Case: Dundon v. Kirchmeier

22-01246 | U.S. Court of Appeals for the Eighth Circuit

Filed Date: Jan. 28, 2022

Closed Date: Nov. 3, 2023

Clearinghouse coding complete

Case Summary

This is a putative class action about excessive police force used to disperse protestors of the Dakota Access Pipeline (DAPL). On November 20, 2016, the plaintiffs– Native Americans and other concerned citizens who referred to themselves as "water protectors"--gathered to pray and protest the DAPL at Backwater Bridge in North Dakota. They were met by local police forces who were armed with specialty impact munitions, teargas, and water cannons. Without warning, the police began to use force to …

This is a putative class action about excessive police force used to disperse protestors of the Dakota Access Pipeline (DAPL). On November 20, 2016, the plaintiffs– Native Americans and other concerned citizens who referred to themselves as "water protectors"--gathered to pray and protest the DAPL at Backwater Bridge in North Dakota. They were met by local police forces who were armed with specialty impact munitions, teargas, and water cannons. Without warning, the police began to use force to disperse the crowd, injuring over 200 demonstrators in the process. Police also arrested approximately 100 people who were peacefully protesting or were engaged in prayer ceremonies. 

The plaintiffs filed their complaint in the United States District Court for the District of North Dakota on November 28, 2016. The plaintiffs sought to represent a class of similarly situated protestors, but class certification was never granted. The case was initially assigned to Chief Judge Daniel L. Hovland. The plaintiffs brought this action against Morton County, North Dakota and their Sheriff's Department; Stutsman County, North Dakota and their Sheriff's Department; and the City of Mandan, North Dakota. They also included 100 unnamed individual law enforcement officers as defendants. 

The plaintiffs sought damages and injunctive relief under 42 U.S.C. §1981 and §1983. The plaintiffs asserted violations of the First, Fourth, and Fourteenth Amendments in the form of retaliation for constitutionally protected activities, unreasonable use of force, unconstitutional policing policies by the defendant agencies, and unequal protection under the law. They also included state law claims for assault and battery as well as negligence by the defendants against all members of the class.The plaintiffs sought declaratory and injunctive relief declaring the defendants’ actions unlawful and enjoining them from using the same methods of crowd dispersal in the future. The case was assigned to Judge Daniel L. Hovland.

The same day the lawsuit began, the plaintiffs filed a motion for a temporary restraining order and preliminary injunctive relief. The plaintiffs requested an order prohibiting the defendants from using excessive force in responding to the pipeline protests and prohibiting the use of specialty impact munitions, explosive grenades, chemical agents, sound cannons, directed energy devices, and water cannons or hoses, as a means of crowd dispersal. The court denied the plaintiffs’ motion for a temporary restraining order on December 1, 2016, and denied their motion for a preliminary injunction approximately three months later. Judge Hovland denied both motions because the plaintiffs failed to certify in writing that they had made efforts to notify the defendants as required by FRCP 65(B)(1)(b).

On February 22, 2017, the court stayed proceedings as the plaintiffs filed an interlocutory appeal to the U.S. Court of Appeals for the Eighth Circuit regarding the district court’s denial of a preliminary injunction. That stay was lifted on January 10, 2018, after the Eighth Circuit affirmed the district court’s denial in a cursory per curiam opinion. 701 Fed.Appx. 538. The court found that there was not an abuse of discretion by Judge Hovland and agreed with his finding. 

On February 27, 2018, the plaintiffs filed an amended complaint containing information about government actions relating to the DAPL subsequent to their initial filing. The plaintiffs alleged that approximately three months after the first complaint, the defendants again engaged with protestors and injured them with water cannons and specialty impact munitions. The first amended complaint also included the addition of state law claims against the defendants for assault and battery and negligence.

The defendants initially filed a motion to dismiss on April 6, 2018. Two years later, this case was reassigned to Judge Daniel Traynor, who converted the defendant’s motion to one for summary judgment on September 10, 2020 in order to allow time for discovery. The defendants then filed an interlocutory appeal to the Eighth Circuit, arguing that the district court erred by refusing to rule on whether the officials were protected by qualified immunity. That appeal was dismissed by the Eighth Circuit for lack of jurisdiction. 2020 WL 9211289.

On December 29, 2021, Judge Traynor granted the defendants’ motion for summary judgment. Regarding the plaintiffs’ Fourth Amendment claim, the court found that no seizure occurred because the plaintiffs were free to leave and were not being herded in any particular direction. In the alternative, the court also held that the officers would have been protected by qualified immunity. The court also found the plaintiffs’ excessive force and state law claims to be without merit, as the officers’ actions were objectively reasonable; again the court concluded in the alternative that the officers would have been shielded by qualified immunity. Finally, because the court found that the officers did not act because of any of the plaintiffs’ political or religious beliefs, it concluded that the plaintiffs’ remaining Equal Protection Clause and First Amendment claims were without merit. 577 F.Supp.3d 1007.

On January 28, 2022, the plaintiffs filed an appeal with the Eighth Circuit. On July 11, 2022, the case was screened and selected for oral argument. As of November 2022, the case is ongoing.

 

Summary Authors

Claire Butler (11/6/2022)

Taylor Hopkins (4/18/2024)

People

For PACER's information on parties and their attorneys, see: https://www.courtlistener.com/docket/67358272/parties/vanessa-dundon-v-kyle-kirchmeier/


Attorney for Plaintiff
Attorney for Defendant

1-100, Does (North Dakota)

Alamuddin, Sari M. (North Dakota)

Alt, Constance M (North Dakota)

Bakke, Grant (North Dakota)

Bakke, Randall J. (North Dakota)

Expert/Monitor/Master/Other

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Documents in the Clearinghouse

Document
1

1:16-cv-00406

Civil Rights Class Action Complaint for Damages and Injunctive and Declaratory Relief

U.S. District Court for the District of North Dakota

Nov. 28, 2016

Nov. 28, 2016

Complaint
41

1:16-cv-00406

Order

U.S. District Court for the District of North Dakota

Dec. 22, 2016

Dec. 22, 2016

Order/Opinion
99

1:16-cv-00406

Order Denying Plaintiffs' Motion for Preliminary Injunction

U.S. District Court for the District of North Dakota

Feb. 7, 2017

Feb. 7, 2017

Order/Opinion

2017 WL 2017

22-01246

Per Curiam

Oct. 18, 2017

Oct. 18, 2017

Order/Opinion

701 Fed.Appx. 701

129

1:16-cv-00406

First Amended Civil Rights Class Action Complaint for Damages and Injunctive and Declaratory Relief

U.S. District Court for the District of North Dakota

Feb. 27, 2018

Feb. 27, 2018

Complaint
151

1:16-cv-00406

Order Converting Defendants' Motion to Dismiss Into Motion for Summary Judgment and Deferring Ruling on the Same, Granting Plaintiffs' Motion to Conduct Discovery, and Finding as Moot Plaintiffs' Motion for Hearing

U.S. District Court for the District of North Dakota

Sept. 10, 2020

Sept. 10, 2020

Order/Opinion

2020 WL 2020

152

1:16-cv-00406

Letter to Court

U.S. District Court for the District of North Dakota

Sept. 17, 2020

Sept. 17, 2020

Pleading / Motion / Brief
286

1:16-cv-00406

Order Granting Motion For Summary Judgment

U.S. District Court for the District of North Dakota

Dec. 29, 2021

Dec. 29, 2021

Order/Opinion

577 F.Supp.3d 577

290

22-01246

Opinion

Nov. 3, 2023

Nov. 3, 2023

Order/Opinion

85 F.4th 85

Resources

Docket

See docket on RECAP: https://www.courtlistener.com/docket/67358272/vanessa-dundon-v-kyle-kirchmeier/

Last updated April 16, 2024, 11:29 a.m.

ECF Number Description Date Link Date / Link
804747084

28(j) citation filed by Amicus on Behalf of Appellant(s) National Police Accountability Project w/service 05/03/2023 - FOR CAL [5272885] [22-1246] (LB) [Entered: 05/03/2023 07:22 PM]

May 3, 2023

May 3, 2023

PACER
804747656

MOTION to participate in oral argument., filed by Mr. Michael A. Avery for Amicus on Behalf of Appellant(s) National Police Accountability Project, Ms. Lauren Bonds for Amicus on Behalf of Appellant(s) National Police Accountability Project and Ms. Eliana Machefsky for Amicus on Behalf of Appellant(s) National Police Accountability Project w/service 05/04/2023. [5273175] [22-1246] (LB) [Entered: 05/04/2023 12:09 PM]

May 4, 2023

May 4, 2023

PACER
804748701

JUDGE ORDER: The motion of National Police Accountability Project for leave to participate in oral argument with time ceded by the appellants is granted. Argument time is allotted as follows:Appellants – fifteen minutes, including any rebuttal timeAmicus curiae NPAP – five minutes with no rebuttal timeAppellees – twenty minutes[5273175-2] Hrg May 2023 [5273638] [22-1246] (MR) [Entered: 05/05/2023 01:14 PM]

May 5, 2023

May 5, 2023

PACER
804748953

Response of Appellees Mr. Kyle Kirchmeier, Morton County, City of Mandan, Mr. Jason Ziegler, Stutsman County and Mr. Chad Kaiser to 28(j) citation, [5272885-2], filed by National Police Accountability Project, 28(j) citation, [5272885-3], filed by National Police Accountability Project. w/service 05/05/2023 - FOR CAL [5273746] [22-1246] (SAG) [Entered: 05/05/2023 02:54 PM]

May 5, 2023

May 5, 2023

PACER

Response of Appellees City of Mandan, Mr. Chad Kaiser, Mr. Kyle Kirchmeier, Morton County, Mr. Jason Ziegler and Stutsman County to 28(j) citation, [5272885-2], filed by National Police Accountability Project, 28(j) citation, [5272885-3], filed by National Police Accountability Project. w/service 05/05/2023 - FOR CAL 5274165 [22-1246]ATTACHED DOCUMENT LOCKED AND REFILED BY COUNSEL AS 28(j) CITATION--[Edited 05/08/2023 by MR] (SAG) [Entered: 05/05/2023 08:14 PM]

May 5, 2023

May 5, 2023

PACER
804750100

28(j) citation filed by Appellees City of Mandan, Mr. Chad Kaiser, Mr. Kyle Kirchmeier, Morton County, Stutsman County and Mr. Jason Ziegler w/service 05/05/2023 - FOR CAL [5274167] [22-1246] (SAG) [Entered: 05/05/2023 08:19 PM]

May 5, 2023

May 5, 2023

PACER
804750109

Response of Amicus on Behalf of Appellant(s) National Police Accountability Project to 28(j) citation, [5274167-2], filed by City of Mandan, Mr. Chad Kaiser, Mr. Kyle Kirchmeier, Morton County, Stutsman County and Mr. Jason Ziegler, 28(j) citation for Calendar, [5274167-3], filed by City of Mandan, Mr. Chad Kaiser, Mr. Kyle Kirchmeier, Morton County, Stutsman County and Mr. Jason Ziegler. w/service 05/06/2023 - FOR CAL [5274170] [22-1246] (LB) [Entered: 05/06/2023 01:09 PM]

May 6, 2023

May 6, 2023

PACER
804750527

MOTION for continuance of oral argument, filed by Attorney Ms. Melinda Longford Power for Appellants Ms. Mariah Marie Bruce, Mr. David Demo, Mr. Guy Dullknife, III, Ms. Vanessa Dundon, Mr. Frank Finan and Ms. Crystal Wilson w/service 05/08/2023. [5274508] [22-1246] ATTACHED EXHIBIT A--[Edited 05/08/2023 by MR] (MLP) [Entered: 05/08/2023 12:15 PM]

1 Emergency Motion to Take Case Off Calendar and Reschedule Oral Argument

View on PACER

2 Exhibit A

View on PACER

May 8, 2023

May 8, 2023

804750767

JUDGE ORDER: The motion to remove this case from the argument calendar for May 10 has been considered by the court and is granted. Hrg May 2023 [5274663] [22-1246] (MR) [Entered: 05/08/2023 03:06 PM]

May 8, 2023

May 8, 2023

PACER

CASE REMOVED FROM CALENDAR. 5274694 [22-1246] (MR) [Entered: 05/08/2023 03:42 PM]

May 8, 2023

May 8, 2023

PACER
804822363

ARGUMENT RESPONSE/APPEARANCE FORM filed by Mr. Shawn A. Grinolds for City of Mandan, Mr. Chad Kaiser, Mr. Kyle Kirchmeier, Morton County, Stutsman County and Mr. Jason Ziegler for argument in September, at the U.S. Courthouse in St. Louis, Missouri. [5308218] [22-1246] (SAG) [Entered: 08/21/2023 11:27 AM]

Aug. 21, 2023

Aug. 21, 2023

PACER

ARGUED & SUBMITTED in St. Louis to Judges Steven M. Colloton, Roger L. Wollman, Duane Benton on 09/19/2023.Ms. Rachel Lederman for Appellants Ms. Vanessa Dundon, Ms. Crystal Wilson, Mr. David Demo, Mr. Guy Dullknife, III, Ms. Mariah Marie Bruce and Mr. Frank Finan.Mr. Michael A. Avery for Amicus on Behalf of Appellant(s) National Police Accountability Project.Mr. Shawn Grinolds for Appellees Mr. Kyle Kirchmeier, Morton County, City of Mandan, Mr. Jason Ziegler, Stutsman County and Mr. Chad Kaiser. Rebuttal by Ms. Rachel Lederman for Ms. Vanessa Dundon, Ms. Crystal Wilson, Mr. David Demo, Mr. Guy Dullknife, III, Ms. Mariah Marie Bruce and Mr. Frank Finan RECORDED. Click Here To Listen to Oral Argument 5317970 [22-1246] (MR) [Entered: 09/19/2023 03:28 PM]

Sept. 19, 2023

Sept. 19, 2023

PACER
804842866

LETTER from Appellees City of Mandan, Mr. Chad Kaiser, Mr. Kyle Kirchmeier, Morton County, Stutsman County and Mr. Jason Ziegler regarding Correction of misstatements of case holdings in Brief of Defendants-Appellees. w/service 09/20/2023 [5318108] [22-1246]LETTER - FOR CAL. --[Edited 09/21/2023 by MR] (SAG) [Entered: 09/20/2023 09:30 AM]

Sept. 20, 2023

Sept. 20, 2023

PACER
804872530

OPINION FILED - THE COURT: Steven M. Colloton, Roger L. Wollman and Duane Benton AUTHORING JUDGE:Steven M. Colloton (PUBLISHED) [5332606] [22-1246] (CRJ) [Entered: 11/03/2023 09:06 AM]

Nov. 3, 2023

Nov. 3, 2023

PACER
804872546

JUDGMENT FILED - The judgment of the Originating Court is AFFIRMED in accordance with the opinion STEVEN M. COLLOTON, ROGER L. WOLLMAN and DUANE BENTON Hrg Sep 2023 [5332612] [22-1246] (CRJ) [Entered: 11/03/2023 09:28 AM]

Nov. 3, 2023

Nov. 3, 2023

PACER
804880596

MOTION for bill of costs in the amount of 636.60, filed by Attorney Mr. Shawn A. Grinolds for Appellees City of Mandan, Mr. Chad Kaiser, Mr. Kyle Kirchmeier, Morton County, Stutsman County and Mr. Jason Ziegler w/service 11/16/2023. [5336349] [22-1246] (SAG) [Entered: 11/16/2023 11:24 AM]

Nov. 16, 2023

Nov. 16, 2023

PACER

On December 1, 2016, the Federal Rules of Appellate Procedure were amended to require a certificate of compliance for motions filed under [Rule 27], certifying that the document complies with the type-volume limitations and stating the number of words in the document. Your recently filed motion did not contain this certificate of compliance. No action will be taken on your motion for bill of cost, [5336349-2], submitted by Shawn A. Grinolds in 22-1246, pending the filing of a certificate of compliance using the 'Certificate of Compliance' event. Please do not refile your motion. [22-1246] (HAG) [Entered: 11/16/2023 02:58 PM]

Nov. 16, 2023

Nov. 16, 2023

PACER
804881034

CERTIFICATE OF COMPLIANCE filed by Attorney Mr. Shawn A. Grinolds for Appellees City of Mandan, Mr. Chad Kaiser, Mr. Kyle Kirchmeier, Morton County, Stutsman County and Mr. Jason Ziegler correcting [5336349-2] motion filed by Attorney. [5336528] [22-1246] (SAG) [Entered: 11/16/2023 03:43 PM]

Nov. 16, 2023

Nov. 16, 2023

PACER
804887735

CLERK ORDER: Granting [5336349-2] motion for bill of cost filed by Mr. Shawn A. Grinolds. Amount of costs granted: $636.60 [5339774] [22-1246] (HAG) [Entered: 11/29/2023 12:15 PM]

Nov. 29, 2023

Nov. 29, 2023

PACER
804887741

MANDATE ISSUED. [5339781] [22-1246] (HAG) [Entered: 11/29/2023 12:22 PM]

Nov. 29, 2023

Nov. 29, 2023

PACER

Case Details

State / Territory: North Dakota

Case Type(s):

Policing

Environmental Justice

Key Dates

Filing Date: Jan. 28, 2022

Closing Date: Nov. 3, 2023

Case Ongoing: No

Plaintiffs

Plaintiff Description:

The plaintiffs are a group of nine individuals seeking to represent a class of "water protectors" injured by law enforcement while protesting the Dakota Access Pipeline.

Plaintiff Type(s):

Private Plaintiff

Public Interest Lawyer: No

Filed Pro Se: No

Class Action Sought: Yes

Class Action Outcome: Mooted before ruling

Defendants

Morton County, County

Stutsman County (Stutsman), County

City of Mandan (Morton), City

Defendant Type(s):

Law-enforcement

Jurisdiction-wide

Case Details

Causes of Action:

42 U.S.C. § 1983

42 U.S.C. § 1981

State law

Ex parte Young (federal or state officials)

Constitutional Clause(s):

Unreasonable search and seizure

Free Exercise Clause

Freedom of speech/association

Equal Protection

Available Documents:

Trial Court Docket

Complaint (any)

Any published opinion

Outcome

Prevailing Party: Defendant

Nature of Relief:

None

Source of Relief:

None

Issues

General/Misc.:

Pattern or Practice

Personal injury

Retaliation

Discrimination Basis:

Religion discrimination

Affected Race(s):

American Indian/Alaskan Native

Policing:

Excessive force