- The Washington Times - Tuesday, February 7, 2017

A federal judge denied Tuesday a motion by Dakota Access pipeline protesters to stop law enforcement from using “excessive force,” ruling that officers acted reasonably when they used water hoses and other methods against fire-starting, rock-throwing rioters.

U.S. District Court Chief Judge Daniel L. Hovland said that officers were outnumbered when they deployed hoses and other non-lethal means against a crowd of 1,000 protesters trying to remove a police barricade on the fire-damaged Backwater Bridge during the Nov. 20-21 melee.

Nine activists had sought a temporary injunction against the Morton County Sheriff’s Department to stop officers in the future from using items such as “water cannons,” tear gas, concussion grenades, or “flash-bangs,” rubber bullets and “excessive force.”

The judge said videos from the night showed “a very chaotic scenario” that included brush fires set nearby, but that protesters had been warned repeatedly to leave the bridge and they were free to retreat at any time.

“The Court is fully aware of the indiscriminate use of water and other forms of non-lethal force that were used that evening in the midst of the darkened chaos,” Judge Hovland said. “The Court is also cognizant that it is sometimes difficult for a law enforcement officer to determine how the doctrine of excessive force will apply to the particular factual situation the officer is confronted with.”

The judge also said it was “undisputed that protesters were yelling profanities and throwing and slinging large rocks, lug nuts, padlocks, frozen water bottles, and other objects at law enforcement officers.”

“The record reveals law enforcement officers feared for their physical safety due to the imminent threats of serious bodily injury or death they were encountering,” he said in his 35-page ruling.

The decision comes as a setback for pipeline protesters who have accused law enforcement of interfering with their First Amendment rights by brutalizing activists with “militarized” tactics and unreasonable displays of force.

The judge rejected the contention that activists occupying camps since August on federal property near Cannon Ball, North Dakota, have been “peaceful and prayerful.”

“[T]he majority of the protesters are non-violent,” he said. “However, it is clear and undisputed there are a sizeable minority of protesters who can best be categorized as a group of unlawful and violent agitators who are masked up; terrorize law enforcement officers with taunting, threats and acts of violence; and whose primary purpose is to simply create chaos and mayhem. To describe these agitators as ‘peaceful and prayerful’ defies common sense.”

Phillip Weeks, who attended the Backwater Bridge demonstration as a “legal observer,” said in the initial filing that there was ample distance between the police line and protesters, and that, “From what I could see they were only engaged in peaceful protest, song or prayer.”

“At 6:36 a.m., I recorded the sound of law enforcement using the water cannons to soak the protesters. The force of the water cannons was enough to knock some of the protesters off their feet,” Mr. Weeks said.

The protest, which has so far cost the state about $22 million, has drawn thousands in and out of the camps near the Standing Rock Sioux reservation. The tribe has led the calls to block the pipeline from its intended route under Lake Oahe, citing fears about water quality.

For the last two months, however, tribal chairman Dave Archambault II has called for protesters to leave the area, citing the environmental damage to the prairie, which is now undergoing a massive cleanup effort led by the tribe.

The judge scolded activists for illegally blocking roads, bridges and intersections for months with impromptu protests against the 1,172-mile, four-state pipeline, which is more than 90 percent complete.

“As previously noted, the right of free speech and assembly do not mean, and have never meant, that everyone who chooses to protest against the Dakota Access pipeline may do so at any time, any place, and under any set of conditions they choose in total disregard of the law,” Judge Hovland said.

“To allow that to occur would result in anarchy and an end to the rule of law in civilized society,” he said.

• Valerie Richardson can be reached at vrichardson@washingtontimes.com.

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