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Dakota Rural Action v. Inoem

United States District Court, D. South Dakota, Western Division

September 18, 2019

DAKOTA RURAL ACTION; DALLAS GOLDTOOTH; INDIGENOUS ENVIRONMENTAL NETWORK; NDN COLLECTIVE; SIERRA CLUB; and NICHOLAS TILSEN; Plaintiffs,
v.
KRIST INOEM, in her official capacity as Governor of the State of South Dakota; JASON RAVNSBORG, in his official capacity as Attorney General; and KEVIN THOM, in his official capacity as Sheriff of Pennington County, Defendants.

          ORDER

          LAWRENCE L. PIERSOL UNITED STATES DISTRICT JUDGE.

         Plaintiffs have brought suit challenging the constitutionality under the Constitution of the United States of a riot boosting statute passed in 2019 by the South Dakota Legislature, Senate Bill 189, and two felony riot statutes, SDCL§ 22-10-6 and §22-10-6.1. Plaintiffs request injunctive and declaratory relief.

         BACKGROUND

         The riot boosting statute was introduced and passed in the final week of the 2019 legislative session with an emergency clause to make it immediately effective. The publicly made claims by the Governor and others were that the legislation was to address costs of various persons and entities from anticipated rioting as a result of the building of the Keystone XL pipeline through South Dakota. The pipeline is to carry petroleum product from Canada though Montana, North Dakota, and South Dakota to connect with another pipeline in Nebraska which will take product to shipment though the Gulf of Mexico. Extensive protests did occur during Keystone pipeline construction in North Dakota. The project was stayed by a federal court order in Montana, Indigenous Environmental Network v. U.S. Dept. of State, 369 F.Supp.3d 1045 (D. Mont. 2018); see also 317 F.Supp.3d 1118 (2018), 347 F.Supp.3d 561 (2018) (same case). The appeal from that decision was dismissed as moot on June 6, 2019 by the Ninth Circuit Court of Appeals as President Trump had issued a new permit for the construction on March 29, 2019. The new permit is now the subject of litigation requesting an enjoining of the project. A motion to consolidate the two cases is pending in Indigenous Environmental Network v. Trump, etal, Civ4:19-cv-000028 (D.Mont. 2019).

         At the hearing on June 12, 2019, the parties represented that construction is not now under way in South Dakota as the owner has reported that it is too late in the construction season to commence work in South Dakota this year. Pre-construction activities are, however, apparently in progress. Sioux Falls Argus Leader, July 1, 2019, page 2A. Plaintiffs and others claim by affidavit that they do in various ways intend to protest and otherwise provide and seek and provide support, financial and otherwise, for resistance, including protests, to the building of the pipeline in South Dakota. As a result of the threat presented by the riot boosting and criminal riot statutes, the Plaintiffs and others claim these laws have a chilling effect on their free speech and association rights and they are prevented from soliciting support or contributing or otherwise supporting peaceful protest of the construction of the project as they are afraid of criminal prosecution as well as substantial and unwarranted damage awards against them.

         STANDING TO SUE

         Standing issues were not raised by the parties except as to the claims against Kevin Thom in his official capacity as Sheriff of Pennington County. By separate Order, that claim is dismissed for lack of standing. The Court will address that issue as to the remaining parties as it can be raised at any time.

         Governor Noem and Attorney General Ravnsborg do not contest Plaintiffs' standing in this case. The Court will address, however, why standing is appropriate against those defendants because Article III standing to bring a First Amendment free speech challenge is "an inescapable threshold question, " Advantage Media, L.L.C. v. Eden Prairie, 456 F.3d 793, 799 (8th Cir. 2006), and it "requires a showing that each defendant caused [the plaintiffs] injury and that an order of the court against each defendant could redress the injury." Calzone v. Hawley, 866 F.3d 866, 869 (8th Cir. 2017); see Lujan v. Defenders of Wildlife, 504 U.S. 556, 560 (1992) (a plaintiff must establish "a causal connection between the injury and the conduct complained of-the injury has to be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court.").

         In the Order granting Defendant Kevin Thorn's Motion to Dismiss, the Court determined that Plaintiffs have alleged an injury in fact that meets the first requirement of standing. For the following reasons, Plaintiffs also meet the causation and redressability requirements as to Governor Noem and Attorney General Ravnsborg.

         "[W]hen a plaintiff brings apre-enforcement challenge to the constitutionality of a particular statutory provision, the causation element of standing requires the named defendants to possess authority to enforce the complained-of provision." Calzone, 866 F.3d at 869 (citing Dig. Recognition Network, Inc. v. Hutchinson, 803 F.3d 952, 957-58 (8th Cir. 2015)). Whether a defendant possesses enforcement authority sufficient for standing purposes turns on whether he or she has "some connection with the enforcement of [the] state law." Dig. Recognition Network, 803 F.3d at 957 (citation and quotation marks omitted), In Citizens for Equal Protection v. Bruning, 455 F.3d 859 (8th Cir. 2006), the plaintiffs challenged a state constitutional amendment stating that only marriage "between a man and a woman" was valid. The Eighth Circuit concluded that the Nebraska Attorney General's and Governor's broad power to enforce Nebraska's constitution and statutes was a sufficient basis to satisfy causation and redressability elements of standing. Id. at 864. The Eighth Circuit concluded that injunctive relief restraining the Attorney General and the Governor from enforcing the statute would redress at least part of the Plaintiffs' alleged injury. See Id . Thus the "case or controversy requirement of Article EI" was satisfied. Id.

         Similarly, the Court concludes in this case that the general enforcement powers of the South Dakota Attorney General and Governor[1] meet the causation and redressability requirements, and Plaintiffs have standing to assert their claims for injunctive relief against Governor Noem and Attorney General Ravnsborg.

         DISCUSSION

         The 2019 riot boosting statutes are additions to Chapter 20-9 of South Dakota Codified Laws. Chapter 20-9 is entitled "Liability for Torts." Senate Bill 189 is now codified as SDCL § 20-9-53 through SDCL § 20-9-57. These civil law additions borrow heavily from the felony riot statutes in Chapter 22-10, entitled "Riot and Unlawful Assembly."

         For purposes of this analysis, protected speech can be speech and other expressive activity including money or other material contributions as well as statements of support by speech or written word including ads, e-mail, texts and personal participation in protest. A person's support of a cause can be protected speech and also protected by the right of assembly in the First Amendment.

         There are criminal statutes in South Dakota defining and punishing anyone convicted of rioting. South Dakota law specifies four riot felonies.

         SDCL § 22-10-1 defines riot as:

Any use of force or violence or any threat to use force or violence, if accompanied by immediate power of execution, by three or more persons, acting together and without authority of law, is riot. Riot is a Class 4 felony,

         SDCL § 22-10-5 states:

Any person who carries a dangerous weapon while participating in a riot is guilty of aggravated riot. Aggravated riot is a Class 3 felony.

         SDCL § 22-10-6 states:

Any person who participates in any riot and who directs, advises, encourages, or solicits other persons participating in the riot to acts of force or violence is guilty of a Class 2 felony.

         SDCL§ 22-10-6.1 states:

Any person who does not personally participate in any riot but who directs, advises, encourages, or solicits other persons participating in the riot to acts of force or violence is guilty of a Class 5 felony.

         Standard of Review

         Defendants urge an intermediate scrutiny standard of review, relying upon United States v. Daley, 378 F.Supp.3d 539, 553 (W.D. Va. 2019), appeal docketed, United States v. Gillen, No. 19-4553 (4th Cir. Jul. 30, 2019). Plaintiffs claim the standard of review should be strict scrutiny. This Court is guided in part by Phelps-Roper v. Ricketts, 867 F.3d 883 (8th Cir. 2017) (en banc) which applied an intermediate standard of review to Nebraska's Funeral Picketing Law. That law provided for criminal misdemeanor punishment. Phelps-Roper involved a determination of whether the Picketing Law dealt with true threats, which are not constitutionally protected.

         In determining the standard of review the Phelps-Roper court stated:

The constitutionality of a statute regulating the exercise of protected speech in a public forum depends in large part on whether it is content based or content neutral. A statute is content neutral so long as it is justified without reference to the content of regulated speech. Content based regulations, such as those which impose special prohibitions on those speakers who express views on disfavored subjects, are presumptively invalid, are subject to the most exacting scrutiny, and must be narrowly tailored to serve a compelling government interest. In contrast, content neutral time, place, or manner regulations must be narrowly tailored to serve a significant governmental interest and allow for ample alternative channels for communication.

Phelps-Roper, 867 F.3d at 892.

         Both the criminal statutes at issue are on their face content-neutral. Those statutes do not impose special prohibitions on speakers or actors on disfavored subjects, such as peacefully resisting a pipeline.

         The inquiry does not in some instances stop with the determination that the statutes are content-neutral on their face. The Supreme Court recognized in Reed v. Town of Gilbert, Ariz., __ U.S. __, 135 S.Ct. 2218, 2227 (2015):

Our precedents have also recognized a separate and additional category of laws that, though facially content neutral, will be considered content-based regulations of speech: laws that cannot be "'justified without reference to the content of the regulated speech, '" or that were adopted by the government "because of disagreement with the message [the speech] conveys, " Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989). Those laws, like those that are content based on their face, must also satisfy strict scrutiny.

         The felony statutes were enacted years ago and without the same intent as the 2019 riot boosting statutes and are subject to intermediate rather than strict scrutiny. The felony laws do burden speech and other expressive conduct. A statute survives intermediate scrutiny:

if it furthers an important or substantial government interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.

United States v. Dinwiddie, 76 F.3d 913, 923-24 (8th Cir. 1996) (quoting United States v. O'Brien, 391 U.S. 367, 377 (1968)).

         The state has a substantial government interest in criminalizing participation in a riot with acts of force or violence. However, SDCL § 22-10-6 and SDCL § 22-10-6.1 go far beyond that appropriate interest and, as will subsequently be discussed with the same language in the riot boosting statutes, do impinge upon protected speech and other expressive activity as well as the right of association.

         The next inquiry is "if the governmental interest is unrelated to the suppression of free expression." Dinwiddie, 76 F.3d at 923. The governmental interest in criminalizing acts of force or violence in a riot is not related to the suppression of free expression. However, the challenged criminal statutes taken in their entirety meet but, as later discussed, most portions exceed that goal and do then relate to the suppression of free expression.

         Finally is "the incidental restriction on alleged First Amendment freedoms... no greater than is essential to the furtherance of that interest!?]" Dinwiddie, 76 F.3d at 923-24. Taking the challenged felony statutes each as a whole, SDCL § 22-1.0-6 and SDCL § 22-10-6.1 go beyond what is essential to be able to punish by felony conviction those who in a riot commit acts of force or violence.

         As a result of this inquiry, the two criminal statutes taken each as a whole do not pass intermediate scrutiny. Even if these statutes passed intermediate scrutiny, they fail to meet the Brandenburg v. Ohio, 395 U.S. 444 (1969), requirements.

         The felony statutes, SDCL § 22-10-6 and SDCL § 22-10-6.1, taken as a whole regulate and criminalize much beyond the use of force or violence and do in part restrict free speech. As a result, neither of the two felony statutes are narrowly tailored to further the government's interests. The possibility of severability to save a portion of both of those statutes will be discussed later.

         By comparison, the riot boosting statutes are aimed at pipeline protests. SDCL § 20-9-57 provides in part: "There is established in the state treasury the riot boosting recovery fund. Money in the fund may be used to pay any claim for damages arising out of or in connection with a riot or may be transferred to the pipeline engagement activity coordination expenses fund.... All civil recoveries shall be deposited in the fund."

         The reason for the introduction of the riot boosting legislation was also clearly stated by the Defendant Governor:

This package creates a legal avenue, if necessary, to go after out-of-state money funding riots that go beyond expressing a viewpoint but instead aim to slow down the pipeline build. It allows us to follow ...

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