Protests are on the rise in the Midwest, and so are the number of bills to deal with this activity
From demonstrations trying to stop proposed pipelines to rallies denouncing deadly police encounters with civilians, the number of protests in the Midwest has been unusually high over the past year.
The region’s legislators have taken notice, revisiting their states’ laws on criminal trespassing, loitering, picketing, blocking roadways and disorderly conduct. As of early March, protest-related legislation had been introduced in 2017 in at least five of the region’s 11 states (see map). North Dakota and South Dakota were the first two Midwestern states where those bills became law.
In North Dakota, Sen. Kelly Armstrong says, thousands of people came to his home state to demonstrate against the Dakota Access Pipeline, and that activity included instances of vandalism and threats against police.
“Most of the protesters were peaceful, but law enforcement didn’t have the tools to deal with the individuals who were turning peaceful protests into riots,” he says. “And in the legislature, we realized that our statutes just weren’t sufficient to deal with the conduct that occurred here.”
The recently signed bills in North Dakota:
stiffen penalties for “inciting a riot,” which was enhanced to a Class B felony punishable by up to 10 years in prison and a $20,000 fine for incidents involving 100 or more people (HB 1426);
make it a Class A misdemeanor (it had been a Class B misdemeanor) for disobeying public safety orders under riot conditions, punishable by up to one year in prison (HB 1426);
give law enforcement new options to enforce the state’s criminal-trespassing statute, with a provision that allows police to cite violators with a $250 fine rather than filing criminal charges (HB 1293);
expand the state attorney general’s authority to appoint ad hoc “special agents,” defined as law enforcement officers from other jurisdictions (SB 2302); and
make the “wearing of masks during commission of criminal offense” a Class A misdemeanor (HB 1304).
Some of the legislative actions in North Dakota came from a review of old state laws that hadn’t been touched in years (criminal trespass, for example), Armstrong says, while others were new: The “mask” law was based on statutory language in other states and Washington, D.C.
All of the measures were a response in one way or another to recent protests over the Dakota Access Pipeline, which will transport oil through four Midwestern states (North Dakota, South Dakota, Iowa and Illinois). The recent demonstrations centered on environmental concerns and the pipeline’s impact on the drinking water and sacred sites of the Standing Rock Sioux Tribe.
In South Dakota, legislators passed SB 176 in anticipation of protests over construction of the Keystone XL Pipeline. With this new law in place, the South Dakota governor and a local county sheriff have the authority to “prohibit any group larger than 20 persons from congregating” on public land if they believe such a ban is necessary to keep the land from being damaged. SB 176 also creates new penalties, or enhances existing ones, for criminal trespass and blocking roadways.
Free speech vs. ‘time, place, manner’ limits
With these recently passed measures, and others introduced this year in the Midwest, lawmakers face the question of how far to go in dealing with what they say is unlawful behavior by protestors.
Individuals have the constitutional right to free speech and freedom of assembly (in the U.S. constitution and many state constitutions), but governments also have the authority to enforce reasonable “time, place and manner restrictions.”
“We have been careful in our legislative response to the protests,” Armstrong says, “and I think you see that in the fact that we had some bills that got passed, but others that were killed or that we’re at least taking more time on.”
He cites, for example, a proposed loitering bill (HB 1383) that stalled because it was overly broad and would stifle free speech and assembly.
The protest-related bills in states such as Indiana, Iowa and Minnesota target demonstrations or rallies that obstruct highways, airports and/or rail lines. That activity already is illegal in many states, but this year’s proposals stiffen the penalties.
“I have no issue with people protesting; House File 390 does not limit a person’s First Amendment rights,” Rep. Nick Zerwas said as his legislative proposal made its way through the Minnesota House in February. rotests on the state’s freeways occurred in 2016 in the wake of the police shooting death of a 32-year-old African-American man and after the presidential election.
HF 390 would make it a gross misdemeanor to block highway, transit and airport access. This type of demonstrating, Zerwas said, “is not only disrespectful of people’s time, it’s a matter of public safety.”