Running Over Protesters by Mistake Could Be Legalized in North Dakota

Tara Houska, a Native American activist who has lived at the Dakota Access Pipeline protest site in North Dakota since August, is outraged by proposed state legislation that would make it legal for motorists to run over demonstrators who get in their way.

“It's shocking to see legislation that allows for people to literally be killed for exercising their right to protest in a public space," Houska told NBC News. "These [bills] are meant to criminalize the protests with no real concern for constitutional law.”

Drivers who “unintentionally” kill or injure a pedestrian blocking traffic would be "not guilty of an offense” under the proposed legislation that has angered Houska.

The bill’s sponsor, State Rep. Keith Kempenich (R), said he is not trying to legalize vehicular manslaughter. Nor is he trying to stop the DAPL protests.

“This bill is not about oil. We ranch. We’re conservationists too,” Kempenich told the Washington Post. “But there’s a line between protesting and terrorism, and what we’re dealing with was terrorism out there. [Drivers] who were legally doing their business or just going home and all of a sudden they’re in a situation they don’t want to be in.”

The legislation, he explained, is a reaction to what happened to his 72-year-old mother-in-law when she was surrounded by DAPL demonstrators while driving near the protest site on Highway 1806.

She told Kempenich that chanting protesters swarmed over her car and jumped in front of the vehicle to force her to stop.

“The First Amendment gives people the right of freedom to assemble peacefully, but it also gives the right for people to ignore that protest,” Kempenich said.

He told the Star-Tribune the legislation is not intended to let someone get away with running down a jaywalker or driving into a kid who chases a ball into the street. Kempenich said this is all about putting the onus of responsibility on people who make a conscious decision to stand in a road and block traffic.

"You can protest all you want, but you can't protest on a roadway. It's dangerous for everybody,” Kempenich said.

Sen. Kelly Armstrong, the chair of the North Dakota Republican Party, told the Associated Press that Kempenich’s bill, along with another proposal that would make it illegal to protest while wearing a mask or anything covering a demonstrator’s face, is a result of what’s been happening along Highway 1806 since August.

“When people are having their lives disrupted, you’re going to see things move up here,” said Armstrong, who is also an oil company executive and a former defense attorney. “It’s very difficult to write protest laws. We need to make sure there is reasonable application of the law in all circumstances, whether protest-related or not.”

Kempenich’s proposal has picked up several co-sponsors, but as of publication had not yet been scheduled for a hearing.

Democrats in the North Dakota Legislature haven’t introduced any legislation related to the DAPL protests. Rep. Marvin Nelson (D) said they don’t plan to, either.

“Knee-jerk legislation often is poor legislation,” said Nelson.

But Kempenich is not the only Republican worried about demonstrators getting in the way of traffic.

Iowa GOP Rep. Bobby Kaufmann introduced legislation that provides new criminal penalties against protesters who block roads, as happened in November during a Donald Trump for President rally.

Minnesota Republican Rep. Kathy Lohmer introduced legislation in January that increases penalties for obstructing highways as well as entrance and exit ramps. A violation could mean a year in jail and a $3,000 fine under Lohmer’s proposal.

Like Kempenich and Kaufman, Lohmer said she was motivated by a real-life protest that disrupted traffic. More than 300 demonstrators walked onto I-94 near Saint Paul last summer, protesting a police shooting.

Forty-six people were arrested. A judge dismissed riot charges that had been filed against them.

“You need to obey the laws of the freeway,” Lohmer told WCCO-TV in St. Paul. “They are there for a purpose. Freeways are not really public spaces, like parks and places like that. You need a license to drive on the freeway. You can’t walk on the freeway.”

But Jordan Kushner, a civil rights attorney in Minnesota who specializes in defending people who get involved in freeway demonstrations, said that’s exactly the point of a good protest march.

You have to be noticed and, to do that, you have to get in the way.

“The proper place to protest is a way that gets people’s attention,” said Kushner. “These proposed laws that make it a much more serious offense to engage in nonviolent peaceful protest are designed to scare people away so that they won’t engage in this sort of protest.”