If you have spent any time on social media or followed the national news in the past few months, you have no doubt heard about the ongoing protests at Standing Rock Indian Reservation (primarily in North Dakota) related to work being done on the Dakota Access Pipeline, but you may be somewhat unclear as to what it all entails. Which is understandable given the nature of social media and the complicated relationships at work, which involves the US Army Corp of Engineers, Indian Law, the EPA, the Department of the Interior, among other factors.

Put very briefly, an energy company called Energy Transfer Company (ETC) had been given approval in the spring of 2016 to build the Dakota Access Pipeline to transfer oil across Standing Rock, and Native Americans and others began protesting in April against construction on the grounds that the pipeline would endanger their water supply and damage their sacred grounds. The ongoing protests garnered worldwide attention by the fall after law enforcement began using attack dogs, riot gear, weapons, and other military-style tactics to disperse the protest. The US Army Corp of Engineers reversed their decision on approval of the pipeline in December, but ETC said they would continue construction regardless.

Thus, the protests are ongoing. One notable development that occurred in late November is that the protesters have filed a class action suit against the Morton County Sheriff’s Department and other law enforcement agencies to enjoin the agencies from using heavy-handed policing tactics, the argument being their use is a violation of the protesters’ constitutional rights.

The Protesters’ Constitutional Arguments

The class action suit, filed on behalf of the self-proclaimed “water protesters” by the National Lawyers Guild, asks for damages as well as injunctive relief based on the law enforcement agencies’ alleged use of “highly dangerous Specialty Impact Munitions (SIM), explosive teargas grenades, teargas canisters, and a water cannon spraying high pressure water, as a means of dispersing protests and prayer ceremonies associated with opposition to the Dakota Access Pipeline.”

The complaint alleges that the protesters were not given appropriate warnings to disperse prior to the use of such tactics, nor were the tactics justified as the protesters were peacefully and prayerfully protesting the pipeline construction. Furthermore, the plaintiffs allege that protesters have been physically injured by the tactics, including permanent disabilities in some cases, due to the use of explosives and high-powered water hoses employed in very cold temperatures.

The main constitutional arguments supporting the request for the injunction and the damages are that the defendants’ actions violate the protesters’ First Amendment right to free speech and that the use of SIM, water, chemical agents, and explosive grenades on the Plaintiff class constituted excessive force under the Fourth Amendment, which protects individuals from unreasonable searches and seizures by the government.

The Challenge in Certifying a Class

One challenge that the protesters face in asserting their class action – and indeed a challenge that any potential class seeks in bringing a class action suit – is to prove to the court that they meet the requirements for class certification. When you have situation where, for example, consumers are all injured by the same product made by the same defendant in similar ways, this question is usually more straightforward, but questions involving legal issues such as constitutional rights and distinct actions taken by law enforcement can get thornier.

In pursuit of demonstrating the necessary similarity of injuries and legal questions for a class, the complaint alleges that the class includes “all persons who were shot or harmed by water, SIM, chemical agent, or grenades on November 20, 2016” and presents the First and Fourth Amendment challenges as common questions. How the court will rule on the request for class certification remains to be seen, but it should be a fascinating legal challenge to follow.

Class Action Attorneys in Mississippi

If you have been injured by a defendant, and you have reason to believe that there are a significant number of other plaintiffs who have been injured by the same defendant in a manner that is factually similar to the way you were injured, you may be able to commence a class action suit.

Herrington Law in Jackson, Mississippi has become a class action leader because of its constant focus on what matters most: obtaining justice for individual plaintiffs who have been wronged by defendants. We have built strong relationships over the decades with co-counsel across the country, all in pursuit of providing outstanding outcomes for the people who matter most: our clients. Contact us to set up a free consultation today.