Trial postponed for DAPL protester accused of firing gun
BISMARCK — The woman accused of shooting at police officers during an October pipeline protest is petitioning the court to get out of jail before her July 17 trial.
Red Fawn Fallis' Rapid City-based attorney Bruce Ellison said release from the Rugby jail to a Fargo halfway house would facilitate communication and improve her well-being prior to trial.
"Being released allows one to be more whole as a person and allows one to have much better, more frequent attorney-client contacts," Ellison said in an interview. "In a noncustodial setting, we can better go through videos, pictures and have open discussion. It gives the defendant more of an equal footing."
This latest request comes after U.S. District Judge Daniel Hovland released Red Fawn Fallis on a four-day furlough to attend her mother's memorial in Denver, accompanied by another attorney.
"She has proven that she will comply with court orders. So, we are hoping for a positive result this time," Ellison said.
But Assistant U.S. Attorney David Hagler has argued she remains a danger to the community and a flight risk. Hagler argued further that convenience to meet with an attorney is not a good enough reason.
U.S. District Judge Daniel Hovland has not yet ruled on the request, which follows a month-long dispute in Fallis' court case over whether she should be released, and if the judge's decision to detain her resulted from bias against the protesters.
Fallis, 38, is charged with felony counts of civil disorder and discharging a firearm in relation to a felony crime of violence — which, in this case, is civil disorder, an uncommon charge in federal court. She is also charged with possession of a firearm by a convicted felon. If convicted of discharging the firearm, Fallis faces a minimum of 10 years in prison.
Prosecutors allege she fired a gun three times while officers attempted to arrest her for instigating the crowd as Dakota Access Pipeline protesters were cleared from a northern "front line" camp on Oct. 27 in southern Morton County.
At a detention hearing, a South Dakota officer testified to seeing the gun go off as he tried to arrest her, then struggling to pull the pistol from her grip.
"I still recall seeing somebody with a flex cuff, about to put it on her wrist, and — when I heard a couple of gunshots ring out. At that point I looked down, and there's another gunshot rang out, and I could actually see the round impacting the ground right next to my knee," Pennington County Deputy Sheriff Rusty Schmidt said at a detention hearing on Dec. 15.
Fallis has pleaded not guilty to the charges. Ellison said he is still requesting and studying discovery materials and considering legal and factual defenses. Her supporters have questioned how she could have discharged a gun while pinned down by officers.
He said a recent release of documents leaked to a watchdog website, the Intercept, detailing private security and intelligence conducted by a company called TigerSwan and given to law enforcement has clarified new information he will request and could delay the trial.
"With these new documents coming out, we have a lot more discovery to do," Ellison said in an interview.
There has been heated back-and-forth since December about whether Fallis could be released to a halfway house. At one point in April, Magistrate Judge Charles Miller approved it. The day after, the government appealed. Hagler cited testimony that Fallis had brass knuckles and pepper spray when she was arrested and a 2003 criminal record from Colorado. According to Arapahoe County court records, Fallis was accused of driving the car for a shooter in Denver. She pleaded guilty to being an accessory to an attempted murder and served 30 months on probation, according to the records.
The U.S. Attorney's Office declined any further comment on the case, because it is still pending.
The next day, before the defense could respond, Hovland overturned the magistrate's decision.
Believing the order to be an example bias against protesters — Hovland has stated in civil cases that protests have been violent — Ellison asked the judge to recuse himself from the case.
Incredulous, Hovland denied the request. He wrote that the allegation of bias was "simply misguided and untrue. Ms. Fallis' beliefs appear to stem primarily from her unhappiness in not being released to a halfway house or residential re-entry center for the next two months."
Ellison said his next move is to ask for a change of venue — to a place where jurors have been less exposed to media coverage, community discussion and personal dealings with the protests.
Nicholas Klinefeldt, a former U.S. Attorney for the Southern District of Iowa and partner with Faegre, Baker, Daniels, said he was not surprised by Hovland's detention decisions.
"Given the fact that she apparently discharged a firearm during the course of her arrest, I would be very surprised if somebody under those circumstances were to be released pending trial," he said after reviewing the court documents.
Klinefeldt said that a motion for change of venue, while rare, could be granted, given "what's happening in North Dakota right now."
If the judge would change the venue, he might move it to Fargo or a neighboring state. However, the federal court already has access to potential jurors in all of western North Dakota, not just Morton County, where state court judges have dismissed motions to relocate, despite the conclusion of Diane Wiley, president of the National Jury Project, that it is "likely that the defendant protesters will not be able to receive fair trials."