State v. Simon, State v. Redway, 916 N.W.2d 626

Background

On Oct. 22, 2016, ~150 protesters at DAPL access point 128 left State Highway 1806, entered private pipeline easement, and advanced toward construction equipment after law enforcement established skirmish lines. 40–60 officers were on scene; multiple megaphone warnings to return to the highway were given.
Law enforcement established three skirmish lines; over 100 protesters were arrested after some attempted to flank the lines. One officer was sprayed when a protester grabbed pepper spray.
Mary Redway and Alexander Simon were photographed at the third skirmish line; Simon was photographed with arms linked to other protesters during arrests. Several co-defendants were acquitted; charges against some were changed during prosecution.
State charged Redway and Simon with disorderly conduct (N.D.C.C. § 12.1-31-01) and Simon also with physical obstruction of a government function (N.D.C.C. § 12.1-08-01); bench trial resulted in convictions for Redway (disorderly conduct) and Simon (disorderly conduct and obstruction).
Defendants argued (1) insufficient evidence of individualized criminal conduct, (2) their protest activity was constitutionally protected and should have been excluded, and (3) for Simon, insufficient evidence to support obstruction conviction.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Sufficiency of evidence for disorderly conduct	State: photographs, video, and officer testimony show Redway and Simon actively tried to flank lines and ignored orders, supporting conviction under multiple subsections of the statute	Redway/Simon: mere presence at protest, peaceful marching, political expression; no individualized acts creating hazardous or threatening condition	Affirmed — substantial evidence supports convictions when viewed in light most favorable to verdict; conduct not merely presence but active, reckless behavior supporting disorderly conduct under § 12.1-31-01(1)(a),(d),(g),(h)
Claim that protest activity was constitutionally protected and must be excluded	State: conduct (entering private property, flanking lines after orders to leave) is conduct, not protected speech; exclusion not warranted	Defendants: virtually all protest activity (signs, speech, sitting/remaining) is protected and should be excluded under § 12.1-31-01(2)	Affirmed — court independently reviewed and concluded the conduct was not constitutionally protected speech; evidence admissible
Sufficiency of evidence for physical obstruction (Simon)	State: photo of Simon with linked arms during arrests supports inference he intentionally impeded arrests and law enforcement functions	Simon: challenged that conduct did not amount to obstruction; argued evidence insufficient	Affirmed — linked-arms photo and context permitted inference Simon intentionally obstructed/impeded arrests under § 12.1-08-01
Inconsistency with co-defendants' acquittals	State: convictions depend on individual evidence and identification at skirmish line; co-defendants lacked similar identifying evidence	Defendants: acquittals of others show insufficiency or inconsistency of convictions	Rejected — differences in identification and conduct among defendants reasonably explain differing outcomes

Key Cases Cited

State v. Wanner, 784 N.W.2d 143 (N.D. 2010) (standard for reviewing sufficiency of evidence)
State v. Klindtworth, 691 N.W.2d 284 (N.D. 2005) (circumstantial evidence carries same presumption of correctness)
State v. Steiger, 644 N.W.2d 187 (N.D. 2002) (bench trial guilty finding requires only general verdict; appellate review may consider entire record)
City of Fargo v. Brennan, 543 N.W.2d 240 (N.D. 1996) (appellate duty to independently examine record for First Amendment intrusion)
In re A.R., 781 N.W.2d 644 (N.D. 2010) (distinguishing protected speech from unprotected conduct; disorderly conduct may rest on behavior)
In re H.K., 778 N.W.2d 764 (N.D. 2010) (contemporaneous conduct can support disorderly conduct conviction despite protected speech)
State v. Bornhoeft, 770 N.W.2d 270 (N.D. 2009) (same principle: focus on behavior, not content)
City of Bismarck v. Schoppert, 469 N.W.2d 808 (N.D. 1991) (context matters for fighting words and protected speech)
State v. Purdy, 491 N.W.2d 402 (N.D. 1992) (physical obstruction of government function requires an overt act; direct force not required)