CLAIM: The ACLU of South Dakota claims it should be able to sue law enforcement officials over a new riot boosting law that is designed to protect critical infrastructure projects and those who work on them. The ACLU claims the Pennington County sheriff can be sued because he has “discretion in whether and how to enforce the challenged laws, and the vagueness of the challenged laws requires (the sheriff) to exercise discretion and make choices in enforcing the law. Each time (the sheriff) makes a choice about the laws’ meaning, as the highest official in the county for that action, he is doing so as a policymaker for Pennington County and exposes the county to liability each time.”
The ACLU continues to play legal, political and semantic games with the new law by pretending it threatens free speech and its language is unclear. As previously noted, the new law does not threaten free speech. Additionally, the language in Senate Bill 189 is clear on the violent behavior the law seeks to address:
In addition to any other liability or criminal penalty under law, a person is liable for riot boosting, jointly and severally with any other person, to the state or a political subdivision in an action for damages if the person:
(1) Participates in any riot and directs, advises, encourages, or solicits any other person participating in the riot to acts of force or violence;
(2) Does not personally participate in any riot but directs, advises, encourages, or solicits other persons participating in the riot to acts of force or violence; or
(3) Upon the direction, advice, encouragement, or solicitation of any other person, uses force or violence, or makes any threat to use force or violence, if accompanied by immediate power of execution, by three or more persons, acting together and without authority of law.