SB 176: Governor Overreaches, Wants to Treat Protests as War Zones

Last week Rep. Tim Goodwin withdrew his offensive House Bill 1145, the vague “no-go zone” bill based on Breitbartian Islamophobia. I’m glad to see that bill gone, due to the probably unintended threat it posed to public protest and other First Amendment activities.

But now Governor Dennis Daugaard has offered a more intentional assault on South Dakotans’ right to protest. Senate Bill 176, originally a carcass passed in its empty form by Senate State Affairs but deferred for further consideration, is now pending in committee with ten sections of police-state power for a cranky Governor to use to shut down protests like the Standing Rock No Dakota Access action:

Officials including Daugaard have talked with Gov. Doug Burgum’s administration to hear about North Dakota’s experience handling the protests and what the state would have done differently, Chief of Staff Tony Venhuizen told The Associated Press on Wednesday.

“We’ve seen what we’ve seen in North Dakota, and we want to be prepared,” Venhuizen said. “We certainly understand that there may be people who want to peacefully protest, and it’s nobody’s intention to prohibit that or prevent that, but those need to be controlled so that they don’t endanger public safety or public property or private property” [James Nord, “North Dakota Pipeline Protest Spurs South Dakota Legislation,” AP via McClatchy, 2017.02.15].

The Constitutionally problematic text of SB 176 is right up front:

Upon the occurrence of an event that may consume significant public resources, poses a threat to public or private property, and poses a threat to the health and welfare of the public, the Governor may declare any location within the state to be a public safety zone and issue an order authorizing any action provided for under § 34-48A-5, 34-48A-6, 34-48A-32, 34-48A-34, 34-48A-36, 34-48A-41, 34-48A-46, 34-48A-47, 34-48A-48, 34-48A-49, 34-48A-51, or 34-48-53, without declaring an emergency or disaster, within the public safety zone and within one mile thereof [2017 SB 176 as amended by Amendment 176oa, Section 1, 2017.02.15].

“Significant public resources” is not defined. Under our current tight budget (but hey, when is South Dakota’s budget not tight?), I could reasonably contend that any consumption of public resources, budgeted or unexpected, is significant. One can argue that any gathering of protestors has the potential to devolve into a ruckus that could break a window or spread the flu.

Alert the Governor to a protest that induces a nervous local PD to send a couple extra cops, and he can invoke emergency powers equivalent to what he can invoke to respond to disaster, terrorist attacks, and war.

Governor Dennis Daugaard skydives
Governor Daugaard, getting the drop on protestors?

In other words, SB 176 allows the Governor to quash a protest by declaring everything within a mile of the action a practical war zone.

So what can the Governor do in a war zone? Among other unchecked powers…

  • Seize private property (though not guns!) without a warrant [SDCL 34-48A-5];
  • Suspend the rules of state agencies [SDCL 34-48A-5];
  • Control the movement of all people within, into, and out of the zone (including, as I read it, whether or not you can remain on your own property) [SDCL 34-48A-5];
  • Commandeer the resources of any political subdivision in the state (not just the jurisdictions included in the war zone) [SDCL 34-48A-6];
  • Authorize unlimited state spending [SDCL 34-48A-32].

Current statute says those war-zone powers remain in effect for six months.

SB 176 Section 3 creates a new category of trespassing for disobedient citizens in a protest/war zone, “aggravated criminal trespass,” a Class 1 misdemeanor which carries an unsuspendable sentence of ten days in county jail. Commit the same trespass again within two years, and Section 4 busts you for a Class 6 felony. Section 5 says similar protest trespassing in any other state counts as your first offense, so anyone who got arrested at the Standing Rock protest and comes to South Dakota to make trouble over Keystone XL during the coming months could be busted for felony trespass.

And for good measure, the Governor wants this bill passed with an emergency clause, thus denying the public the opportunity to refer this assault on First Amendment rights. I am unclear on what pressing danger threatens “public peace, health, and safety” and thus justifies this emergency clause… and if the Governor can’t invoke the emergency clause with restraint, can we trust him to invoke his expanded emergency powers under SB 176 with restraint?

Dang—and I thought Trump was the main fascist threat to the Constitution.

SB 176 is an overreaction to the vigorous resistance staged by our Indian neighbors and their allies to the Dakota Access pipeline, and maybe to the huge protest movement against the tyrant in the White House and the milquetoast Republicans facilitating his reign. If ruckus turns to riot, the Governor and South Dakota law enforcement already have enough legal authority to intervene. Now is no time to put the Constitution at greater risk. Let’s chuck SB 176’s emergency powers and emergency clause and save state strength for real problems.


39 Responses to SB 176: Governor Overreaches, Wants to Treat Protests as War Zones

  1. grudznick told you all those professional protesters from out-of-state would leave behind an ecological disaster and pollute like the Devil himself. Go look at the pictures on the ArgusLeader internet. They were not protecting the water they were being paid to be arrested and clog up the courts and polluting the water.

  2. Darin Larson

    Grudz says “They were not protecting the water they were being paid to be arrested and clog up the courts and polluting the water.”

    Grudz, I understand where you are coming from and I feel sorry for you. You think that people only care about the environment if it is in their financial interest to do so. You come from the perspective of “what’s in it for me?” You don’t know selfless people who drove up to ND to protest and support the protesters on their own dime. You live in a small world centered around Talley’s where the trash is taken out the back where you never see it pile up. You are focused on distractions so you don’t have to confront real issues. But at your age, I don’t begrudge you your small comforts and distractions.

  3. The DAPL protesters came in and wrecked millions of dollars of equipment, made a huge mess and walked away leaving a huge toxic waste site waiting for the spring flood to wash it in the river. They had no respect for the environment so they lost all credibility for even being there.

  4. Darin Larson

    “huge toxic waste site” You should write for Breitbart or maybe you could be Trump’s next communications director.

  5. barry freed

    The First Amendment is a dated idea of Speech and Assembly for Redress that was good in our Country’s infancy, but now is a monster that causes riots, unhappiness, and deaths every hour. The Founders never envisioned an Amendment that could be so easily and effectively used against the populace. The situation is out of control with un-registered speakers free to use “facts” and paint signs without a license, and most times there is no way to trace them after the cowardly attack.

    Regard the Troll grudznick above. He has no Government approved training is the use of speech, yet he is allowed to spew words in all directions at the defenseless; no License required, no limit on capacity. Public safety is at risk by allowing his ilk to carry these dangerous words into bars, parks, and Government offices concealed under hats or hair. The words are so cheap, virtually anyone can afford to own and abuse with these Saturday Night Specious’ ©. They are everywhere, used to injure by criminals and bloggers alike.

    The Founders could not have foreseen the word processors, computers, Smartphones, and the Internet, used to disseminate information on a scale that injures by the millions. Assembling wasn’t a problem 200 years ago as there weren’t enough people to make the politicians fearful. Now, Free Assembly is a hornets nest of disease like cold virus’s and breeds discontent as it gains nothing for the protestors. .

    Thankfully, our Government, encouraged by self servers and blogger/control freaks, knows how we must live, what we may eat, what we may take for medicine, and what property we may own. They will gladly jail us for not complying with their edicts and beliefs, creating new Speech laws when freedom or self-governing reveal their ugly heads. Free Speech is something that has been suffered by corporations and politicians for too long, but they are willing to take on the cause. “At Will” licensing will ensure local law enforcement can control speech in their towns with careful screening of applicants and halloween masks available in stores. This comes none too soon considering the crushing number of dangerous IM’s the Lawmakers were forced to extinguish.

    As good Americans we must eschew any speech or gathering not officially approved by King Trump and his State Minions. “When Thesauri and Guy Fawkes Masks are outlawed, only outlaws will have Thesauruses’ and Guy Fawkes Masks”

    (Porter: it’s a book. Thesauri help improve vocabulary, so one doesn’t have to repeat words, impotently swear, or call names in frustration while attempting to express oneself)
    Tôi cao su, bạn là loại keo

  6. I have yet to read the Bill, but it’s probably safe to assume that there are laws already on the books to battle protests that get out of hand. Leave behind a dump? Littering! Block traffic? Creating a public disturbance! Destroying property? Vandalism! Enforce the laws as they exist. It’s not rocket science.

  7. Roger Cornelius

    Like his idol 45, that thing that calls himself grudz, is a purveyor of fake news. grudz doesn’t know for fact if protestors are paid and intentionally plan to clog the court system of a state that he doesn’t reside in. Like 45, grudz’s claim to fact is that somebody told him that.
    Daugaard seems to be preparing the sate for what will surely will be a showdown when Keystone XL construction resumes with the blessings of 45.

  8. Richard Schriever

    Hey!! That my brother-in-law in that flying pic – about to tell the Gov to “save yourself” (pull the damned cord already).

  9. Looks like Darin Larson has a problem with the camp being called a huge toxic waste site. I am just going by an ABC news article telling that there are 2500 loads of garbage including human waste. This has nothing to do with Trump. This all happened under President Obama. Also the Governor of North Dakota called it an environmental disaster if not cleaned up. Darin, if you minimize this being a toxic waste mess it makes you look stupid.

  10. Mr. C, what day you about the pollution left behind by the protestors which will wash into South Dakota, where you and I were born and live?

    Are you pleased or approving of that filth? I recall when I pointed out this eventuality some time.back you scoffed and said “what pollution? These people love mother gaia” or something like that.

  11. Roger Cornelius

    Again, grudz is producing fake news. If he can produce the DFP post where I said, “what pollution”, I promise to apologize for such recklessness.
    “Mother gaia”, I’m not even familiar with that term, grudz, so I know I didn’t say it.
    The mess left at the Standing Rock Camp is inexcusable and goes against the teaching of the elders to protect mother nature. It is an embarrassment to all Native Americans everywhere.
    On the other hand, the senate approved Scott Pruitt as head of the EPA, the very agency he has vowed to destroy and loosen regulations. If Pruitt is successful you can look forward to more toxic waste and on a larger scale that what Native Americans left at Standing Rock.

  12. I do not say the biggest ecological mess on the entire Missouri River system was left by Indians. I say it was left by protestors.

    Some fellow named Burgum called it the biggest mess anywhere.

  13. Darin Larson

    Greg, better call a Hazmat unit if this is a toxic waste dump. You better call the authorities up there and let them know it is toxic waste. Maybe the EPA under Pruitt can make it a Superfund clean up site.

    Seriously, it is garbage and should be cleaned up. I don’t condone the trash being left there. It is not a good look for the protesters to leave their trash behind. However, trying to make this into some kind of environmental disaster is hilariously overblown.

  14. This post is not about questioning the motives or credibility of DAPL protestors. It is about challenging the Governor’s overreach. As Daryl notes, we already have laws on the books to address every criminal activity mentioned by Greg. On what grounds can the Governor justify declaring any protest site to be a war zone subject to what sounds a lot like martial law?

    And polluting the water won’t be a crime once Scott Pruitt gets done with the EPA, so why even bring up that issue?

  15. mike from iowa

    Also the Governor of North Dakota called it an environmental disaster if not cleaned up.

    Maybe he should tax them for the waste….,no it isn’t crude oil so they can’t be taxed for the mess they made. Worked for Trans-Canada and bitumen.

  16. I have seen much worse in Sturgis, South Dakota and that was done by white guys. I don’t think there would be much said if it were done by a bunch of rednecks, but, boy howdy, when there are Indians involved, that just won’t stand.

  17. mike from iowa

    http://bismarcktribune.com/news/state-and-regional/cleanup-with-machines-is-emotional-for-some/article_932cda12-a120-5319-8f1b-d0cc3124a39f.html

    Keerist, them darn Redskins is helping to cleanup the mess they helped make and they aren’t being forced to do it. That’s gonna piss off a bunch of Drumpf kool-aid drinkers something fierce. Why can’t these bleeding hearts do anything right?

  18. I can understand the govenor’s concern. Yet I am reluctant to grant ‘war time’ powers to him over what started as a peaceful protest.

    Where do we draw the line between protesting and riot?

    What kind of powers should be granted to the governor?

    Or should a Special Session be called?

  19. mike from iowa

    Governors should not have any powers unless they are Democrats.

  20. This is the jobs promised by trump. There will be more this weekend hawking tee shirts and mugs with his mug on them. When Obama got into the the big office, he put people to work pronto. That Obama fellow clearly knew how to govern even from getting a crappy economy in 2008, courtesy of republican non governance https://www.theatlantic.com/business/archive/2016/11/barack-obamas-criminally-underrated-jobs-record/506594/

    Now we have this guy, has not done anything for a month just getting fatter.

  21. Most of this mess was left by “white guys.” It is silly for you libbies who claim to be color blind, and for Mr. C, to keep throwing the “indian” thing out there. You don’t get it. The Tribe wants these interloping villainous vandals, thugs, and ecological terrorists off their land. It does not matter their race.

    These people have created, as I warned you, a poop storm of tremendous million dollar proportions and are currently the biggest threat to the river they “claimed to want to protect.”

    What a bunch of hipocrites you are if you cannot acknowledge this. Your support of these criminals justifies our Governor in getting the ability, as I have long advocated, to BONK THESE PEOPLE IN THE HEAD AND PUT THEM DEEP IN PRISON.

    Do Not Destroy Private Property.
    Do Not Poop In Our River and Claim You Are Protecting it.

    This is the biggest setback for the libbie environmentalists ever. The Standing Rock Sioux Tribe weeps, they weep, that all these people came in and wrecked their legitimate concern.

    The Governor should have the power to have the National Guard put people who do this in concentration camps. I bet you a hat he gets it.

  22. To me the move of the pipeline route from Bismarck to the boundary of Standing Rock Reservation caused all this. It smacked of environmental racism. And now everyone gets to point fingers n say ‘see they were bad and now we have to clean it up and SD will pass laws to arrest anyone associated with these types of people’. yea, like grandmas n grandpa’s sick and tired of being bullied. During Keystone protests there were 11,000 arrests. Including farmers and ranchers. What happens when Daugaard has to arrest some local farmers and ranchers cause their sick of “eminent domain” for private foreign owned profit in the name of national security (ya right) and economic development? It could happen
    Those Nebraska farm wives were on the fight over Keystone. The Cowboy and Indian Alliance is different than what evolved at Standing Rock.

    It’s a mess at Cannonball but good people have and are working hard to clean it up. Many cows poop n pee in the big mo every day . And fertilizer runs in it often. We all know that. The Mo has handled bigger ‘environmental disasters’ than this.

    An environment disaster to me is earthquakes in Oklahoma caused by so much disorganized oil drilling. Or the Valdez or BP leak or Flint lead poisoning. Or uranium exposed throughout Western SD and Nebraska

    I agree with Corey, the laws are on the books already. This is just a public statement and an attempt to intimidate.

    I appreciate Mr. Freeds words.

  23. Environmental Terrorism is what happened in Nodakia. Nothing less. If it happens here, our cops will bonk the interlopers in the heads and throw them in the can for a long, long time. We are not North Dakota nice here when it comes to out-of-state terrorists who wreck our environment and pollute our water.

  24. barry freed

    Of all the AP photos that must exist; The most filmed and photographed protest in the history of the Dakotas, the RC Journal, who has largely ignored the Protest, chose to put a dumpster on page one.
    Many years ago at Yellow Thunder Camp, the RCJ put a photo of Yellow Thunder’s garbage rack on the front page. Letters of the Editor were, and are, predictable.

    Garbage, that protesters, like all of us, would have generated anyway, is somehow worse than the Pipeline break on the Yellowstone River two years ago that still renders the river water and wildlife unusable. No front page photos of a pristine mountain river running black with oil. No photos two years later of the oil encrusted banks and marshes. No story of the economic hardships by the people who made their living on the River. The people downstream of DAPL better wake up because any corporation that has a Government from the President down to the local Deputy Sheriff on their side, doesn’t care about preventing spills, there will be no consequences.

  25. Well, IM 22 needs to go all the way to the US supreme court as would SB 176. There was no “state of emergency” used for an excuse to kill IM 22 and SB 176 is a clear violation of the first amendment. If this can be used against a bunch of pipeline protesters it can be used against anyone protesting any action of the government in this state.

    For those railing over the mess left at the campsite in ND one needs to apply just a little rational thought. These people left during brutal winter weather conditions when anyone that bothers to go outside should realize cleanup wouldn’t be possible. If they were allowed to be back in the spring I’m sure they could have been induced to clean up the site!

  26. The bill is a “soft” declaration of martial law. It’s over-broad. It should receive heavy amending or die. Yet likely will pass as is in the fear-based South Dakota police-prosecutorial-prison industrial complex.

    This nation’s founding was on the back of raucous, righteous protests – protests that threw tea from the East India Company in a harbor, that burned the homes and farms of Tory sherriffs and of Tory sympathizers, that tarred and feathered Tories, that confiscated the weapons from Tories. This nation changed its civil rights stance, in part and against Dr. King’s wishes, due to violent protests of the daily injustices.

    “Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.” – Benjamin Franklin, 1755

  27. Thousands of Native elders in prayer and ceremony. Trying to influence the companies, praying for awareness for the good people wanting to just earn a living working, praying for the water and the land, praying for their grandchildren, communicating with each other about the needs of their communities, feeding anybody that walks by, asking forgiveness because they had to be in that situation. Praying for law enforcement.

    Showing love for each other. Honoring Veterans, praying with water, sharing songs. Greeting people from around the world. Doing what they could to make a difference. To create awareness. Because it’s their right as humans. They never went to get an MBA to create an llc that controls an llc that controls an llc that’s registered in Delaware that must pay a loan to a foreign bank(that’s now getting grief from its investors btw).

    And a couple hundred knot heads go to DAPL and create havoc. And everyone that was looking for an excuse can say ‘terrorists see!!!’

    National guardsmen taking selfies with people in cages behind them. People whom consciously and peacefully submitted to being arrested to take their beliefs into the great American court systems.

    “Public peace, health and safety”…… there’s not enough porta potties here folks… better move on or I’m going to create a one mile perimeter around here and put you in a dog cage if you disobey and enter.

    Grudznick. What if Tallys closed and you tweeted “this is unacceptable, I need my gravy, March at breakfast tomorrow” and 1000 people showed up, tore the place up, you tried to stop them, they kicked your ass, then Allender and the Gov sent you the bill? Would you leave a tip?

  28. Mr. Spike, I have not tweeted and if Talley’s was closed I’d get a ride over to the Campbell Street Cafe, but I would tell you that Talley’s is a private business and they may close any time they want, and anybody who interferes with it or trespasses there when they are closed is guilty of a crime and should be bonked in the head and thrown in jail.

  29. there, barry. fixed for yah. Happy? (I assume you were being sarcastic)

    The 2d Amendment is a dated idea … that was good in our Country’s infancy to stem uppity slaves, but now is a monster that causes riots, unhappiness, and deaths every hour. The Founders never envisioned an Amendment that could be so easily and effectively used against the populace. The situation is out of control with un-registered concealed weapons to kill without a license, and most times there is no way to trace them after the cowardly attack.
    *** Lives are so cheap, virtually anyone can afford to own and abuse them with Saturday Night Specious’ ©. They are everywhere, used to injure by criminals and deplorables alike.
    The Founders could not have foreseen NRA mass marketing handgunso children , and the Internet, used to disseminate NRA misinformation on a scale that injures by the millions. Concealed weapon assaultling wasn’t a problem 200 years ago as there weren’t enough people to make the politicians fearful. Now, holstered and pursed deadly weapons are a hornets nest of disease (gun violence) like cold virus’s [sic] and breeds discontent as it gains nothing for the armed citizens (see Az murder of 26 year old unarmed girlfriend by rich white boyfriend (70)).

    Thankfully, our Government, encouraged by self servers and blogger/control freaks, knows how we must live, what we may eat, what we may take for medicine, and what property we may own. They will gladly jail us for not complying with their edicts and beliefs, creating new gun laws when freedom or self-governing reveal their ugly heads. BE VERY AFRAID.qal Government bad. Concealed carry good. (C) NRA

    Not enough guns on the streets is something that has been suffered by corporations and politicians for too long, but they are willing to take on the cause. “At Will” concealed carry licensing will ensure local law enforcement can control killing in their towns with careful screening of applicants and halloween masks available in stores. This comes none too soon considering the crushing number of dangerous IM’s the Lawmakers were forced to extinguish.

    As good Americans we must eschew any gun not officially approved by King Trump and his State Minions. (C) Pixar

    (Porter: I call him Barry Carry and he hates it!)

  30. barry freed

    The outrage over the garbage is veiled racism to gin up an “approving base” to minimize the reaction to the atrocities planned for next Wednesday by the two Dakota Governors and Feds. At a camp of almost totally defenseless, non-aggressive people, made of mostly women and children with no assets and no protection by Law Enforcement. Positioned on a barren, frozen prairie and surrounded on all sides from above by Federal Troops armed with machine guns, bored, frustrated, and wanting this over so they can go home, will we be left with black and white photos of frozen bodies and a nondescript, virtually unkown monument, as are the records of Wounded Knee?

    Thankfully, Cory is nearby and can easily travel there as a Journalist to join the protest of the Federal Troops attacking the protestors.

  31. barry freed

    ALL RIGHT, CLYDE!!!

    I would contribute to a Go Fund Me plea to take the State’s use of “State of Emergency” actions through the Courts.

    Is there a Lawyer in the house?

  32. barry freed

    Leslie,
    Not one to quote the Bible, but…

    It is better to remain silent and be thought a fool, than to speak out and remove all doubt.

  33. Abe Lincoln “It is better to remain silent and be thought a fool, than to speak out and remove all doubt”

  34. MC, I see no role for the part-time Legislative branch in matters like this, at least not in immediate response. We have a full-time Executive for just such events.

    However, in this case, the Legislature has a role: kill SB 176, stop this Executive power grab. Consider that, under the war powers granted under SB 176, the Governor could have gotten wind of dangerous IM 22 protests, declared the Capitol grounds an emergency zone, and cleared the Legislature out for six months. You don’t want that.

  35. Garbage, of course, does not justify martial law.

  36. It’s not just garbage. It’s Ecological Warfare, an ecological disaster foisted upon the Nodakians and it’s all going to wash downstream. Imagine the damage this will do to sensitive species. This could extinguish the pallid sturgeon.

    Seriously, folks, these people were criminals and we don’t want them pulling the same crimes here.

  37. Robert McTaggart

    The goal of getting us off of oil is noble, but the overall execution has left something to be desired, particularly with the trash situation. I don’t think there is any plan to deliver the energy we will need if the protests are actually successful in getting us off of oil.

    Let’s say you want to replace 100,000 vehicles in South Dakota with electric vehicles…just to start with. At $40,000 per vehicle, that is 4 billion dollars.

    If you assume that each car is driven 15,000 miles per year and each gets 100 MPGe (MPG equivalent), you need to produce 1.8 X 10^15 Joules of new energy per year on top of what we are making today.

    Not accounting for transmission losses, a single 60 MW small modular reactor would do the job. Likewise if the capacity factor for wind is 20%, then you will require about 150 2-MW turbines…even more if the sites with the best wind have already been taken and you must work at a lower capacity.

  38. Robert McTaggart

    In South Dakota we generated 3.1 X 10^15 joules of electricity in November 2016.

    So assuming I can just multiply that by 12…then based on statistics for South Dakota only, for every 100,000 electric vehicles that we could power each year for 15,000 miles each year, we need to generate another 5% more in electricity.

  39. Robert McTaggart

    The bad news is that there are roughly 1.2 million registered vehicles in the state, which means generating 60% more electricity each year.

    Could be more if some electric vehicles were larger and got less than 100 MPGe, and could be less if we made some gains with efficiency or some home solar. But hopefully that gives you a ballpark idea of the problem.