North Dakota legislature – House Bills 1304, 1293, and 1426, and Senate Bill 2302 (2017)
In the wake of protests concerning the Dakota Access Pipeline (DAP), North Dakota Governor Doug Burgum signed four bills that aim to protect private property and infrastructure. These bills addressed a variety of issues, including the use of masks in public forums and the penalties for trespassing on private property.
Governor Doug Burgum signed the four bills into law on February 23, 2017. His office announced that the bills were “designed to protect landowner rights, deter criminal activity and expand the ability to appoint outside law enforcement officers to assist North Dakota agencies.” Burgum is a Republican.
In 2016, environmental activists and Native American tribes, most notably the Standing Rock Sioux Tribe, clashed with law enforcement officials over the construction of the DAP. The pipeline, which transports oil from North Dakota to Illinois, drew criticism for crossing the Missouri River at a point that allegedly threatened ancient burial grounds and clean water supplies. In the spring of 2016, protesters established a camp to block construction of the pipeline in the contested area. Throughout that summer, the number of protesters climbed into the thousands, reported Time. In August, private security forces hired by a Dallas-based energy company used pepper spray and guard dogs to remove protesters who had trespassed onto private land, NPR reported. According to US News, the protests resulted in nearly 770 arrests.
North Dakota legislators reacted to the DAP demonstrations by introducing a series of bills that restricted the right to protest. Representative Terry Jones, a Republican member of the House Judiciary Committee, told The Bismarck Tribune that “the Judiciary Committee is working really hard to balance the rights of North Dakota citizens to protest and the rights of North Dakota citizens to live under rule of law and conduct their day-to-day activities.”
Some legislators opposed the wave of bills, noting that they were hastily introduced as a reaction to the pipeline protests. “I am opposed to knee-jerk legislation because it’s almost always bad legislation,” Representative Rick Becker, a Republican, told the Tribune.
Four bills were approved by both legislative chambers. HB 1304 prohibits individuals from wearing a mask or hood that covers part or all of the face when in a public area, reported the Tribune. Representative Al Carlson, a Republican, was inspired by masked environmental protesters to introduce the bill. “That’s not a peaceful protest,” he remarked to the Tribune about the demonstrations against the pipeline. “It might be legal in Baghdad but not in Bismarck.” The American Civil Liberties Union (ACLU) of North Dakota opposed this legislation on First Amendment grounds.
HB 1293 allows law enforcement officials to issue a $250 citation for trespassing on private property. Proponents of the law noted that the bill is modeled on speeding ticket violations, reported the Tribune.
HB 1426 increases the potential penalty for rioting to one year in jail and a $3,000 fine. Moreover, the penalty for inciting a riot that involves 100 people or more was increased to 10 years in jail and a $20,000 fine. The ACLU of North Dakota argued that this bill would “likely chill First Amendment speech, criminalize legitimate protest activity, and encumber the criminal justice system.”
Finally, SB 2302 permits North Dakota’s attorney general to respond to a large protest by appointing out-of-state law enforcement officers as “ad-hoc special agents,” according to the ACLU of North Dakota.
Many protesters who were involved in the DAP demonstrations believed that this legislative trend violated the First Amendment. “These [bills] are meant to criminalize the protests with no real concern for constitutional law,” a Native American environmental activist told NBC News.
Though four bills ultimately passed the legislature and were signed by the governor, others were rejected by lawmakers. House Bill 1383, for example, would have made loitering “in an unusual manner that warrants justifiable and reasonable alarm” a Class B misdemeanor. This legislation was rejected for being too broad, reported the Tribune. Another failed bill, HB 1203, would have cleared drivers who hit protesters of any liability, so long as the collision was “unintentional,” reported the LA Times.
Bills Signed After Protest Camps Cleared
On the afternoon of February 23, 2017, Governor Burgum signed the four bills into law. Earlier that day, the main pipeline protest camps had been cleared by law enforcement officials, according to the Tribune. Each bill contained an emergency clause that rendered it effective immediately.
Prepared by Will Haskell ‘18
Uploaded March 19, 2018