916 N.W.2d 626 (N.D. 2018), 20170374, State v. Simon

Docket Nº:20170374, 20170404
Citation:916 N.W.2d 626, 2018 ND 197
Opinion Judge:Tufte, Justice.
Party Name:STATE of North Dakota, Plaintiff and Appellee v. Alexander SIMON, Defendant and Appellant State of North Dakota, Plaintiff and Appellee v. Mary Redway, Defendant and Appellant
Attorney:Brian D. Grosinger (argued) and Chase R. Lingle (appeared), Assistant State
Judge Panel:Jerod E. Tufte, Daniel J. Crothers, Lisa Fair McEvers, Jon J. Jensen, Gerald W. VandeWalle, C.J.
Case Date:August 28, 2018
Court:Supreme Court of North Dakota

Page 626

916 N.W.2d 626 (N.D. 2018)

2018 ND 197

STATE of North Dakota, Plaintiff and Appellee


Alexander SIMON, Defendant and Appellant

State of North Dakota, Plaintiff and Appellee


Mary Redway, Defendant and Appellant

Nos. 20170374, 20170404

Supreme Court of North Dakota

August 28, 2018

Page 627

[Copyrighted Material Omitted]

Page 628

Appeals from the District Court of Morton County, South Central Judicial District, the Honorable Thomas E. Merrick, Judge.

Brian D. Grosinger (argued) and Chase R. Lingle (appeared), Assistant State’s Attorneys, Mandan, North Dakota, for plaintiff and appellee.

Samuel Saylor (argued), Mandan, North Dakota, and Bruce D. Nestor (on brief), Minneapolis, Minnesota, for defendants and appellants.


Tufte, Justice.

[¶ 1] Mary Redway and Alexander Simon appeal from criminal judgments entered after the district court found Redway guilty of disorderly conduct and Simon guilty of disorderly conduct and physical obstruction of a government function. They argue their participation in protests against the Dakota Access Pipeline was constitutionally protected activity that should have been excluded from evidence and there was insufficient evidence to support their convictions. We affirm.


[¶ 2] Redway and Simon participated with a group of about 150 other individuals in a protest against the Dakota Access Pipeline on October 22, 2016. The protest initially started near access point 128 by State Highway 1806 in southern Morton County. According to Bryan Niewind, a captain with the North Dakota Highway Patrol, he was one of four forward field commanders running day-to-day operations from August 11, 2016, through February 2017 as part of law enforcement’s response to protests against the pipeline. Niewind testified that he initially responded to a "Code Red" on October 22, 2016, identifying protest activity at access point 126 along the pipeline route. Niewind testified that while responding to that incident, he received a report of a large gathering of individuals near access point 128 along the

Page 629

pipeline route and he responded to that report.

[¶ 3] According to Niewind, access point 128 was the location where the pipeline would cross under State Highway 1806. He testified that he was aware of prior damage to construction equipment by some protesters and that he had concerns for the safety of the construction site and equipment and for the safety of the people in the area, including construction workers, private security officers, law enforcement officers, and protesters. According to Niewind, a group of about 150 protesters entered private land near access point 128 along a path cleared for the pipeline easement and walked in a northwesterly direction toward construction equipment. He testified there were about 40 to 60 law enforcement officers at the scene and the officers initially established a skirmish line about a mile and a half from State Highway 1806. Niewind described a skirmish line as a straight line formation with officers standing shoulder-to-shoulder about five feet apart to stop people from advancing past the officers. Niewind testified the protesters tried to flank the officers to the south and the officers regrouped and established a second skirmish line to stop the protesters. According to Niewind, officers made multiple announcements over megaphones and loudspeakers, informing the protesters that they were trespassing and were subject to arrest unless they returned to State Highway 1806. Niewind testified that some protesters did not comply with the announcements and continued advancing in an attempt to flank the officers in a northwesterly direction. Niewind testified the officers established a third skirmish line and more than one hundred protesters were arrested: We were able to stop the progress of that large group, and we stopped them. Again, we started to make announcements that everybody was criminally trespassing, and at that point in time it was determined that we were going to start making arrests.


The reason we started making arrests was we had given them an opportunity to leave, they had failed to heed that warning. They had been given warnings that they were criminally trespassing but if they left, they could— we were going to allow them to do that, and that was when we set up the second skirmish line.

They failed to heed that warning, continued to march further away from an area where we had asked them to go back to, and we felt that we needed to start making arrests otherwise we would just be following them around on this property all day.

[¶ 4] According to another field commander, Bismarck Police Lieutenant Jason Stugelmeyer, one protester grabbed Stugelmeyer’s pepper spray at the third skirmish line, which resulted in Stugelmeyer being sprayed in the face. Stugelmeyer also testified the skirmish lines were established because of concerns about the nature of the protesters’ prior behavior, including assaults and damages to construction equipment. Both Redway and Simon were identified in pictures of the group of protesters at the third skirmish line, and a picture showed Simon with his arms linked with other protesters as arrests were being made at the third skirmish line.

[¶ 5] The State initially charged several protesters, including Redway and Simon, with criminal trespass and engaging in a riot. The State subsequently dismissed those charges under N.D.R.Crim.P. 48 and filed new complaints against several protesters, including Redway and Simon, charging them with physical obstruction of

Page 630


To continue reading