Court Update: More Dismissals for Water Protectors

Court Update: November 14, 2017

Three Water Protectors arrested on October 10, 2016 appeared in Morton County Criminal Court before Judge Haskell yesterday, November 13th, for a hearing on their attorneys’ motions to dismiss for want of probable cause. They were arrested while praying on an unmarked construction site, on a federal holiday during which no construction was occurring, no workers were present, and no landowner objected to their presence.

Two identical cases were dismissed by Judge Haskell on October 17, 2017 after a finding that the State’s Attorney could not prove the existence of a valid government function with which the Water Protectors could have been interfering at the time of their arrest. After brief arguments, consistent with his previous ruling, Judge Haskell dismissed the three cases yesterday finding that since he could not find a valid government function with which they had interfered, their arrests were without probable cause.

Police are forbidden by the Fourth Amendment from entering onto private land without an independent basis for doing so. This independent basis may be their reasonable belief that a criminal offense is occurring. In these cases, the state first charged the Water Protectors with Trespass and Riot, but dismissed those charges, and re-charged then with physical obstruction of a government function. The government function they claim was obstructed was their clearing of people from the work-site. They argued that the Water Protectors were trespassing, and needed to be removed from the land, but there was no clear no trespass posting, no fencing clearly intended to exclude people from the land, and no explicit request of the landowner that police remove people.

“I crossed a fence line while hunting last weekend,” Judge Haskell said. “Does that give the police the right to arrest me?”

Three cases stemming from the same set of facts remain scheduled for trial. At this time the office of the State’s Attorney does appear to be pursuing them.