Dundon v. Kirchmeier Civil Rights Case Community Update
*Note: This community update contains information about an unjust court order in a legal case that may be upsetting to readers.
Background
Dundon v. Kirchmeier is a federal civil rights class-action lawsuit filed by several named plaintiffs on behalf of hundreds of #NoDAPL Water Protectors who were injured by law enforcement on the night of November 20, 2016 protesting the Dakota Access Pipeline (DAPL). At least 200 Water Protectors were injured and dozens hospitalized from this incident at Backwater Bridge in Standing Rock, ND. During the night of November 20, 2016, high-pressure fire hoses were used in freezing weather conditions against Water Protectors, along with highly dangerous impact munitions, explosive devices and chemical weapons. The Dakota Access Pipeline was originally set for construction in the Mandan-Bismarck area but instead was moved within feet of the Standing Rock reservation, which would pollute the Mni Sose (Missouri River) - the main water source for Standing Rock, Cheyenne River, Oglala, and Lower Brule Sioux Nations.
The Dundon case was filed on November 28, 2016, a week after the incident at Backwater Bridge, requesting a court order to stop law enforcement violence against Water Protectors. The North Dakota federal district court denied the injunction and the 8th Circuit Court of Appeals upheld the district court’s order. The district court stalled Dundon and all related litigation for years, failing to rule on a motion to dismiss filed by law enforcement. In September 2021, the North Dakota District Court finally began moving the case forward, allowing both sides to conduct limited discovery and present additional evidence to help the Court decide whether it should allow the case to go to trial. Months of depositions of plaintiffs and law enforcement followed, in which the Dundon legal team sought information on law enforcement tactics and weaponry used at Standing Rock needed to prove that the police use of force was illegal and excessive.
Court Decision
On December 29, 2021, after five years of litigation, the Court found in favor of law enforcement and dismissed the entire case.
“The ruling appears to legitimize launching an hours-long barrage of potentially lethal weapons, indiscriminately into a crowd of Water Protectors or demonstrators," said Rachel Lederman, WPLC board member and lead counsel for the Water Protector plaintiffs.
“The decision is an example of how judges let law enforcement off the hook using a judicially created doctrine called ‘qualified immunity’. 'Qualified immunity’ serves to allow a court to dismiss civil rights cases against law enforcement if in the court's view there is no preceding case where a defendant officer was found liable when confronting the same or similar facts. This has led officers to think that they can "shoot first and think later” with no accountability," said Janine Hoft, another WPLC cooperating attorney on the Water Protectors’ team.
This ruling is one more instance of the oppression of Indigenous peoples by the United States and the colonial legal system. To further the injustice of the ruling the court issued the decision on the anniversary of the Wounded Knee massacre, where nearly three hundred Lakota people were killed by soldiers of the United States Army on December 29, 1890.
The Dundon legal team is now in discussion with plaintiffs as to potential next steps and evaluating all legal options. We will share any updates on the case.
We Keep Fighting
This decision will not silence the truth - that peaceful protectors endured violence to protect water, bravely putting their whole beings on the line for each other and for the future generations to come.
The world awoke to the struggles of Indigenous peoples and nations at Standing Rock, where thousands of people from around the world answered the call to support the Indigenous-led #NoDAPL movement to protect the water and land for future generations. Water Protectors who gathered in opposition to the Dakota Access Pipeline, were undoubtedly injured and traumatized by the excessive use of force by law enforcement on the night of November 20, 2016. Throughout the camp's existence, law enforcement used methods of intimidation and manipulation and physical violence at the behest of the oil company which have had lasting impacts on frontline defenders. The disregard and lack of complete humanity exercised and displayed by law enforcement at Standing Rock is a stark reminder of continued violence, silence and erasure of Indigenous peoples and Nations.
“Though the court’s decision is utterly flawed, this does not diminish the experiences of those on the ground and those supporting from far who’ve put their bodies on the line, time, prayers and medicine down for the water. It does not take away from the prayers that brought us together, nor the medicine and songs we have shared. This does not divide us, this reminds us of all the work still to be done, the powerful things that have happened from everyone coming together. We are the answers, we are the change we are searching for and together we make real change happen,” says Jaden Cowboy, Water Protector and WPLC staff.
The Water Protector Legal Collective began as the on the ground legal team at the Water Protector camps, to provide legal advice and coordinate the criminal defense of Water Protectors, and to expose, and seek redress for the human rights and civil rights violations they endured.
As an organization with Indigenous staff, an Indigenous-led board of directors, and numerous cooperating attorneys and volunteers from around the country, we reaffirm our commitment to continue providing legal support for Water Protectors, land defenders, Indigenous Peoples and Original Nations, the Earth, and climate justice movements.
“At some point, there needs to be accountability - whether or not that’s in colonial court systems - and whether or not that comes in our lifetimes. As it’s been said, ‘you don’t fight fascists because you can win, you fight fascists because they’re fascists.’ As long as Indigenous peoples around the world continue to struggle for our existence, for the water, the Earth, and future generations, we won’t stop fighting on many fronts to support the right to resist extractive industries’ destruction of Mother Earth Unci Maka Pachamama,” said Natali Segovia, WPLC Legal Director.
This court decision is a reminder of why we must continue to take up space in these systems, why we must come together, why we speak out against these atrocities done in the name of profit and settler colonialism, regardless of the response. We must continue to stand up and push back against the continued oppression by those in power, for those yet to come.
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The Dundon legal team consists of WPLC Cooperating Attorneys Rachel Lederman , Mara Verheyden-Hilliard (Partnership for Civil Justice), Janine Hoft (People’s Law Office), Melinda Power (West Town Law Office), and Natali Segovia, WPLC Legal Director.
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