Standing your ground, defending your rights: lessons from the field with the buffalo
Litigation

FROM

BFC Buffalo Field Campaign
July 2017

The unanimous Appeals Court ruling clears the way for Reed’s case to proceed against the Gallatin County Sheriff’s Office, Doug Lieurance, and Brian Gootkin, for violating Reed’s First and Fourth Amendment rights and related Montana constitutional rights, and for failing to train officers on Montana’s obstruction statute.

Volunteers are an integral part of Buffalo Field Campaign and a cornerstone of our fieldwork. The personal experience of being on the landscape with the buffalo offers many learning opportunities. Volunteers patrol the buffalo’s habitat, learn the buffalo’s distinct migrations and behaviors, and directly experience the buffalo’s plight. Like the mother buffalo defending her newborn calf from harassment by livestock agents, sometimes you must stand your ground, turn your horns, and defend your right to be here.

Recently, the 9th Circuit Court of Appeals delivered a victory for Anthony Reed, a BFC volunteer who was cited and arrested by a Gallatin County Sheriff’s Deputy during a buffalo hazing operation along the Madison River and Highway 191. (You can read the ruling here: Reed v. Lieurance et al., opinion (9th Cir. 2017, PDF).

The unanimous Appeals Court ruling clears the way for Reed’s case to proceed against the Gallatin County Sheriff’s Office, Doug Lieurance, and Brian Gootkin, for violating Reed’s First and Fourth Amendment rights and related Montana constitutional rights, and for failing to train officers on Montana’s obstruction statute.

“This opinion basically sets in stone that BFC volunteers have First Amendment rights to observe hazing operations and volunteers engaged in this activity cannot be falsely arrested for ‘obstruction’ if they are not interfering with the haze,” says attorney Rebecca K. Smith. “It can be relied upon in future cases to protect the rights of BFC volunteers, as well as the rights of activists all over the country who are trying to peacefully observe and document government operations.”

Reed’s arrest on May 23, 2012, occurred shortly after BFC volunteer evidence was used in another case brought by the Alliance for the Wild Rockies and attorney Rebecca K. Smith, who secured a federal judicial restraining order on May 14, 2012 temporarily prohibiting the Montana Department of Livestock from flying helicopters in the agency’s buffalo hazing operations.

Attorney Rebecca K. Smith successfully argued for the Gallatin County prosecutor to drop the officer’s citation and the court dismissed Reed’s charges. Smith and the Public Interest Defense Center then filed Reed’s constitutional suit after years of multiple BFC volunteers being arrested and cited for attempting to witness and document Department of Livestock-led operations that harass migratory buffalo on National Forest habitat in Montana. Attorney Tim Bechtold, of Bechtold Law Firm, assisted in Reed’s trial.

The 9th Circuit found Gallatin County Deputy Sheriff Doug Lieurance did not have probable cause to arrest Reed and threaten him with jail for attempting to observe a government-led hazing operation forcing buffalo and their newborn calves from National Forest lands.

The three-judge panel agreed with Reed that he was not obstructing the hazing operation by parking on a public road overlooking the Madison River. The court wrote that a public road “is a quintessential public forum,” and in being there, Reed was “engaging in the First Amendment-protected activity of observing a government operation.”

The 9th Circuit judges removed U.S. District Court Judge Sam E. Haddon from the case, and reversed his decisions, finding he:

Committed error in dismissing Reed’s First Amendment and related state claims based on lack of notice, thus denying him an opportunity to present evidence, and improperly relied on a pre-written order to dismiss Reed’s claims without the proper motion being before the court;
Improperly decided factual questions and disputes reserved for the jury, such as “inexplicably” applying the “presumption” that the Gallatin County Sheriff “obeyed the law”;
Abused his discretion in excluding Reed’s expert testimony on police practices and the failure-to-train officers.
The Appeals Court also found Reed presented evidence sufficient for a jury to conclude Deputy Lieurance unreasonably placed restrictions on and desired to chill Reed’s constitutionally protected activity, and future activity, and the Deputy’s threat to take Reed to jail was retaliatory.

The court wrote: “a jury could reasonably infer that Deputy Lieurance’s safety justification was pretextual, and in fact he sought to prevent [Buffalo Field] Campaign volunteers from observing the haze.”

While the Appeal’s Court ruling vindicated Reed’s constitutional rights, he will have to seek a new trial to be decided by a fair and impartial jury before a new judge.

“With this administration stripping protections from wildlife and people, it’s more important than ever to support the people who are protecting the future,” says Anthony Reed. “The animals, the earth, the people, all need more defenders, and together we can win. Please get involved. Volunteer. Contribute what you can. The buffalo need your help.”

Buffalo Field Campaign applauds and give thanks to the Public Interest Defense Center and attorney Rebecca K. Smith for her extraordinary legal advocacy in securing a 9th Circuit ruling upholding people’s constitutional rights, attorney Tim Bechtold, Bechtold Law Firm, for assisting at trial, and to Anthony Reed for standing his ground, turning his horns, and defending the constitutional rights we hold in common. 

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