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Sheriff Retaliates Against Lawyers Scrutinizing Arrests of Water Protectors

A Minnesota sheriff is using his office to avoid subpoena in an investigation into Enbridge funding police repression.

Dawn Goodwin holds a flag during the "Treaty People Walk for Water" event near La Salle Lake State Park in Solway, Minnesota, on August 7, 2021.

Court documents reveal that Aitkin County, Minnesota Sheriff Daniel Guida, a key figure in the repression of Water Protectors resisting the Line 3 pipeline, has used his office to retaliate against efforts to subpoena him.

The subpoena seeks to compel Guida to testify under oath about an arrangement with pipeline company Enbridge Inc. that has seen his office receive $355,393 of direct funding in addition to tens of thousands of dollars more in exclusive assistance from other agencies, all funded by Enbridge Inc. The funds reimbursed law enforcement for things like crowd control materials and time spent policing Water Protectors who opposed the company’s Line 3 tar sands pipeline, which was completed in September 2021.

In the case of arrested Water Protector Sarah Kilbarger-Stumpff, defense attorney Kira Kelley argues that Enbridge’s funding and support of law enforcement — $8.6 million in total to state and local law enforcement agencies across Minnesota — is a violation of the due process and equal protection rights of those facing criminal charges, since the scheme amounts to third-party influence over how the law gets enforced.

Corporations are not supposed to be involved in how the law gets applied.

The scheme, devised by the State of Minnesota and Enbridge Inc., created an escrow account in 2018 to reimburse law enforcement who respond to Water Protectors opposing the Line 3 pipeline. Statewide, the account has seen Enbridge Inc. reimburse expenses like “security patrols,” helmets, gas masks, handcuffs, shields, “Protester removal,” “Personnel costs for protest activity,” sports apparel, riot shields, balaclavas, “Training in 2020 for preparation of Line 3 events,” wages, and housing costs for traveling law enforcement. This has funded a law enforcement response that has produced 964 prosecutions and over 1,000 arrests of Water Protectors, according to Marla Marcum of the Climate Disobedience Center, which has been tracking cases and offering support for people facing charges.

The corporate influence over law enforcement has also included Enbridge’s drafting of dispersal orders for law enforcement, giving suggestions for charging statutes and broad influence over law enforcement tactics, as Alleen Brown has reported for The Intercept.

A Rogue Sheriff?

Guida is a central player in this drama. Enbridge funds provided to Aitkin County’s law enforcement have led to at least 112 criminal cases, 49 of which are open, including four open felony cases. Guida has made headlines for arrests he made that produced outlandish felony aiding attempted suicide and felony obstructing legal process charges against Water Protectors, which required his testimony to argue the Water Protectors’ actions put his life at risk, a requirement for the obstruction charge.

In Aitkin County, the money Enbridge has given to the Sheriff’s Office has directly funded sunscreen, ear/eye protection, lodging, food, facility and equipment rental, “[Line 3] Personnel wages,” “meals & mileage for responses,” and “benefits.” Funds given to other agencies for their exclusive assistance to Aitkin have supported things like “Line 3 Protest Response-assist[s].”

The subpoena that Kelley, chair of the Vermont National Lawyers Guild, has pursued against Guida seeks to shed further light on the constitutional issues at play by compelling him to testify under oath about his office’s arrangement and communications with Enbridge.

So far, the public and journalists like Brown have used public information laws to shed light on the scheme. However, the government has used privacy laws to block full transparency.

Initially, Kelley simply asked Assistant Aitkin County Attorney Thomas Klosowski to bring Guida to court to testify. After that request was denied, per court procedure, Kelley resorted to a subpoena. According to a motion, when Kelley tried to serve Guida the paperwork at the Sheriff’s Office, staff refused to accept the subpoena on Guida’s behalf.

Kelley then tried to serve Guida at his home, but he refused, and “immediately began shouting,” according to legal motions and signed affidavits filed with the Minnesota Judicial Branch by Kelley and another attorney, Sandra Freeman, who accompanied Kelley to serve the subpoena.

“When the two attorneys attempted to leave, Sheriff Guida stood in front of their vehicle and told them they were not free to go,” a legal motion from Kelley reads. “Sheriff Guida demanded that they provide identification and answer questions. He then relayed this information to dispatch and instructed his office to have charges written up against the two attorneys for gross misdemeanor trespass.”

Guida told Truthout, “Attorneys identify themselves and are typically professional enough to use lawful practices to serve subpoenas. The individuals did none of these things.”

Freeman, the attorney who accompanied Kelley, told Truthout: “I immediately identified us as attorneys to Sheriff Guida and later offered to show him my bar card. He yelled that we’re not lawyers, did not know the law and refused to look at the bar card. This man is disrespectful, unprofessional and shows through his actions he will protect, serve and enforce the law only to benefit him and the foreign extractive company that pays him and his deputies to harass and brutalize everyday people.”

Guida’s refusal to honor a subpoena represents “a total breakdown in the rule of law,” said attorney Claire Glenn, an attorney with the Water Protector Legal Collective and the Civil Liberties Defense Center. For a sheriff, whose role it is to enforce court subpoenas, to obstruct the court process sets up a possible future scenario in which a judge may be forced to order the Sheriff’s Office to arrest Guida. That’s where the rule of law breaks down.

Concerned about the possible misconduct, Glenn, who is handling other Water Protector cases in Aitkin, requested any and all information about Guida’s “flagrant disregard for the law and fundamental rights enshrined in the Minnesota and United States Constitutions.”

The Aitkin prosecutor told Glenn the “incident referenced in your letter has been referred out for investigation. As it is an ongoing investigation, we cannot produce any of the requested materials.” Because of conflict of interest issues, the matter was referred to the Carlton County Attorney’s Office.

In September, Glenn received communications between the two county prosecutors. However, rather than an investigation into Guida’s actions, those emails indicate that the matter which had been “referred out for investigation” was instead a criminal investigation into a “proposed charge” of trespassing against Kelley and Freeman.

Guida told Truthout that “reports were submitted for consideration of criminal charges.”

The Aitkin County prosecutor’s office sought criminal charges against both attorneys for seeking to uphold a client’s constitutional rights to confront their accuser and to question witnesses under oath. The Carlton prosecutor declined to prosecute the charges.

Avoiding Accountability for a Violation of Constitutional Rights?

The underlying issue here is whether the entire scheme — which has seen Enbridge fund and facilitate trainings for law enforcement on how to respond to Water Protectors opposing its pipeline, propose legal responses to protests, and underwrite the militarization of law enforcement agencies who respond to Water Protectors — violates United States and Minnesota due process protections.

Those protections require law enforcement to act totally independently of any influence by a third party. In a legal motion, Kelley argued that in this case there has been a “merger of Enbridge and law enforcement interests through a many million dollar sponsorship.”

The resources provided by Enbridge have “functionally commandeered law enforcement’s subsequent discretion over whether and how to respond to hypothetical activities, replacing independent executive branch judgment in response to actual events with a pre-planned response supplied in advance by Enbridge,” the motion reads.

All of the training that Enbridge has funded (which has involved both Enbridge employees and law enforcement) and the collaborative preparation of dispersal orders and charging statutes, have created “ample opportunities for camaraderie to develop, implicitly encouraging a collaborative spirit between public and private agents and the fusion of their respective interests,” the motion continues.

These issues have been exacerbated by the fact that, as Brown reported in The Intercept, law enforcement said in emails that they were told by Enbridge that the company had a say in who the state appointed to manage the escrow account, and that Enbridge “would be involved to ensure we are taken care of, one way or another.”

Meanwhile, Kilbarger-Stumpff, who was jailed for three days after being arrested on April 23, 2021, for participating in an “unlawful assembly” and refusing to leave, is facing three misdemeanors and one gross misdemeanor. Her case, one of hundreds, has already been delayed because of a full court docket. On November 8 she filed a motion to have her charges dismissed after it was revealed the prosecutor handling Water Protector cases is no longer working. “This failure to prosecute leaves the Defendant’s case suspended indefinitely while she remains subject to bail conditions,” her motion reads, “which she has been on for over eighteen months, without opportunity to continue defending her presumed innocence.”

Though the Carlton prosecutor declined to prosecute Kelley and Freeman, Guida indicated to Truthout that there are cases still “pending” against the attorneys, as of November 15.

Note: This article has been amended to clarify Claire Glenn’s role in relation to the Water Protector Legal Collective.

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