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Erickson v. Earley

Supreme Court of South Dakota

April 20, 2016

TYLER NEIL ERICKSON, Petitioner,
v.
AUSTIN RICHARD EARLEY, Respondent and Appellant

         Considered on Briefs March 21, 2016.

          APPEAL FROM THE CIRCUIT COURT OF THE THIRD JUDICIAL CIRCUIT BROOKINGS COUNTY, SOUTH DAKOTA. THE HONORABLE VINCENT A. FOLEY, Judge.

         TYLER NEIL ERICKSON, Pro se, petitioner.

         For REED T. MAHLKE, Helsper, McCarty, Mahlke & Kleinjan, P.C., Brookings, South Dakota, Attorneys for respondent and appellant.

         WILBUR, Justice. GILBERTSON, Chief Justice, and ZINTER, SEVERSON, and KERN, Justices, concur.

          OPINION

         WILBUR, Justice

          [¶1] Austin Earley appeals from a circuit court order granting Tyler Erickson a permanent order of protection. Earley contends that the circuit court abused its discretion by granting the protection order and that the protection order violates his First Amendment right to free speech. We affirm.

         Facts and Procedural History

          [¶2] Earley and Erickson are both hunters. The dispute between the two, which ultimately resulted in this protection order, is primarily over hunting land. Both men are in their mid-thirties.

          [¶3] Erickson secured permission from Jim and David Grommersch to hunt on their property. In February of 2015, Erickson went to the Grommersches' property to check one of his trail cameras. On his way to the property, Erickson observed Earley's vehicle traveling in the opposite direction. When Erickson arrived on the property he parked his vehicle, but before he got out, he saw Earley's vehicle approaching him through a field at a high rate of speed. Earley pulled alongside of Erickson's vehicle and began shouting obscenities at Erickson. Among other things, Earley told Erickson, " We are coming for you. You don't have permission to be on this property." Earley eventually told Erickson to " get all your shit and get out." Erickson was afraid to get out of his vehicle. However, when Earley backed his vehicle away approximately 50 yards, Erickson exited his vehicle and removed his trail camera. Earley watched from his vehicle. Earley followed Erickson to his second trail camera and watched as Erickson removed the second trail camera. Earley followed Erickson off the Grommersches' property for a little over one mile and then turned around.

          [¶4] Immediately following the incident, Erickson contacted the Grommersches. The Grommersches told Erickson that they did not know Earley and that Earley did not have permission to be on the Grommersches' land. At the Grommersches' request, Erickson contacted law enforcement about the incident.

          [¶5] A similar incident happened in July of 2015. Erickson parked on a public gravel road approximately one mile west of the Grommersches' property " to look over the land" for deer with his binoculars. Once again, Earley pulled alongside of Erickson's vehicle and began yelling obscenities at Erickson. Among other things, Earley told Erickson, " We are coming for you. You better watch your ass this fall. There is [sic] five of us coming for you." Earley " squealed his tires and pulled away, yelling and screaming and cursing." Erickson did not report the incident.

          [¶6] A month later, in August of 2015, the Grommersches directed the sheriff to serve a no trespass order on Earley regarding their land. On the same day he was served, Earley called Erickson and said, " Get your shit out of Gas 'N' Mor, and you have one week and don't ever step foot in there again." [1] Before hanging up the phone, Earley stated, " There are six of us, and we are coming for you." Erickson contacted law enforcement about the three incidents and filed a petition for a protection order.

          [¶7] At the hearing for the protection order, Erickson testified about the three incidents. In addition, Erickson was concerned that Earley had somehow learned of other hunting areas Erickson used and that Earley contacted those landowners and " bad-mouthed" Erickson. David Grommersch testified that he did not know Earley, that Earley did not have permission to hunt on his land, and that he had Earley served with a no trespass order because Earley placed hay bales, mineral blocks, antler traps, and other items on the Grommersches' property. Earley testified on his own behalf. Earley admitted that he told Erickson, on multiple occasions, " [t]here is [sic] four or five of us coming for you," but denied that these were threats. Earley framed the incidents as " two grown men having a politically incorrect debate." The circuit court found Erickson's version of ...


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