By Jerri-Lynn Scofield, who has worked as a securities lawyer and a derivatives trader. She now spends much of her time in Asia and is currently researching a book about textile artisans. She also writes regularly about legal, political economy, and regulatory topics for various consulting clients and publications, as well as scribbles occasional travel pieces for The National.
Last Wednesday, Oklahoma governor Mary Fallin approved HB 1123, a bill aimed at stifling protests against oil and gas pipelines. The measure took effect immediately.
The new Oklahoma statute declares an “emergency” exists and creates a new category of misdemeanor, as well as two additional felony counts. The statute imposes draconian penalties on protestors convicted of trespassing at a critical infrastructure facility— including chemical plants, liquid natural gas terminals, pipelines, ports and other transportation facilities, power plants, railways, and refineries (section 1 D 1 a-p).
As summarized in Oklahoma Trespassing Laws Beefed Up Against Protesters by Okenergytoday.com, the specified penalties are serious:
The misdemeanor level allows for a fine of $1,000 and up to six months in county jail for willfully trespassing onto property containing critical infrastructure (Jerri-Lynn here: See section 1 A of HB 1123).
The first felony level allows for a fine of no less than $10,000 and a prison sentence for up to 10 years for individuals that willfully trespass with the intention to damage, destroy, vandalize, deface, tamper with equipment, impede or inhibit operations of the facility. The final felony level is for a fine not less than $100,000 and a prison sentence for up to 10 years for successfully damaging, destroying, vandalizing, defacing or tampering with equipment in a critical infrastructure facility (Jerri-Lynn here: See sections 1 A and B of HB 1123).
The statute targets not only protestors on-the-ground, but organizations– such as environmental groups– that “conspire” with them to trespass. Section C of HB 1123 specifies:
If an organization is found to be a conspirator with persons who are found to have committed any of the crimes described in subsection A or B of this section, the conspiring organization shall be punished by a fine that is ten times the amount of said fine authorized by the appropriate provision of this section.
The Intercept has teased out two of the more serious implications of targeting organizations as “conspirators” in Oklahoma Governor Signs Anti-Protest Law Imposing Huge Fines On “Conspirator” Organizations. First is the breadth of activities targeted:
The Oklahoma law signed this week is unique, however, in its broad targeting of groups “conspiring” with protesters accused of trespassing. It takes aim at environmental organizations Republicans have blamed for anti-pipeline protests that have become costly for local governments.
And second is the formidable level of penalties that may be imposed on these “conspiring” organizations, with a maximum fine of 1 million dollars for the top felony category.
Further Pending Oklahoma Legislation
Separately, Oklahoma lawmakers also passed HB 2128, a vicarious liability measure, that Governor Fallin has yet to sign. That legislation would make protestors and those who help them– say, by hosting protestors– liable for the economic damages caused by trespassers, as reported by The Oklahoman in New Oklahoma law could mean heavy fines, jail time for pipeline protesters:
On the same day Fallin signed [HB 1123], lawmakers approved another one that would make trespassers liable for damages to real or personal property. House Bill 2128 also extends civil liability to a “person or entity that compensates, provides consideration or remunerates a person for trespassing.”
The bill’s author, state Rep. Mark McBride, said the so-called vicarious liability provision would apply to people who give lodging to those who are later arrested for trespassing. He said the idea for the bill came from actions along the Dakota Access Pipeline.
Democrats opposed the bill because it would allow lawsuits even if there is no conviction. A person could be hauled into court to pay for damage if they are, at a minimum, arrested on suspicion of trespassing.
“So at the end of the day, you can be arrested, acquitted, and somebody can be held liable for your completely lawful activity?” asked state Rep. Collin Walke, D-Oklahoma City.
I want to note here that the scope of exactly what activity might be sufficient to trigger liability under this provision– if Oklahoma indeed enacts it, as seems likely– is unsettled, as The Intercept reports:
“That would be for the courts to decide,” replied Rep. Mark McBride, the bill’s author.
Doug Parr has represented numerous environmental activists in Oklahoma protest cases. In an interview with the Intercept the attorney noted the liability bill’s loose wording. “Say they lock themselves to a piece of construction equipment, and a claim can be made that there were damages from that trespass,” Parr said. “Does this statute create a civil action for a pipeline company to then go after a person or organization that posted bond or helped pay for a lawyer for that civil disobedience?”
Some national environmental organisations– such as the Sierra Club– already have policies that eschew civil disobedience tactics. The Oklahoma statute would only lead other prudent organizations to embrace this excess of caution. Turning again to The Intercept:
Johnson Bridgwater, head of the Oklahoma chapter of the Sierra Club, which opposes the Diamond pipeline, noted that the Club has an official policy against participation in civil disobedience. (Its board suspended the rule in 2013 before executive director Michael Brune was arrested in a protest calling for then-President Barack Obama to reject the Keystone XL Pipeline). However, he said “We don’t necessarily know everyone who’s attending the events,” adding, “There is a strong and real fear that this could be used as an attempt to crush a group or a chapter of Sierra Club unfairly.”
Additional background information on the Oklahoma legislation– including details about corporate support and funding– is spelled out in this Steve Horn piece I crossposted in April from DeSmogBlog, Newspaper Owned By Fracking Billionaire Leaks Memo Calling Pipeline Opponents Potential “Terrorists”.
Republicans Target Protests in State Measures
The Oklahoma measures are part of a national effort by a plethora of Republican lawmakers in several states to crack down on mass protests, as The Washington Post reported in Republican lawmakers introduce bills to curb protesting in at least 18 states in February. Common Dreams in April boosted that count to 19 in UN: Americans’ Right to Protest is in Grave Danger Under Trump, reporting on a UN investigation into anti-protest laws under consideration since Trump’s November electoral victory.
As the Post points out, many of these more general anti-protest laws raise serious Constitutional issues, and are unlikely to survive judicial challenge:
Critics doubt whether many of the laws would pass Constitutional muster. “The Supreme Court has gone out of its way on multiple occasions to point out that streets, sidewalks and public parks are places where [First Amendment] protections are at their most robust,” said Lee Rowland, a senior attorney with the American Civil Liberties Union.
There are a few problems with that sanguine analysis, however. First, if and when these measures are passed and unless and until the statutes are overturned, they will likely have a chilling effect on political dissent. And secondly, they will almost certainly contribute to promoting aggressive policing responses against protest activity– as if local police forces need any more encouragement or incentive to rough up– or worse– protestors.
States including both North Dakota and South Dakota have also embraced the more subtle Oklahoma approach targeting trespass, rather than dissent per se. If carefully drawn, any measures enacted to dissuade and punish trespass on property not typically regarded as a public sphere– whether or not privately owned– are not as vulnerable to the elementary constitutional challenges discussed in The Washington Post’s account quoted above.