Mimesis Law
21 November 2019

How To Catch A North Dakota Lawmaker’s Attention

January 18, 2017 (Fault Lines) — North Dakota is having problems due to people protesting a pipeline being built to pump oil across the state. As the Washington Post reports, the protests have brought international scrutiny and a mounting police bill. The article notes a couple of bright ideas North Dakota’s legislators have come up with to combat the problems:

So they’ve drafted legislation in direct response to what’s happening near the Standing Rock Sioux Indian Reservation. One bill would make it illegal for adults to wear masks. Another would let the state sue the federal government for the cost of policing the pipeline protests.

It’s two very different approaches, really.

The no-masks approach places blame with those pesky protestors. If you think about it, it’s the more old-fashioned approach. Protestors are disrupting things, so lawmakers pass a law stopping them from doing that. As is often the case, legislators surely would’ve preferred to have outlawed protesting, but some advisor probably started ranting about civil liberties, and they eventually realized they’d have to be a bit more clever about it.

Authorities have learned over the years that laws about trespassing, obstructing a public thoroughfare, disorderly conduct, and countless other things that don’t seem on their face to violate people’s rights can be used to chill speech and conduct that would otherwise be constitutionally protected. If people exercising their rights happen to disturb people, claim they’re too loud and that it isn’t the content but the sheer volume of the speech that’s the problem. Or tell them to leave and pretend it’s their presence without permission that’s the issue. It’s a great way to stop expressive speech and conduct, a way that courts are happy to pretend isn’t related to stopping expressive speech and conduct.

A law prohibiting masks isn’t terribly clever at all. If the law was going to be applied fairly, the use of a necessity defense by defendants caught wearing ski masks in the freezing cold would be ubiquitous. Of course, they aren’t going to apply it fairly. If the law passes, the mask-wearers who get tickets will probably be exclusively ones who happen to be protesting. Unless the law is quite narrow, maybe North Dakota will find itself having outlawed hockey goalies from protecting their faces and actors wearing masks in theatre productions. An anti-mask law might have more than a few constitutional problems aside from the intentional constitution violation at its heart.

Compared to criminalizing masks, allowing the state to sue the federal government is almost a breath of fresh air. It shifts the blame from the protestors to the people responsible for allowing the conditions that gave rise to the protestors. The problem is that it doesn’t involve a state messing with relatively powerless individuals, but rather with the mighty federal government, the biggest, toughest, meanest adversary in the world. If the legislation passes, expect North Dakota to quickly start looking for ways to supplement its complex, difficult suits against the feds with new ways to pick on the little guys.

One legislator, however, came up with a very different approach:

Now, a legislator wants to give motorists a pass if they happen to hit one of the protesters.

House Bill 1203 was sponsored by state Rep. Keith Kempenich, the owner of a trucking company. It would extend protections for drivers who accidentally injure or kill a person obstructing traffic on a public road or highway.

Absent any background information, it would be hard to tell what Kempenich intended to do with the law. It might seem like an attempt to stop protesting altogether by declaring it open hunting season on protesters and letting irritated motorists stop the protesting nuisance. That would certainly be a novel, albeit troubling, approach. However, if it’s just to prevent the most aggressive tactics of protestors or stop ordinary citizens from getting in trouble when things go awry, maybe it’s not a bad law. That does seem to be the intention:

As the powers that be parse out the details, he said his bill is aimed at the aggressive tactics of some protesters who swarm passing vehicles and block traffic to get their message heard.

“This bill is not about oil. We ranch. We’re conservationists too,” he said. “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.”

Unfortunately, Kempenich’s reason for caring about the poor people inconvenienced by protesters is sort of thing that reinforces the worst things people think about legislators:

One distraught driver in particular caught Kempenich’s attention — his 72-year-old mother-in-law. She was driving on Highway 1806 when suddenly she found herself swarmed by protesters, chanting, holding signs and, she told her legislator son-in-law, jumping in front of her car.

That’s where Kempenich got the idea for the legislation. He stressed that he is not trying to legalize vehicular manslaughter in the state of North Dakota. Drivers still have to do all they can to avoid protesters.

But the law says protesters have to do their part as well to stay on sidewalks and road shoulders. If they don’t, Kempenich told The Post, the law should favor law-abiding motorists.

Suddenly, Kempenich realized the law might not give every advantage to someone who matters to him. There are, without a doubt, countless problems North Dakota’s lawmakers could be addressing, but very few of those involve their mothers-in-law. Never underestimate how much they care and how hard they’ll work when something hits really close to home.

If a protester purposefully jumped in front of a car right now and died after getting hit, it isn’t like North Dakota law doesn’t already provide the motorist with a defense. Murder requires intentionally or knowingly causing death. Manslaughter requires recklessness, and negligent homicide obviously requires negligence. If Kempenich’s mother-in-law is a terrible driver or is cruising around hoping to run over some protesters and have an easy defense later on, then maybe his legislation will do her some good. Otherwise, it’s not going to help her much. She’s unlikely to be convicted.

There’s a good chance Kempenich’s proposal is more about sending a message than fixing a problem with the law. Legislators love the idea of deterrence. They like to think they have an incredible amount of control over human behavior. In some cases they might, but never as much as they think. Kempenich might just want to tell the protesters that they better watch themselves because they’re not going to have anyone else to blame if they get hurt. Still, he only seems to care about the message because the protestors struck close to home.

None of North Dakota’s lawmakers come out of this looking good. Some of them look ridiculous by resorting to making yet another silly thing illegal. Some of them will eventually look stupid for thinking they can take on the federal government and make it worthwhile. Kempenich is in a different league, though. He didn’t just propose a law that’s probably pointless. He also made it abundantly clear he only cared about it in the first place because the law might have helped someone close to him had things turned out differently.

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  • william the stout
    18 January 2017 at 6:23 pm - Reply

    I’m retired now, but I’ve got >30 years in the energy business. The protestors are wrong on the facts and wrong on the science. And the protest itself has blossomed into things (“End hydrocarbon useage!!!) that aren’t terribly practical.

    That said, passing laws to separate people from their first amendment rights of assembly and protest is bullshit. And making it ok to physically harm somebody, even while saying that “well, I don’t really mean you should do it” is bullshit squared.

    The state has a point that the feds have pretty much screwed this situation to death – “you’ve got a permit, now you don’t, now you do again, oops not now” – but does a state law allowing a state to sue the federal government really have any teeth? Couldn’t you file a suit (whether it would survive or not) without one?