Hubbard County, MN — Police officers who use excessive force on protesters are not entitled to qualified immunity and cannot use excessive force to prompt compliance, a federal appeals court ruled on Sept. 17.

Matthew Locke sued Hubbard County Sheriff Cory Aukes, Chief Deputy Scott Parks and Hubbard County after the sheriff and his deputy used pain compliance techniques on Locke in an attempt to remove him from a protest. According to Locke’s suit, the techniques amounted to an excessive use of force.

The Eighth Circuit Court of Appeals decided 2-1 to reverse the decision of U.S. District Judge Wilhelmina Wright, who dismissed the case on the grounds that pain compliance techniques are not prohibited by any existing case law.

The appeals court deemed the techniques excessive and reversed the district court’s ruling, returning the case to the district court, where it will now go into discovery.

Locke, who was diagnosed with Bell’s palsy after the incident, was happy with the court’s ruling.

“What happened that day was the deliberate infliction of excruciating pain and significant injuries,” Locke said in a statement to Unicorn Riot. “I hope this decision will protect other people from having their legal claims dismissed. No one should have to endure what I went through.”

In the early hours of August 16, 2021, a group of protesters arrived at a work site in Hubbard County where the Canadian energy company Enbridge was developing a replacement for its Line 3 oil pipeline. The 1,031-mile pipeline transports crude oil in the form of tar sands from Alberta, Canada, to Superior, Wisconsin, where it links up with Enbridge’s Line 6 pipeline.

The 2021 Line 3 reconstruction applied to a 282-mile stretch of the pipeline in Minnesota, beginning in Kittson County to the west and ending in Carlton County to the east. The construction was estimated to increase CO2 emissions from 80.5 million tons to 273.5 million tons, according to a report from Minnesota’s Office of Administrative Hearings.

This would have the same effect as building 50 new coal-fired power plants, according to a report from the climate action group MN350.

The original Line 3, built in 1968, had a history of accidents, including a rupture in 1991 that amounted to the largest inland oil spill in U.S. history. In 2021, during a severe drought in Minnesota and protests of the new construction, Enbridge spilled more than 10,000 gallons of drilling fluid from Line 3 at 12 different river crossings across the state.

One of the protesters who opposed the project was Locke, who used a “sleeping dragon” to attach himself to a Caterpillar 349F excavator on the site along with another protester on Aug. 16. A sleeping dragon is a protest device people use to attach themselves to construction equipment or other choke points to slow down projects. These devices are often constructed with a pipe or chicken wire and filled with materials to harden them, requiring law enforcement to cut it with power tools to remove protesters from the scene.

Law enforcement officers Aukes and Parks arrived at some point that day to remove the protesters from the property. Neither was prepared to remove Locke from the sleeping dragon device, but continued to try removing him anyway.

Parks applied pressure behind Locke’s right ear, a pressure point technique used to incapacitate individuals through excruciating pain, according to the original complaint filed by Locke’s attorneys. This did not cause Locke to release himself, so Parks did the same thing behind his left ear and then at the base of his nose. Aukes used the same techniques on Locke.

Locke said in the complaint that at some point during or after this he was no longer able to move the right side of his face in a normal manner. 

The Hubbard and Cass County extraction teams arrived and removed all of the protesters from the sleeping dragon devices, and an ambulance transported Locke to the St. Joseph’s Hospital in Park Rapids, Minnesota. After an evaluation, he was transported to the Hubbard County Jail.

Locke discovered later that he suffered from facial paralysis, emotional distress and tinnitus, which he claims are the results of Aukes’ and Parks’ use of excessive force on him.

After the circuit court’s decision, Hubbard County filed for an “en banc” rehearing of the case, where all of the judges of the Eight Circuit would be required to hear the case, on Oct. 1, arguing the decision made by the court ran counter to judicial precedent. The claim hinged on the opinion of the case’s single dissenting judge, Raymond Gruender.

Gruender is a member of the Federalist Society and has been on Donald Trump’s list of potential Supreme Court nominees since 2016, according to NBC News.

The request was denied on Oct. 23, reaffirming the court’s decision to return it to the federal district court. The case will now enter the discovery phase, according to Tim Phillips, the owner of the law office representing Locke.

“We’ll finally get to depose Sheriff Aukes and Deputy Parks under oath and obtain documents that will shed light on exactly what happened that day,” Phillips said in a statement to Unicorn Riot. “We look forward to presenting Mr. Locke’s case to a jury.”

In the build-up to the Line 3 resistance, police across the state had been holding coordinated anti-protest trainings at Camp Ripley, a military base operated by the Minnesota National Guard which also hosts trainings for the Minnesota State Patrol. An investigation by the Guardian in 2021 revealed that Enbridge reimbursed police departments $2.4 million for arresting and surveilling protesters opposing the construction of the Line 3 pipeline.

These payments included $849,163.40 to the Cass County Sheriff’s Office for “proactive safety patrols” of communities along the pipeline route, according to The Guardian. During these patrols, a Cass County supervisor met several times a day with Enbridge public safety staff to review safety concerns, intelligence gathering and public safety initiatives.

Read the full ruling here.

Cover image of Hubbard County Sheriff Cory Aukes by Sean Summers for Unicorn Riot, 2021.

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