Fault Lines
20 August 2017

Reporter Amy Goodman Meets Justice, North Dakota Style

October 18, 2016 (Fault Lines) — While election madness dominates available space in news outlets, the controversial construction of the Dakota Access Pipeline presses on in North Dakota. In case you missed it, the pipeline is a project by a company called Energy Transfer Partners to build a huge oil pipeline to transport “light sweet crude oil” from North Dakota to Illinois, and then onto domestic refineries.

While one might question the necessity of building a brand-new pipeline in the midst of an oil-boom, the pipeline is happening nevertheless.

The pipeline is also being built in an unsurprisingly shitty way. Originally the pipeline was going to pass near Bismarck, but that was scrapped because the danger of an oil spill ruining everyone’s water was a little too large. So, acting like any good cartoon villain, Energy Transfer Partners decided to move the route away from the city and within half of a mile from a Standing Rock Sioux reservation.

The Standing Rock Sioux have been fighting the pipeline in federal court, and have set up a large protest camp near construction site. Sympathetic protesters have also headed out to North Dakota, including Democracy Now! reporter Amy Goodman and actor Shailene Woodley.

Recently, both Goodman and Woodley were arrested and charged with misdemeanor offenses in connection with their proximity and/or involvement in protests.

Goodman claims she was reporting on a protest on September 3rd, where she says she witnessed security guards working for the pipeline construction company pepper spraying and unleashing dogs on peaceful protesters. After she left the state and released a video showing, among other things, protesters being pepper sprayed at the construction site, a criminal complaint was filed, charging her with “criminal trespass and engaging in a riot.”

Woodley was at a protest at a construction site involving about 200 people, when, she says she was arrested while walking back to her vehicle. She claimed to have been singled out from the hundreds of others because she was “well known.” Woodley was also arrested for “criminal trespass and engaging in a riot.”

Public outcry was pretty swift, particularly from Democracy Now! (go figure). The Nation just claimed that Goodman was “facing jail time” for the “crime” of “good, unflinching journalism.”

But North Dakota State Attorney Ladd R. Erickson, who is pursuing the charges, has defended his actions. He has been quoted as saying that that Goodman was “not acting as a journalist” when covering the story. Erickson did drop the trespass charge though, because he accepted that he couldn’t actually prove that Goodman defiantly remained on private property after receiving notice that she had to leave.

Let’s look at the charges. Criminal trespass, as applicable here, requires an individual to enter or remain somewhere without permission, after they have been given notice that they aren’t allowed to be there. N.D.C.C. §§ 12.1-22.03(3),(4). Engaging in a riot means participating in “a public disturbance involving an assemblage of five or more persons which by tumultuous and violent conduct creates grave danger of damage or injury to property or persons or substantially obstructs law enforcement or other government function.” N.D.C.C. § 12.1-25-03. Both of these offenses are class B misdemeanors, which means that they are punishable by up to 30 days in jail. N.D.C.C. § 12.1-32-01(6).

The trespass charges are problematic because notice is an issue. You can’t trespass just by wandering onto someone’s land; you have to intend to defy a lawful order excluding you. That’s why the prosecutor dumped the trespass charge. Who knows if Woodley had been given adequate notice, or can be proved to have been given adequate notice?

That aside, there is nothing inherently wrong with prosecuting someone for trespassing, and the rioting charge seems like an acceptable form of a criminal prohibition. Society doesn’t want people to be able to defiantly go anywhere they want whenever they want, and generally has an interest in keeping groups of people from engaging in “tumultuous and violent conduct.” These are facially apolitical offenses.

So, let’s assume for the sake of argument that the remaining charges are entirely justified as a strict legal matter. (This assumes the alleged facts could be proven. This is by no means a safe assumption, but let’s just perform the thought exercise.) With all due respect to The Nation, the First Amendment does not protect people, even a journalist, from trespassing or rioting. So, potentially, these charges could be legitimate or even justified.

That doesn’t mean these charges should happen.

A prosecutor generally cannot prosecute every possible crime. With the breadth and complexity of criminal statutes crimes are being committed everywhere by almost everyone. This goes double for minor criminal offenses. After all, how many people drive at or under the speed limit 100% of the time?

As a result, prosecutors have to pick and choose who they prosecute and why.

Part of a prosecutor’s job is to promote respect for the law and the appearance of fairness in making these charging decisions. That seems pretty obvious.

But these prosecutions, even if they are technically justified, just stink. Don’t forget, this all began with an oil company moving the pipeline right next to tribal lands so as not to offend the (presumably non-native) residents of Bismarck. Goodman and Woodley were there to show solidarity to the protesters and get attention to the issue.

If Goodman is to be believed, she was reporting on violence against the protesters when she was arrested. Woodley was apparently singled out for prosecution amongst a variety of other protesters because she was famous. Regardless of how one feels about these circumstances, and regardless of whether they were actually breaking the law, this whole thing just looks terribly unfair.

Even if these prosecutions are not politically motivated, they look like they are. At least enough to lend some credence to the protestors’ position. It’s like a master class in how to engineer prosecutions that add credibility to the underlying cause.

These prosecutions are also pointless. These charges are all punishable by a maximum of 30 days in jail. They are akin to loitering or public intoxication. Civil society can survive if they are not enforced in every instance.

Maybe Goodman and Woodley crossed the line. Maybe they committed very minor crimes. That doesn’t mean they should be prosecuted.

Update: And now it seems that the charges against Goodman were not only dumb but unfounded. At an appearance between the time this post was written and the time it published, a judge tossed the riot charge, presumably for lack of evidence. Goodman called it “a great vindication of the First Amendment and of our right to report,” which, as explained, it really wasn’t. Nevertheless, it’s nice to see a judge do some quality judging and an outcome that doesn’t make you sad.

3 Comments on this post.

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  • CLS
    18 October 2016 at 11:24 am - Reply

    Caleb:

    With the charges dismissed, would you concur with Radley Balko’s position that Ladd Erickson should lose his job?

    • Caleb Kruckenberg
      18 October 2016 at 11:33 am - Reply

      He’s hardly the first prosecutor to bring charges that were then summarily dismissed by a judge. I don’t think that is enough, in itself, to say he should resign. There can be a legitimate difference of opinion about whether charges are merited. That being said, I definitely see some troubling behavior and am glad I don’t live in his jurisdiction.

  • Dragoness Eclectic
    18 October 2016 at 12:51 pm - Reply

    I know about this pipeline and the protests because I have a Native American friend who is rather angry about the whole mess. From what she tells me, the present-day bigotry against Native Americans in many parts of the country, including North Dakota, is up there with the Jim Crow South’s treatment of blacks.

    Consider how prosecutors treated civil rights protestors in the Jim Crow South, and you’ll see a parallel.