United States District Court, D. South Dakota, Western Division
DAKOTA RURAL ACTION; DALLAS GOLDTOOTH; INDIGENOUS ENVIRONMENTAL NETWORK; NDN COLLECTIVE; SIERRA CLUB; and NICHOLAS TILSEN; Plaintiffs,
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.
LAWRENCE L. PIERSOL UNITED STATES DISTRICT JUDGE.
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
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
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.
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.
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.").
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
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.
the Court concludes in this case that the general enforcement
powers of the South Dakota Attorney General and
Governor meet the causation and redressability
requirements, and Plaintiffs have standing to assert their
claims for injunctive relief against Governor Noem and
Attorney General Ravnsborg.
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
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.
are criminal statutes in South Dakota defining and punishing
anyone convicted of rioting. South Dakota law specifies four
§ 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,
§ 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.
§ 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
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.
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.
determining the standard of review the Phelps-Roper
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.
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.
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.
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)).
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.
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.
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
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),
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.
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."
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 ...