Water protector Marcus Mitchell won a victory in the Eighth District Court of Appeals today; the ruling reversed a lower court decision that dismissed his excessive force claims.
Mitchell’s lawsuit now goes back to lower court for further deliberations.
Morton County Sheriff’s deputies shot Mitchell with lead-filled bean bags while he peacefully protested the Dakota Access Pipeline (DAPL) in 2017. One of those bean bags hit him in the head, shattering his eye socket. (Photo here.) Mitchell lost sight in his left eye, and has partial hearing loss in his left ear, an article in The Guardian said.
The decision is powerful in how it paints a clear picture of Morton County’s excessive use of force against many water protectors.
Mitchell, who is Diné, filed suit under a federal law that allows people to sue governments for violations of their civil rights.
A lower court dismissed all of Mitchells’ six claims. The Appeals Court reversed the dismissal on three of them which the lower court must now reconsider. They are:
- The officers who allegedly shot Mitchell used excessive force, in violation of his Fourth Amendment rights.
- Sgt. Benjamin Kennelly, the Morton County Sheriff’s Office scene commander, failed to prevent excessive use of force, allowing officers to under his charge to fire munitions at peaceful protestors.
- Mitchell’s “Monell” claim against Morton County was justified. A Monnell claim allows plaintiffs to hold local governments monetarily accountable for their unconstitutional acts.
Here are the facts, as laid out in the ruling.
Mitchell arrived at Standing Rock in November, 2016 at a point where the protests had been ongoing for several months, it said.
“[L]aw enforcement was becoming ‘increasingly hostile and aggressive’ toward the protestors despite the fact that they were protesting ‘peacefully,’” the ruling said. “Under the direction of Morton County Sheriff Kyle Kirchmeier, the officers began to use “violent tactics” against the protestors, including deploying “weapons like bean bag pellets, rubber bullets, tear gas, pepper spray, and firehoses to spray freezing water.” …
“The unrest continued into November. On November 20 and 21, despite ‘wholly fail[ing] to provide adequate warnings or announcements to disperse,’ officers ‘indiscriminately deployed freezing water, chemical agents,’ and other weapons, ‘including lead-filled bean bags,’ at ‘individuals within the crowd.’
Many protestors ‘suffered serious injuries, including loss of consciousness, facial burns, broken bones, genital injury, and hypothermia as a result of the officers’ actions.’ In particular, one individual ‘peacefully protesting’ was hit by an explosive munition that ‘nearly sever[ed] her left hand from her arm, . . . destroying most of the arteries, skin, tissue, muscle, nerves, tendons, and bone in her left forearm.’
“Sheriff Kirchmeier ‘defended law enforcement’s use of force, and specifically the use of impact munitions.’ ‘When we’re put in the position of protected areas being overrun by numbers of people,’ he explained, ‘these are lawful tools to quell the advancement. . . . We’re not just gonna let people and protesters in large groups come in and threaten officers.’ Under Sheriff Kirchmeier’s direction, ‘law
enforcement officers continually deployed’ weapons such as ‘bean bag guns’ against the protestors ‘throughout late 2016 and early 2017.’
“‘On the evening of January 18, 2017, and into the early morning hours of January 19, 2017, approximately 200 [protestors] gathered’ at a bridge ‘near the law enforcement blockade’ on the public highway. The protest was ‘peaceful.’ … A team of officers led by Sergeant Benjamin Kennelly was ‘dispatched to the scene and issued 12 gauge shotguns that deployed drag stabilizing bean bag rounds.’ Sergeant Kennelly acted as ‘scene commander’ and ‘directed law enforcement officers during ‘pushes’ during which officers rushed, advanced toward and deployed munitions at’ the protestors.’
“Having ‘heard that law enforcement officers were shooting unarmed [protestors], including elders and women,’ Mitchell decided to go to the bridge. As ‘Mitchell approached the Bridge, he observed from a distance that law enforcement officers were indeed shooting people on the Bridge.’ Mitchell ‘positioned himself in front of women and elders in the crowd’ and, ‘[w]ith his hands raised in the air, . . . said ‘Mni Wiconi,’ which means ‘water is life’ in the Lakota language.’ After a countdown, several officers fired lead-filled bean bags from their shotguns at Mitchell. Mitchell was hit in three places, including his head. One of the rounds shattered his left eye socket and became lodged in his eye, requiring surgery.”
According to The Guardian, Mitchell was taken to a Bismarck hospital.
“Law enforcement officers and hospital staff concealed Mitchell’s whereabouts from family members and supporters, who spent a frantic day and a half searching for him,” the story said. “When a group of family members and legal workers finally discovered him on the hospital’s fourth floor, he was shackled to a gurney.”
According to the court ruling, Mitchell was charged with criminal trespass and obstruction of a government function. Mitchell agreed to pretrial diversion. The “state conditionally agreed to dismiss the charges.”
Note: An earlier version of this post erred in describing the status of the case. It’s been corrected to say it’s been remanded to the lower court.