Reflections on ‘Equal Justice Under the Law’ in North Dakota’s DAPL-Related Cases

Remember the security worker who posed as a water protector at the Dakota Access Pipeline (DAPL) protest, the guy with AR-15 assault rifle?

It turns out that Kyle Thompson, 30, was just arrested for domestic violence, carrying a concealed weapon, and possession of marijuana and methamphetamine paraphernalia, according to an article in the Bismarck Tribune. Thompson did three tours of duty in Afghanistan for the Army, and said he suffers from Post Traumatic Stress Disorder (PTSD). His sister had been killed recently in a car accident.

He received what could be called a compassionate sentence. Being compassionate is a good thing. At the same time, it is fair to ask how Thompson’s case compares to some of those involving Native American water protectors and their allies.

Let’s take a closer look.

Domestic Assault While in Possession of Guns and Drug Paraphernalia

The reason Thompson’s assault case drew media attention was because of his earlier stand-off with water protectors at the DAPL protests. According to the Tribune story: Security worker with rifle at DAPL protests arrested for domestic violence:

The Bismarck Police Department reported that officers pulled Thompson’s vehicle over … after multiple witnesses reported he was hitting a 21-year-old woman in the car. Police searched the vehicle and found a handgun tucked between the driver’s seat and the center console, as well as a rifle in the backseat. Police also found a zipper pouch containing syringes, spoons, a grinder and a glass smoking device with residue.

Hypothetical Question: If this were a Native American water protector, what would the sentence be?

The Tribune reported that Thompson plead guilty to the charges. Bismarck Municipal Court Judge William Severin gave him a two-day jail sentence for simple assault. South Central District Judge Bruce Romanick  handled the drugs and firearms charges and gave Thompson a deferred sentence. If Thompson stays clean for a year, the charges are dropped. He was fined $325.

In response to Thompson’s self reported PTSD and past DUIs, Romanick ordered him to get addiction treatment evaluation and contact the Veteran’s Affairs for potential counseling.

Thompson’s Earlier Brush with the Law

Here is follow up on Thompson’s earlier conflict, this one with water protectors, pieced together from differing new accounts here, here, here, and here.

Thompson worked as a security guard for Leighton Security, working the DAPL project. According to his version of events, he had been told to get photos of construction equipment east of the highway. He dressed like a water protector to avoid detection and carried an AR-15 assault rifle in his truck. When protestors saw him, they ran his truck off the road, he said. He fled on foot with his rifle.

It led to a tense standoff between him and water protectors, some of whom had knives. Thompson eventually surrendered his weapon to BIA agents. (Note: law enforcement had advised private security firms to stay away from the conflict area.)

From the water protectors perspective, they saw someone they did not know, dressed like a water protector, carrying an assault rifle. Water protector security was trying to keep firearms out of the camps and protests. A post in ShadowProof quoted Brennon Nastacio, one of the water protectors who confronted Thompson: “My son came to camp with me in August. All I could think about was his and everyone at camp’s safety. That’s why I went towards Kyle when folks called me, even though all I had to defend myself and everyone was a knife.”

Thompson was arrested. Morton County Sheriff’s Office said he was the victim and released him. Nastacio was put on the “Most Wanted” list and charged with terrorism, a Class C Felony. He turned himself in. Here is the warrant against Nastacio and two others.

His trial is set for Oct. 5.

How Were Water Protectors Treated in Court?

Here is a reminder of how law enforcement, the courts, and the North Dakota legislature responded to DAPL-related cases.

The Dickenson Press ran a story Dec. 20 headlined: Two protesters convicted in first pipeline jury trial. It paints a picture of a chaotic legal process. Bottom line: Benjamin Schapiro, 30, of Ohio, and Steven Voliva, 62, of Washington were accused of blocking a highway on Sept. 27 to allow a caravan of protesters to proceed, misdemeanor charges.

Judge Romanick gave them 10-day suspended sentences, and ordered $500 in restitution to law enforcement and $500 in reimbursement to their public defenders, along with mandatory court fees. The total came to $1,285 each.

“You can get a job and pay these costs back,” the judge told the two young men.

On Feb. 2, the Bismarck Tribune ran the story: Jury finds 8 Dakota Access Pipeline protesters guilty, judge levies ‘unconscionable’ fines. This was the second DAPL-related case to go to trial. The Morton County jury found them guilty of disorderly conduct.

None of them will serve jail time, but South Central District Judge Cynthia Feland handed out fines and fees ranging from $1,250 to $1,685 — fines higher than one defense attorney said he’d seen in his 20-year career for a Class B misdemeanor.

Then of course there were criminal charges against a journalist Amy Goodman, seemingly meant to intimidate. Goodman was simply trying to report on the protests. She was charged with “riot” and would have faced prison time if convicted, but a judge rejected the charges, according to The Nation.

And then there are the get-tough laws the North Dakota legislature sought to pass to increase penalties for protestors. The North Dakota Senate passed several such bills, according to a Feb. 19 Telesur article.

The new bills, which sailed through the Republican-controlled Senate Thursday, seek to increase penalties for those accused of inciting riots or participate in ones that include more than 100 people. Inciting riot carries a prison sentence of up to 20 years, while participating in one could land protesters in jail for a year.

Another bill makes it a crime to trespass or protests on “public safety zones” that can be declared as such by the state’s governor. Demonstrators who “pose a threat” to the public and protest in those zones would also face jail time.

And KTLA Channel 5 reported in January that: Proposed North Dakota Law Seeks to Legalize Accidentally Running Over Protesters Who Block Roadways.

Where Does PTSD and Historical Trauma Fit into this Narrative?

As post script, let’s note that Thompson’s PTSD seems to have played a mitigating factor in his trial. And to be clear, I am not complaining about compassion.

Yet the more complex story behind the DAPL narrative is the historical trauma experienced by Native Americans across the country. Historical Trauma could just as easily be called “community-wide PTSD.” It is the result of generations of abuse through broken treaties, land theft, suppression of language, culture and religion, and genocide. The DAPL protest is not just about the pipeline but about standing up to generations of being ignored, lied to and mistreated.

The majority community needs to understand this history. If it did, the response by law enforcement and the courts would be very different.

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