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ACLU: South Dakota sheriff can be sued in pipeline protest lawsuit since he enforces laws

Pennington County Sheriff Kevin Thom. Ryan Hermens / Rapid City Journal

RAPID CITY, S.D. - The Pennington County sheriff can be sued over the state's new pipeline protest law since he has discretion over how to enforce the law, the South Dakota ACLU argues in a new court document.

The ACLU filed the document Tuesday, May 20, in response to Kevin Thom's motion to dismiss himself from the ACLU's lawsuit against him, Gov. Kristi Noem and Attorney General Jason Ravnsborg. Thom argued he can't be sued over laws he is required to enforce.

"Thom’s policies give him discretion in whether and how to enforce the challenged laws, and the vagueness of the challenged laws requires Thom to exercise discretion and make choices in enforcing the laws," the ACLU wrote. "Each time Thom makes a choice about the laws’ meaning, as the highest official in the county for that action, he is doing so as a policymaker for Pennington County and exposes the county to liability each time."

The lawsuit says Senate Bill 189, along with two riot-related statutes, violate the First and Fourteenth amendments by discouraging free speech and being unclear about what exact actions are considered boosting or encouraging a riot. Passed in expectation of protests if the Keystone XL pipeline is built, SB 189 establishes a legal avenue and funding source for the state to pursue out-of-state sources that "riot boost" or fund violent protests. Those found guilty of breaking the law can be sent to prison for up to 25 years.

The ACLU named Thom in its lawsuit because it suspects protests will take place near Rapid City, Janna Farley, ACLU spokeswoman, previously told the Journal. The Keystone XL pipeline is expected to pass through Pennington, Meade, Butte, Perkins, Hardy, Haakon, Jones and Tripp counties.

In its Tuesday response, the ACLU cites Pennington County law enforcement policies that say deputies have discretion within the criminal process, and the office must create a written plan for responding to an unusual occurrence such as a civil disturbance.

The ACLU also points out that Thom said that he decided to follow the Pennington County state's attorney's interpretation of state law, not the attorney general's, and not arrest people for possessing CBD oil.

"Further contradicting his argument that he is 'required' to enforce all state laws without any exercise of discretion, Thom’s office explicitly stated in the press — only a week before filing his opposition brief in this case — that it will not follow opinions of the Attorney General with respect to CBD oil," the ACLU wrote.

Like Noem and Ravnsborg, Thom also argued the plaintiffs have no reason to sue since they have no reason to fear prosecution since they've said they plan to protest the pipeline and encourage others to do so in a nonviolent way.

The ACLU said their clients — the Sierra Club, Indigenous Environmental Network, Dakota Rural Action, NDN Collective and two individuals associated with the groups — do have "reasonable fear of arrest, prosecution and civil liability" due to the vagueness of the laws and fear that they could be unfairly linked to violent protests they aren't involved in.