A License to Kill: HB 1203 In North Dakota

Gary Kavanagh
Jan 14, 2017 · 10 min read

(Updated Jan 15th 23:03 PST, revised for clarity on implications of negligence and minor corrections.) (Updated Jan 19th 18:12 PST, to include Kempenich’s e-mail after he had all contact information scrubbed from his government webpage.) (Bill text revised as of Feb 3rd, update on next text here.)

In the years that I’ve been reading and writing on the topic of transportation safety, particularly as it relates to vulnerable road users like people who bicycle, and pedestrians, I’ve never encountered a law as heinous and malicious in it’s intent and potential consequences as the recently proposed House Bill 1203 in North Dakota. HB 1203 as drafted seeks to completely exempt motor vehicle drivers who by negligence harm or kill individuals who obstruct traffic, from any liability for civil damages or criminal offenses.

The law, proposed by North Dakota Republican state House representative Keith Kempenich is, in his own stated purpose as reported by the Bismarck Tribune, meant to target the Native led protest actions against the Dakota Access Pipeline (DAPL) project. An oil pipeline project that has been routed upstream of the Standing Rock Sioux Reservation on privately owned but disputed land that was included in the 1851 The Treaty of Fort Laramie. Which you may already be aware has been the focal point of extended protest actions accompanied by a large ongoing encampment.

I’m not going to elaborate on the fight over the pipeline and the #NoDAPL movement, many others are doing great work covering it, but when I first saw Tara Houska share a link on the introduction of HB1203 in the Bismarck Tribune on Twitter, all of my transportation policy alarm bells went off and I had to start digging into this monstrosity. Kempenich’s legislation takes aim at disempowering the rights of protesters that take to streets and roadways by means of empowering drivers to harm and kill without repercussion. The text is fairly simple, but the potential implications are staggering and as far as I am aware unprecedented in maliciousness.

The bill in it’s current draft has two parts (full bill text here). The first is the creation of a new section of the state code, 32–03.2–02.2. “Liability exemption for motor vehicle driver.” The provision reads “Notwithstanding any other provision of law, a driver of a motor vehicle who negligently causes injury or death to an individual obstructing vehicular traffic on a public road, street, or highway may not be held liable for any damages.” (Emphasis mine.) The second section amends the existing state code section 39–10–33, regulations of pedestrians on roadways, which currently has 4 parts defining pedestrian obligations (found on p. 11 here), to include a 5th part, which reads “Notwithstanding any other provision of law, a driver of a motor vehicle who unintentionally causes injury or death to an individual obstructing vehicular traffic on a public road, street, or highway is not guilty of an offense.” (Emphasis mine)

Taken together, a motorist cannot be found liable for damages if they injure or kill anyone through negligence (not by deliberate intent to harm, but failure to take reasonable care), who is found to be “obstructing vehicular traffic,” and they will also escape being found guilty of any criminal charge or offense. Especially in light of how rare it is for intent to harm to be proven in cases of vehicular violence, this is really, really bad. I don’t know how else to describe this other than state sanctioned automotive barbarism. The spirit of this law is essentially to deputize motorists to deliver death sentences with their car without repercussion.

This is seriously sinister shit, curtailing the freedom of assembly and protests that take to streets and roads by means of absolving drivers of legal consequences for harming protesters. The scope of the law is also far broader than any specific stated intent of targeting of protesting, and as of it’s introductory draft would apply to any individuals found to be “obstructing vehicular traffic.”

As just one hypothetical fucked up scenario let’s say someone with a developmental disability is in a roadway is “obstructing vehicular traffic” by not continuing across as traffic backs up. Let’s say some people come and try to help that individual out of the road and the person refuses to budge. If a driver then negligently swerves around stopped cars only to plow into that group of people, would that driver be found to be not liable for any damages to the people they harm, because the victims were “obstructing vehicular traffic” and there was no means of proving intent to harm? It would appear to me they’d be free of damages under the broad scope of this legislation. They would also not face any criminal charges or vehicle code violations so long as intent could not be proven and the victims are found to be “obstructing.”

This is some despicable logic at work. Insurance companies would be presented with a guaranteed pay out nothing route if they can show the conditions are met to escape all liability under HB 1203, creating a powerful incentive to paint victims as “obstructing vehicular traffic.”

There’s long been a subset of “fuck em” conservatives, and to a lesser extent some callous liberals with a disdain for marches and direct action, who practically salivate at the prospect of just running people down that take to roadways, prioritizing their driving commutes above all else, including lives. I started keeping a Twitter list a few years ago of accounts I’d encounter promoting the idea of killing people with their car, in seriousness or “jest”, over protests, because they don’t like bicyclists existing, or what ever other rationale. There was definitely an uptick of really ugly commentary when the Black Lives Matter protests took shape and made the use roadways and highways a central tactic in disrupting and galvanizing attention.

A small sample.

Such rhetoric can easily spill into action with the impulsive and rapidly delivered power that cars enable, and some drivers have and do forcibly push their way through crowds of people (such as this incident at a No DAPL rally in Reno) fully aware of the potential to harm or even kill by doing so. North Dakota’s HB 1203 would help legitimatize this kind of use of force, or less overt but endangering driving behavior around groups of people, through protection from civil damages and charges unless explicit intent to harm can be proven.

With so many people willing to be so public in their automotive blood lust, I’ve worried for some time that real legislation to outright support automotive killings over traffic obstruction could at some point materialize, and this legislation proposed in North Dakota is the most explicit move toward those ends I’ve seen.

With the water protectors fighting the DAPL in the cross hairs of North Dakota’s proposed HB 1203, we are facing the potential removal of legal barriers to drivers harming protesters or anyone else found to be an “obstructing vehicular traffic” across an entire state. In it’s current form the law would also appear to possibly absolve liability of drivers of vehicles who by negligence maim and kill other drivers as well, if the operator of the struck vehicle is found to be “obstructing vehicular traffic.” The definitions in this legislation are fairly loose, and the phrase “Notwithstanding any other provision of law” used before the new code section and in the amended section on pedestrians, is meant to say this should supersede other codes. HB 1203 would likely also be applied toward bicycling group events like critical mass or social ride gatherings if found to be “obstructing”, among a litany of other potential contexts. I’m not a lawyer or legal expert, but it’s pretty plain to see how dangerous this all is.

I also don’t trust law enforcement to always make a fair assessment of what constitutes “obstructing vehicular traffic”, and intent can be difficult to prove when purposely killing someone looks a lot like unintentionally doing so in a car culture largely permissive of many reckless driving behaviors. As someone who follows bicycling issues closely, it’s all too often that drivers who use their vehicles to “brake check” or swerve and knock cyclists off the road almost never face charges that would imply intent to harm like vehicular manslaughter or attempted vehicular manslaughter, unless there is explicit video evidence or some prior incidents on record that support a pattern of malicious behavior. With HB 1203 this leaves a narrow path, and one that would likely be selectively enforced, for actually holding a driver accountable in anyway at all so long as victims are “obstructions.”

This is getting not so far removed from approaching the kind of campy dystopian nightmares of films like Death Race 2000 where bonus points are awarded for striking pedestrians rather than penalties.

This law would essentially declare open season for the use of cars to harm people who are “obstructing vehicular traffic.” I can’t overstate how dangerous this is if it is allowed to pass into law and stand as a precedent for anywhere else.

I also have to doubt that this will pass at least in it’s currently drafted state, given how extreme it is, but it’s not worth taking any chances. It would unfortunately not surprise me at all to see a “pro-life” slate of Republicans essentially legalize vehicular manslaughter in their zeal for protecting oil companies and automotive supremacy. Should it somehow manage to pass, as written, or something like it, it’s doubtful it could withstand the scrutiny of a Supreme Court challenge, but really something this preposterous and malicious should never leave the drawing board, let alone go into law.

Every time I read through the draft text again I am in absolute disgust that something this vile could become a law. It needlessly threatens lives and imperils essential freedoms. This must not stand. It simply cannot, we cannot let it.


If you, or someone you know lives in North Dakota I especially encourage contacting your state representatives there, the input of constituents is always given priority. I also encourage making the simple gesture of adding no votes on the Bismarck Tribune article on the poll attached to their article on this story to emphasize broad opposition where most people are reading about this. To keep updated on the pending status of the bill, you can follow it here, it’s next step is to go the Joint Transportation Committee on January 20th.

Here is a complete list of state legislators who signed onto the introduction of this bill starting with Keith Kempenich who is cited as the primary architect of HB 1203 in the Bismarck Tribune story, each with links to their individual contact pages.

House:
Representative Keith Kempenich
(R)
As of at least Jan 19th, Kempenich had all contact information wiped from his government page. His e-mail is kkempenich@nd.gov

Representative Mike Brandenburg (R)
Representative Vernon Laning (R)
Representative Bill Oliver (R)
Representative Karen M. Rohr (R)(that a nurse practitioner would back something like this is especially disheartening)

Senate:
Senator Dwight Cook (R)
Senator Donald Schaible (R)


Full text of HB 1203 As Introduced on January 9th 2017:

17.0351.01000

Sixty-fifth
Legislative Assembly of North Dakota

Introduced by
Representatives Kempenich, Brandenburg, Laning, Oliver, Rohr Senators Cook, Schaible

A BILL for an Act to create and enact section 32–03.2–02.2 of the North Dakota Century Code, relating to the liability exemption of a motor vehicle driver; and to amend and reenact section 39–10–33 of the North Dakota Century Code, relating to pedestrians on roadways.

BE IT ENACTED BY THE LEGISLATIVE ASSEMBLY OF NORTH DAKOTA:

SECTION 1. Section 32–03.2–02.2 of the North Dakota Century Code is created and enacted as follows:

32–03.2–02.2. Liability exemption for motor vehicle driver.

Notwithstanding any other provision of law, a driver of a motor vehicle who negligently causes injury or death to an individual obstructing vehicular traffic on a public road, street, or highway may not be held liable for any damages.

SECTION 2. AMENDMENT. Section 39–10–33 of the North Dakota Century Code is amended and reenacted as follows:

39–10–33. Pedestrian on roadway.

HOUSE BILL NO. 1203

  1. Where a sidewalk is provided and its use is practicable, it is unlawful for any pedestrian to walk along and upon an adjacent roadway.
  2. Where a sidewalk is not available, any pedestrian walking along and upon a highway shall walk only on a shoulder, as far as practicable from the edge of the roadway.
  3. Where neither a sidewalk nor a shoulder is available, any pedestrian walking along and upon a highway shall walk as near as practicable to an outside edge of the roadway, and, if on a two-way roadway, shall walk only on the left side of the roadway.
  4. Except as otherwise provided for in this chapter, any pedestrian upon a roadway shall yield the right of way to all vehicles upon the roadway.
  5. Notwithstanding any other provision of law, a driver of a motor vehicle who unintentionally causes injury or death to an individual obstructing vehicular traffic on a public road, street, or highway is not guilty of an offense.

Gary Kavanagh

Written by

Artist/photographer/writer. Walker, rider of bicycles & public transit systems. The oil driven age can't burn forever.