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.
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.