law360 (October 22, 2020, 5:33 PM EDT) -- A group of Dakota Access pipeline protesters have said it's too soon for the Eighth Circuit to review a discovery order in a proposed class action alleging law enforcement used excessive force during a protest.
The protesters told the court Wednesday it's inappropriate for law enforcement individuals to ask for an interlocutory appeal when the underlying issue hasn't yet been decided by the lower court. The trial court judge simply declined to decide a motion to dismiss right away and allowed for some discovery, making an appeal premature, they said.
At issue is whether Morton County Sheriff Kyle Kirchmeier and several others can assert qualified immunity from allegations that the officers violated the protesters' constitutional rights by using explosive tear gas grenades, water cannons and other munitions against them.
Law enforcement in 2018 asked the lower court to kill the claims alleging they aren't viable. But the lower court transformed the dismissal bid into a summary judgment motion and decided to rule on the matter later on.
"When a district court defers ruling, but is clear, as it was here, that the district court does intend to rule on a motion asserting an immunity defense, and the court has not unreasonably delayed in doing so, the lack of a ruling is neither an implicit nor effective denial of immunity and the appellate court lacks jurisdiction to consider an interlocutory appeal," the protesters said.
The lower court only allowed for limited discovery "sufficient to resolve the issue of qualified immunity" before deciding the matter, according to the protesters.
The dispute stretches back to a Nov. 20, 2016, incident in which Dakota Access pipeline protesters who had gathered at a bridge north of a large campsite were met with a "joint force of police officers" from the counties and cities, who deployed "an arsenal of dangerous implements and devices" including tear gas, according to the group's complaint. In addition to allegations against law enforcement, Morton County and other local governments are also named as defendants.
The protesters allege that without first giving dispersal orders, law enforcement used force "including soaking them in water despite the subfreezing temperature," according to the complaint that says over 200 people were injured.
The protesters said the appeals court should let the lower court proceed.
"Such discovery does not unfairly strip the law enforcement officers of the benefits of their asserted qualified immunity," the protesters said, asking the Eighth Circuit to throw out the interlocutory appeal.
U.S. District Judge Daniel L. Hovland denied the motion for a temporary restraining order that the group filed shortly after launching the lawsuit, saying they had not met their burden of proof to show police used unnecessary and excessive force that would warrant blocking future use of the tactics they employed that day. The group appealed that decision, but the Eighth Circuit upheld it.
In April 2018, the North Dakota jurisdictions and law officers asked to scrap the protesters' claims altogether. Among other things, they argued that the individual officers are immune.
"Even assuming, arguendo, plaintiffs have sufficiently alleged a violation of their constitutional rights, individual law enforcement officers are entitled to qualified immunity as any right allegedly violated was not so clearly established at the time of the violation that a reasonable officer would have known that his actions were unlawful," the defendants said at the time.
Earlier in October, law enforcement asked for the lower court to halt proceedings while the Eighth Circuit considers the interlocutory appeal. The protesters are fighting that request.
Randall J. Bakke, an attorney with Bakke Grinolds Wiederholt who represents law enforcement, said the 2014 Eighth Circuit case Christopher Payne v. Fred Britten et al. established that officers are due a decision on their qualified immunity claim "at the motion to dismiss stage, prior to discovery, and the court may not defer ruling" in the way the lower court did.
"The plaintiffs' request for dismissal of the individual law enforcement defendants' interlocutory appeal on the issue of qualified immunity on the alleged basis of lack of appellate jurisdiction is contrary to established Eighth Circuit precedent directly on point," Bakke told Law360 in an email Thursday.
Rachel Lederman, who represents the protesters, said her clients are "still suffering from the traumatic effects of the law enforcement violence we are challenging in this case." She added that she appreciated that the case was finally moving forward with limited discovery after a long wait.
"The appeal is frivolous and made purely for delay," Lederman told Law360 in an email.
Lederman added that the governmental defendants, including Morton County, the City of Mandan and Stutsman County, can't call on the qualified immunity doctrine to protect them and that the appeal is specific to law enforcement personnel. The discovery the lower court allowed would be "identical even if the government entities were the only defendants," Lederman said.
"We have to wonder what the defense is so worried will come out if discovery goes forward," Lederman said.
The protesters are represented by Rachel Lederman of Alexsis C. Beach & Rachel Lederman Attorneys, Mara Verheyden-Hilliard of the Partnership for Civil Justice Fund, Natali Segovia of Water Protector Legal Collective, Melinda Power of West Town Law Office and Janine L. Hoft of People's Law Office.
The defendants are represented by Randall J. Bakke and Shawn A. Grinolds of Bakke Grinolds Wiederholt.
The case is Vanessa Dundon et al. v. Kyle Kirchmeier et al., case number 20-3106, in the U.S. Court of Appeals for the Eight Circuit.