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8th Circuit Opinion in Dundon v. Kirchmeier Rules in Favor of Law Enforcement


November 16, 2023


Rachel Lederman, Esq. (Lead Counsel)

Partnership for Civil Justice Fund


Natali Segovia, Esq.

Water Protector Legal Collective

St. Louis, MO - In a short written opinion, the 8th Circuit Court of Appeals ruled in Dundon v. Kirchmeier in favor of law enforcement, agreeing with the North Dakota District Court that hundreds of #NoDAPL Water Protectors who were injured by law enforcement on November 20, 2016, were not subjected to excessive use of force, despite being hit with all forms of impact munitions during the night and for over ten hours, continuously barraged by water from fire hoses at below freezing temperatures.

The decision, which comes after oral arguments held in September, ignores over 1,700 pages of evidence that accompanied the appellate brief that refuted law enforcement’s claims that there was any justification for violence. The decision also summarily disregarded the arguments in the appellate brief and amici National Congress of American Indians (NCAI) and the National Police Accountability Project (NPAP).

The opinion stated in part: "We conclude that the protestors have not established that the individual officers violated a clearly established right under the Fourth Amendment, because it was not clearly established as of November 2016 that use of force to disperse the crowd was a seizure. The protestors do not develop an argument that the actions of the officers clearly “shocked the conscience,” or otherwise violated a clearly established right of the protestors under the Due Process Clause. The district court properly dismissed the claims against the officers under the Fourth and Fourteenth Amendments."

One of the named plaintiffs, Chris Light, reflected on the case: “My heart is strong but sad. My heart is still beating like the drums on the bridge on the night of November 20, 2016. Since Oceti Sakowin my heart has been healing, seeing the truth, feeling love. Water, fire, and air are our ancestors. Our nonhuman relatives deserve to be fought for too. Since that night I have been a disabled person. I suffer from PTSD. I suffer from night terrors. So for justice not to be given to us and for the court to not hold law enforcement responsible is allowing how law enforcement treated Water Protectors to go unchecked. My heart is grateful for the lesson, and the patience.”

Lead counsel, Rachel Lederman, who argued the appeal, stated: “This has been a hard-fought struggle by water protectors to vindicate their constitutional rights, which were so egregiously violated at Standing Rock. It is disappointing to see the federal courts readily absolve law enforcement who brutally pummeled nonviolent, peaceful people with freezing high pressure water and dangerous, maiming munitions for hours on end.”

WPLC Executive Director, Natali Segovia, reacted: “As Indigenous Peoples, we know all too well the pendulum swings of the law - rarely in our favor, so often against us. The court says arguments on behalf of Water Protectors were insufficient to ‘shock the conscience.’ Law enforcement deployed a code red on the night of November 20, 2016 - this was all of the law enforcement in the entire state of North Dakota against unarmed Water Protectors standing in prayer and protest to protect the Water. If the violence of law enforcement does not speak for itself to sufficiently shock the conscience, what this signals is that we need a new conscience.”

As an Indigenous-led legal organization, we are committed to working towards change in the legal system and beyond to adequately protect the rights of Indigenous Peoples and the Earth itself. This decision will not silence us and the countless Water Protectors that put their bodies on the line to protect the Water and protect the sacred. It is a reminder that we keep each other safe and it is together that we work to fight for accountability both within the colonial systems of law and beyond those spaces. We hold our community close as we weather these challenges together, shoulder to shoulder. Indigenous Peoples have stood against oppression by those in power for hundreds of years. We are still here because of that resistance. It is a fact we honor as a legal organization and are committed to continuing to stand against oppression.

For more background on Dundon please visit:

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