PIERRE, S.D. (KELO) — State senators gave final approval to legislation Thursday from Governor Kristi Noem that would make rioting and ‘riot boosting’ a crime in South Dakota.
The vote was 27-8. HB 1117 now goes to the governor for her expected approval.
A second bill, HB 1199, that would change some parts of 1117 meanwhile had come out of the Senate Commerce and Energy Committee a few hours earlier.
“The issue of riots isn’t new to South Dakota,” Senator Lee Schoenbeck, a Watertown Republican, said.
He said there was approximately $37 million of damage done during an anti-pipeline protest in North Dakota a few years ago.
The Republican governor’s legislation is intended to protect state and county governments against violence that could result during construction of the Keystone XL pipeline through western South Dakota.
Schoenbeck, a lawyer, said the bill likewise protects First Amendment free-speech protection.
U.S. District Judge Lawrence Piersol ruled last year that some riot-related laws were likely to be found unconstitutional. Those included a riot-boosting law passed at Noem’s request last year, as well as older laws that were in place for many years.
Schoenbeck said 1199 was a companion to 1117. He said there are two bills, so the governor can hold 1117, while 1199 goes back to the House for final approval.
“I believe Judge Piersol was very thorough and very clear in his analysis,” Senator Craig Kennedy, a Yankton Democrat who too is a lawyer, said.
The problem with the governor’s new bill is that “an equally unclear word” — urged — will replace three word that the judge found unclear, according to Kennedy. “The question I would ask everyone in here is what’s the difference between ‘encourage’ and ‘urge?’ I don’t see it,” Kennedy said.
Kennedy also pointed out that ‘riot-boosting’ isn’t defined in Noem’s new bill and that damages could be sought for a third party. He questioned whether legislators worked for a foreign oil company or for the people of South Dakota.
Senator Red Dawn Foster, a Pine Ridge Democrat, asked whether there was a dollar limit on the damages. Schoenbeck said no. Foster then asked whether a five-dollar damage to property could be considered a felony.
“There is no limit on civil damages that can be pursued,” Schoenbeck said. But he asked her to clarify the crime. “I don’t see that the bill has a dollar amount,” Schoenbeck said.
Senate Democratic leader Troy Heinert of Mission asked Schoenbeck who would have urged a riot if a private security person’s dog got loose, bit someone in the crowd, people became upset and a riot happened.
“That’s a factually intensive scenario,” Schoenbeck replied. He said it would come to “who threw what” during a riot and that intentionally siccing a dog on someone was a crime in itself. A peaceful protest and a riot are separate things, he said.
Heinert said his guess is the law would be used against people in the back.
“Nobody is calling for a riot,” Heinert said. He added, “I think this goes both ways. I just don’t think it will be implemented both ways.”
Foster, a member of the Oglala Sioux Tribe, said the law would be used against indigenous people and would have a chilling effect on First Amendment rights.
“It shapes the way we’re viewed by law enforcement and it shapes the way we’re viewed in the media,” she said.
Schoenbeck said “terrorists” acted against law enforcement in North Dakota. He said the federal judge struck the riot crimes from South Dakota law and the governor’ legislation would put better riot laws into place.
“If you want to peacefully protest, you should like this bill,” Schoenbeck said.
The American Civil Liberties Union of South Dakota issued a statement after the vote calling the legislation “unnecessary” and said it “would like to see a comprehensive plan that prevents the escalation of any tension between peaceful protestors and law enforcement.”
Lawyers for the ACLU filed the lawsuit that led to Judge Piersol’s decision.