By Jennifer Cook, Policy Director, ACLU of North Dakota

As you are likely aware, the ACLU of North Dakota works on a number of issues, and we follow bills pertaining to our priority issues throughout legislative session. We’ve blogged on our lobbying efforts pertaining to First Amendment legislation. Today, we’re talking about the bills pertaining to criminal justice and privacy and technology that we saw in the 2017 North Dakota State Legislative Session.

Confidential Informant Reform – HB 1221 (Passed)

• We worked through the interim and during session to help secure passage of Representative Rick Becker’s confidential reform bill or “Andrew’s Law.”  The bill as originally written required police only use a person as a confidential informant (CI) if the potential informant had consulted with an attorney and police assessed the risk to the safety of the potential informant and certain other factors.  The original version of the bill prohibited the use of juveniles under 15 as informants and required police to collect and publicly report data on their use of informants.  CI use by police is largely unregulated, shrouded in secrecy, and often circumvents an informant’s rights to due process and representation by an attorney.  CI work is dangerous and informants receive little to no training despite doing some of the most dangerous undercover work.  Despite passing the House with little change, the Senate amended the bill drastically in committee.  Eventually a compromise bill was drafted and important aspects of the original bill like the right to an attorney, prohibition on the use of juveniles, and training and evaluation requirements for police to use informants made it into the final version of the bill. 

Juvenile Life without Parole – HB 1195 (Passed)

• This bill was introduced by prime sponsor Rep. Larry Klemin.  The bill sought to end criminal sentencing of juveniles to life without parole.  The U.S. Supreme Court ruled in June 2012 that juveniles convicted of murder cannot be subject to a mandatory sentence of life imprisonment without the possibility of parole. The court’s rulings in Miller v. Alabama and Jackson v. Hobbs built on a decision two years prior that juveniles could not be sentenced under any circumstances to life imprisonment without the possibility of parole for non-homicide offenses. Even when a juvenile was convicted of murder, the court said, a judge must be allowed to take a juvenile’s age into account (along with other relevant circumstances) in deciding the appropriate punishment.  We worked closely with the primary advocacy group supporting the bill, The Campaign for the Fair Sentencing of Youth, to assist with the passage of this bill.  The bill as passed requires ND judges upon a motion from an incarcerated person convicted as an adult but sentenced as a juvenile to review the incarcerated person’s sentence and consider a number of factors before granting the person incarcerated as a juvenile a lower sentence than life without the opportunity for parole. 

Prohibition on Weaponized Drones – HB 1167 (Failed to Pass)

• This bill was introduced by prime sponsor Rep. Rick Becker.  It’s a follow-up bill to the drone bill passed during 2015’s session which restricted police use of drones without warrants.  The bill passed in 2015’s session prohibited police from weaponizing drones with lethal weapons, but did not include language that prohibited less lethal weapons.  HB 1167 sought to close this loophole.  Unfortunately, despite no objection by law enforcement in the House committee hearing to the limitation on the use of less lethals and an acknowledgement by several police agencies that they do not intend to use less lethals to weaponize drones, the bill failed to pass in the House.  Lawmakers who voted against the bill argued because police do not intend to use less lethal weapons on drones the bill was unnecessary, while others did not want to limit police use of drones.  

Our third and final legislative update will focus on our work protecting voting rights, the LGBT community, and more.  Stay tuned for more 2017 legislative updates!

By Jennifer Cook, Policy Director, ACLU of North Dakota

Another legislative session wrapped up at the end of April in North Dakota.  We spent the session advocating for bills that protect or advance North Dakotans’ civil liberties and rights and defending against bills that would compromise them.  More than 700 bills were introduced this session and we tracked and lobbied on a good number of them. We had some wins, a loss, and made some bad bills a little more palatable as well. Because our lobbying efforts were so vast this year, we’re breaking up our legislative recap into a three part series.

The 2017 legislative session was challenging particularly because there were a myriad of bills that took direct aim at our First Amendment rights.  Although there were many bills that sought to chip away at those rights, we were successful in defeating or lessening the impact of many of them.  Our first legislative recap will recap the anti-protesting bills we lobbied on this session.

Disorderly Conduct causing Economic Harm – HB 1193 (Defeated)

HB 1193 was introduced by prime sponsor Rep. Larry Klemin.  The bill would have enhanced the penalty of a miscellaneous misdemeanor like disorderly conduct to a class C felony for anyone who was found guilty of committing the misdemeanor offense and the associated conduct was found to have caused one thousand dollars or more of economic harm.  The bill’s language was problematic because it likely would have encompassed activities that are strictly protected by the First Amendment.  After all, the intent of protests like boycotts is to cause economic harm.  The US Supreme Court has held that such activity is protected by the First Amendment.  We collaborated with the ND AFL-CIO and the ND Association of Criminal Defense Lawyers to defeat this bill. 

Motor Vehicle Driver Immunity – HB 1203 (Defeated)

This bill was introduced by prime sponsor Rep. Kempenich.  The intent of the bill was to immunize drivers from liability if they hit a protestor or any pedestrian on a roadway.  The language of this bill was so broad that its application would have allowed drivers to operate their vehicles without fear of liability in most any circumstance.  Needless to say, this bill was ill-conceived and dangerous.  We worked with trial lawyers and others to ensure the House committee members and representatives understood the ramifications of the passage of this bill. 

Anti-Masking Bill – HB 1304 (Passed)

HB 1304 was introduced by prime sponsor Rep. Al Carlson.  The bill sought to criminalize any person wearing a mask or hood in a public place and provided some exceptions for religious purposes, athletic activities, Halloween, seasonal or weather related coverings, and a few others.  For purposes of the First Amendment, the bill’s prohibition on wearing masks or hoods on a public street unless allowed by the listed exceptions in the bill would have unconstitutionally prohibited the wearing of a mask during a protest on a public street or sidewalk.  We lobbied against the passage of this bill in its entirety, but we also suggested that the unconstitutional aspect of the bill could be remedied by adopting much narrower language that only made it a crime to wear a mask or hood to conceal one’s identity during the commission of a crime.  The House committee chose to adopt the amendment we suggested and the Senate added new language that made it a crime to wear a mask or hood with the intent to harass or intimidate another during the commission of a crime.  Although we argued the bill as amended was unnecessary the bill passed and was signed into law.  Despite the bill’s passage, the language of the new law is much narrower than originally proposed by Rep. Carlson and does not upon its face infringe upon First Amendment rights.

Increased Penalties for the Criminal Offense of Rioting – HB 1426 (Passed)

HB 1426 was introduced by prime sponsor Rep. Todd Porter.  The bill sought to increase the penalties for engaging in and inciting a riot.  The penalty for engaging in a riot increased from a class B misdemeanor to a class A misdemeanor which carries the possibility of up to one year in jail and a three thousand dollar fine.  The penalty for inciting a riot of that involves one hundred people or more increased from a class C felony to a B felony which carries up to ten years in jail and a twenty thousand dollar fine.  Proponents argued the heavier penalties required by this legislation would deter protesters from engaging or inciting a riot.  North Dakota’s definition of riot is quite broad and the offense can encompass a wide variety of behavior. Despite proponents arguments that HB 1426 should be applied to “tumultuous and violent conduct” it’s clear protester activity that amounted to much less than “tumultuous and violent conduct” was deemed rioting by police and prosecutors during NoDAPL.  The riot offense has and can be used to criminalize First Amendment activity. Despite our strong arguments that the bill would likely chill First Amendment speech, criminalize legitimate protest activity, and encumber the criminal justice system, the legislature passed HB 1426. 

Loitering – HB 1383 (Defeated)

This bill was introduced by prime sponsor Rep. Todd Porter.  The intent of the bill was to criminalize persons who loitered in public or private spaces.  The bill’s language would have made it a class B misdemeanor for a person to stand in a public or private place and refuse to reveal their identity to police if the person’s presence in the area caused another person reasonable and justifiable alarm for the safety of their person or property.  The bill’s language was broad and vague and arguably violated the Due Process clause of the US Constitution.  Evidence shows that the enforcement of loitering laws in other parts of the country disproportionately and needlessly sweeps homeless persons, people living in poverty, and people of color into the criminal justice system.  Such laws can also have a chilling effect on legitimate First Amendment protected activity in public spaces.   We collaborated with the ND Catholic Conference to oppose this bill.  HB 1383 received a Do Not Pass recommendation from the House Judiciary committee and during the House floor vote it failed by wide margins.

Thanks to the collaborative efforts of the ACLU and the many organizations we worked with, we were able to stop or neutralize the majority of bills that would have unconstitutionally limited First Amendment speech and protesting in North Dakota.

Legislative Updates part two and three can be found here: 

Part 2: Criminal Justice and Privacy and Security

Part 3: LGBT, Immigration, Religious Freedom, Voting Rights

By Jamil Dakwar, Director, ACLU Human Rights Program

During my week-long visit to Standing Rock in January 2017, I listened to many water protectors speak about the shady tactics used against them by private security contractors and local law enforcement to undermine their protests against the Dakota Access Pipeline.

I heard stories about DAPL security companies trying to infiltrate protest camps and instigate rifts between activists. I heard about organizers being followed and indigenous activists seeing planes, helicopters, and drones above their camp, surveilling their protests and recording their movements and activities at all hours.

I heard indigenous people describing their home being turned into a war zone. Local law enforcement agencies, led by the Morton County Sheriff’s Department, aggressively deployed militarized gear and weapons — designed for use in war — to intimidate peaceful protesters and violently crack down on a historic indigenous-led movement.

Now, these stories and testimonies have been confirmed by newly released documents, some of which were leaked to the press by a contractor from TigerSwan — the security agency hired by the pipeline company, Energy Transfer Partners — to suppress the protests.

TigerSwan operates worldwide and specializes in armed conflict zones. According to the new revelations, the company utilized militaristic counterterrorism tactics against anti-DAPL protests not just in North Dakota but in several other states as well, including South Dakota, Illinois, Iowa, and Texas. The documents reveal a security force whose theories are as Islamophobic as they are absurd: In just two examples, TigerSwan compares water protectors to insurgents and “jihadists” and references a “strong female Shia following.” One leaked communication notes “the presence of additional Palestinians in the camp,” and it says that “the movement’s involvement with Islamic individuals is a dynamic that requires further examination.”

The militarization of American policing has long been a problem, even before the protests in Ferguson when the issue captured national headlines. In these documents, we see irrefutable evidence of the deployment of private military contractors to suppress legitimate and peaceful protests and activities. While the new documents may not provide enough detail to determine whether TigerSwan has crossed the line of illegality, its operations and reports are ominous and should deeply trouble all Americans.

The First Amendment’s guarantee of the “right of the people peaceably to assemble” cannot be reconciled with private military contractors deploying against peaceful protesters on domestic soil with little or no oversight or accountability. Their collaboration with federal, state, and local governments requires a credible and independent investigation.

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Unfortunately, the current Department of Justice and Civil Rights Division, under the direction of Attorney General Jeff Sessions, has demonstrated a deep hostility towards police accountability and reform. Even the limited actions taken by the Obama administration to curtail the militarization of American policing are in real jeopardy. A May 2015 report by The President’s Task Force on 21st Century Policing concluded that:

Law enforcement agencies should create policies and procedures for policing mass demonstrations that employ a continuum of managed tactical resources that are designed to minimize the appearance of a military operation and avoid using provocative tactics and equipment that undermine civilian trust.

That month, a federal interagency working group issued recommendations to demilitarize state and local law enforcement pursuant to President Obama’s Executive Order 13688. The working group called for a prohibition of state and local law enforcement agencies from acquiring certain offensive military equipment, like tanks and bayonets. It put policies in place that governed the use of things like drones and mine resistant ambush protected vehicles (MRAPs). With Jeff Sessions not wanting the federal government “dictating to local police how to do their jobs,” it’s likely these policies will be soon be eliminated.

The militarization of American policing has also been internationally condemned by human rights bodies. Next week in Geneva, the U.N. special rapporteur on the rights to freedom of peaceful assembly and of association will present a report on his 2016 visit to the United States, which harshly criticizes the militarized response of police to legitimate protests:

The Special Rapporteur is also concerned that it has become commonplace for police to respond to peaceful demonstrations with military-style tactics, full body armour, and an arsenal of weaponry suited more to a battlefield than a protest. While the Special Rapporteur is sensitive to police concerns that they must be properly equipped to deal with potential unlawful activity, he is convinced that the widespread militarization of police needlessly escalates tensions and provokes equally aggressive reactions. Protesters are not war enemies and should never be treated as such. It is ill advised to use military equipment to manage activities so fundamental to democratic societies.

The proliferation of militarized policing and the use of private security and military contractors since 9/11 and in the wake of U.S. wars overseas have disproportionately impacted communities of color and indigenous peoples, as we have witnessed in Ferguson, Baltimore, Baton Rouge, and Standing Rock. But these new revelations on the deployment of private security contractors — mercenaries, essentially — to suppress peaceful assemblies and legitimate organizing are especially concerning. They should make us all concerned about the future of militarized and private policing and the serious threats they present to our most fundamental freedoms and human rights.