House passes ‘riot boosting’ bill amid protests

Published: Feb. 19, 2020 at 5:39 PM CST
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The South Dakota House passed a bill Tuesday pushed by Gov. Kristi Noem that would revamp the state’s riot laws with criminal and civil penalties for those who urge rioting.

The push has sparked conflict between Noem and Native American tribal members, who say the law is an attempt to “silence” peaceful protests against the Keystone XL pipeline. The governor argues that the law does not apply to peaceful protests and is intended to enforce the rule of law in the state. Noem has attempted to foster cooperation on other issues in the last week.

As the House passed the bill, a protester named Tasina Smith shouted from a balcony overlooking the floor of the House, yelling that law enforcement at Standing Rock had used laws on “incitement to riot” against people who were peacefully protesting. She was escorted out of the room by security.

Others demonstrated before the vote in the central hall of the Capitol building.

“Kristi Noem, we are not a riot,” nearly a dozen protesters chanted as they danced to a drumbeat and held banners to protest the “riot boosting” bill. The protesters demonstrated for several minutes before Capitol police asked them to leave because they did not have a permit for the event.

A judge found parts of last year’s “riot boosting” laws to be unconstitutional, in part because they were aimed at demonstrations against the Keystone XL pipeline. Noem has made it clear that this is not the case this year. But several lawmakers said they were in favor of this year’s bill because it would prevent situations like what happened at Standing Rock when people demonstrated against the Dakota Access Pipeline.

The state coined the term “riot boosting” last year as it paved the way for the state, counties or other municipalities to make people or organizations liable for rioting or inciting riots. The governor said the civil penalties would make it possible for the state or counties to recoup damages from riots.

“It’s pretty simple, it’s about upholding the rule of law,” said Rep. Jon Hansen, a Dell Rapids Republican. He said that people are welcome to peacefully protest and the the law is only aimed at “those who would burn, those who would destroy, those who would assault.”

The bill is not that simple, said Rep. Peri Pourier, a Democrat from Pine Ridge and a member of the Oglala Sioux Tribe. She argued tribal members would see it as “weaponization” of the law against them.

“If I am a law-abiding citizen and there is a chance that I could spend five to ten years in the state penitentiary and lose my voting rights, it is going to deter me from protesting,” she said.

Rep. Tim Rounds, a Pierre Republican, broke with his party to vote against the bill because he felt the punishments were too severe. The bill makes “incitement to riot” a class five felony, punishable by up to five years in prison and a $10,000 fine.

Noem has argued that the bill uses the “narrowest” definitions of “incitement to riot” to protect people and property while also protecting free speech. Parts of a law pushed by the governor last year were found to be unconstitutional by a judge after the American Civil Liberties Union sued the state. Lawmakers passed that law three days after it was introduced.

The revamped bill includes “instigating, inciting, or directing” force or violence as examples of urging a riot. The governor argues that the proposal will pass what’s known as the Brandenburg test for free speech, which stipulates that authorities can’t prosecute speech unless the speech intends to cause a crime, is likely to cause it, and the crime is imminent.

But Pourier warned that the law’s passage would come with the cost of deteriorating trust between the state and tribes. She called lawmakers to “listen to understand” the experiences and history of tribal members who have become distrustful of the state.

Speaker Steven Haugaard, a Sioux Falls Republican, also voted against the bill and took a moment after the vote to address the opponents who had attended the session. He said the bill is mostly intended “to clear up the mess that was created last year” and that he hoped the tribal community would not take it as an insult.