Story by Amy Dalrymple
Forum News Service
MANDAN, N.D. – Two participants in the Dakota Access Pipeline protest have been charged with crimes related to using drones in what may be the first criminal cases in North Dakota against drone operators.
One man is charged with stalking after he used a drone to photograph private security workers and another man is charged with felony reckless endangerment for allegedly flying a drone near a North Dakota Highway Patrol aircraft.
Meanwhile, the use of drones and other surveillance tactics by the pipeline company and law enforcement are being questioned by attorneys representing the pipeline resistance camp.
Open records requests filed recently by the American Civil Liberties Union and the National Lawyers Guild seek to find out what surveillance methods have been used by law enforcement and whether any of it has been unconstitutional.
“It’s a very tricky area, drone use, and we are very concerned about law enforcement and government use of drones,” said Jennifer Cook, policy director for the ACLU of North Dakota.
In Morton County, prosecutors charged Myron C. Dewey, 44, Marysville, Wash., with stalking, a Class A misdemeanor, after employees of Leighton Security reported they were filmed by a drone operated by Dewey on Oct. 8.
The security officers told law enforcement they were working security for Dakota Access in their vehicles east of Highway 1806 on the Cannonball Ranch when they saw a drone flying above their vehicles that they believed was attempting to get photos or videos of the officers and their license plates, court records say.
“Both security officers stated they were in fear for their lives and their families’ lives because the drone was possibly live streaming video to social media,” states the court affidavit.
Also in Morton County, authorities issued a warrant last week for Aaron Sean Turgeon, 32, Winner, S.D., for three criminal charges related to his use of a drone.
Turgeon is charged with reckless endangerment, a Class C felony, for allegedly of flying a drone near a Highway Patrol aircraft on Sept. 6 during a pipeline protest in Morton County.
Highway Patrol Sgt. Shannon Henke wrote in a court affidavit “the reckless operation of the drone put the NDHP aircraft pilot in greater danger due to the possibility of an in-air collision that could have easily resulted in serious injury or death to the pilot.”
Aaron Birst, executive director of the North Dakota State’s Attorneys Association, said he believes the criminal cases are the first ones of their kind in the state.
“In my experience, that would probably be the first time that somebody’s been charged with a crime in connection with a drone,” Birst said. “We have just not had that kind of activity in North Dakota.”
North Dakota legislators passed a bill related to drones last session, but it primarily aimed to address law enforcement use of drones, Birst said.
But even without specific laws related to drone operators, people can be charged with crimes if they use a drone as an instrument to commit a crime, said Alan Frazier, a deputy for the Grand Forks County Sheriff’s Office.
“Criminal cases against operators of drones are relatively rare, but they are increasing as a result of the fact that more people are utilizing drones,” said Frazier, also an associate professor for the University of North Dakota’s School of Aerospace Sciences.
Some attorneys are challenging the case against Dewey, arguing he is an independent journalist and his use of the drone is protected by the First Amendment.
“It’s ridiculous that he’s been charged with stalking,” said Angela Bibens, an attorney who is part of a legal team working with the self-described water protectors. “To me it’s a perversion of what that charge is intending to punish.”
Cook also objects to the charges against Dewey and questions whether the security officers had a reasonable expectation of privacy.
“If you can drive by on the gravel road and take a look at them, then certainly using a drone to view them is likely just as permissible,” Cook said.
The court complaint against Dewey alleges he was using the drone to frighten, intimidate and harass the security officers. The court complaint notes that some protesters have posted on social media personal information about private security and law enforcement.
Bibens also claims the drone was illegally seized by law enforcement during a traffic stop in violation of the Fourth Amendment. The court complaint says the drone was in plain view in the vehicle’s backseat.
Attempts to reach Dewey for comment through social media and the camp legal team were not successful. His court-appointed attorney did not return a call seeking comment.
In the other criminal case, the most serious charge against Turgeon relates to allegations he flew a drone higher than 400 feet in close proximity to the Highway Patrol aircraft.
In addition, Turgeon also is charged with misdemeanor reckless endangerment for allegedly flying a drone above 150 to 200 protesters, which law enforcement said in court documents put the protesters and law enforcement at risk of injury or possibly death. He also is charged with misdemeanor physical obstruction of a government function for preventing law enforcement from seizing the drone.
Federal Aviation Administration rules require operators of small unmanned aerial vehicles to yield to manned aircraft. The rules also prohibit flying over people unless a waiver is obtained.
Frazier said FAA rules prohibit flying a drone over large gatherings of people because the unmanned aircraft are more likely to come out of the air unexpectedly due to mechanical failure or operator error.
“These particular aircraft really haven’t matured to the level of reliability that manned aircraft have,” Frazier said.
Attempts to reach Turgeon for comment through social media were not successful last week and attorneys at the camp said they were not familiar with his case.
Turgeon, also known as Prolific the Rapper, appears in music videos that have gone viral on social media that criticize Dakota Access and the law enforcement response to the protest.
Camp under surveillance?
Residents of the Oceti Sakowin camp north of the Standing Rock Sioux reservation say low-flying helicopters and airplanes routinely pass over the camp, sometimes waking campers up at night or early in the morning.
“They circle the camp sometimes for hours during the morning and at various other times during the day,” Bibens said. “We think they might be using a variety of technologies to try to ascertain what’s going on in the camp.”
Campers also have seen drones flying overhead that do not belong to registered media or anyone staying at the camp, said Dallas Goldtooth, an organizer with the Indigenous Environmental Network.
“We don’t know whether it’s Dakota Access or it’s law enforcement,” Goldtooth said.
The ACLU of North Dakota and the National Lawyers Guild recently submitted information requests to multiple local and federal agencies to find out what surveillance methods are being used. The organizations said they’re seeking to promote transparency and challenge any violations of constitutional rights.
“Law enforcement shouldn’t go on fishing expeditions to find possible criminal activity,” Cook said.
Donnell Preskey, a spokeswoman for the Morton County Sheriff’s Department, said law enforcement will not comment on what surveillance methods are being used in connection with the Dakota Access protest or whether law enforcement is using drones.
Energy Transfer Partners also will not comment on what surveillance methods the company or its private security firms are using.