RAPID CITY, S.D. -- The Pennington County Sheriff can't be sued for enforcing state laws, attorneys wrote in response to a federal lawsuit challenging laws aimed at potential protests against the Keystone XL oil pipeline.
Kevin Thom filed the motion to dismiss last week after the ACLU sued him, Gov. Kristi Noem and Attorney General Jason Ravnsborg, saying Senate Bill 189 and 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.
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.
While Noem and Ravnsborg argued in a previous response that the laws don't violate free speech , Thom's motion doesn't make any argument about the legality of the laws. Instead, he says the ACLU has no right to sue him.
Thom is required to enforce state laws, but the plaintiffs are challenging state, not municipal laws, the memorandum in support of the motion says.
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"Pennington County is not a proper party to defend the constitutionality of state statutes nor should it be burdened with the expense of defending statutes it has no power to change," the memo says.
Like Noem and Ravnsborg, Thom also argued that the plaintiffs — who said they plan to protest the pipeline and encourage others to do so in a non-violent way — have no reason to sue since they have no reason to be prosecuted.
"There is no 'realistic fear of prosecution' because the planned conduct does not fall within the scope of the" laws, the memo says.
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.
