Couple who unfurled anti-Dakota Access Pipeline banner at Vikings game ask judge to dismiss charges
MINNEAPOLIS — A Hennepin County judge is deciding whether protesters who hung a banner at U.S. Bank Stadium during a Vikings game demanding the sponsor divest itself from the controversial Dakota Access Pipeline were trespassing or had a constitutional right to do it.
Karl Zimmerman and Sen Holiday are using the misdemeanor case against them to amplify their opposition to the North Dakota energy project by calling witnesses to testify about the dangers of climate change and how civil disobedience can affect environmental policy, according to court records.
They argue trespassing, burglary and disorderly conduct charges Minneapolis levied against them should be dismissed because the giant banner they unfurled after climbing a stadium truss during Minnesota's Jan. 1 game against Chicago was a "creative act of protest" protected by the First Amendment.
Prosecutors counter Zimmerman and Holiday broke the law by staging a political protest in a restricted area of the stadium while endangering the safety of several hundred fans who were forced to evacuate their seats during the Vikings' 38-10 season-ending victory over the Bears.
Judge Charlene Hatcher is scheduled to rule Monday on a defense motion to dismiss all charges. A hearing is scheduled Aug. 21, when the case could be settled or scheduled for trial.
Zimmerman and Holiday could not be reached for comment. Their lawyer, Tim Phillips, declined comment. So did the Minneapolis City Attorney, which is prosecuting the case.
In their defense, the protesters are prepared to put the Dakota Access Pipeline on trial. The pipeline started interstate crude oil delivery in May after President Trump signed an executive order to expedite completion of the project after environmental protesters had shut down construction for several months.
Zimmerman and Holiday listed 23 potential witnesses, mostly university professors prepared to testify about the causes and impacts of climate change and how grassroots activism can bring about political and policy change.
Also scheduled to testify on their behalf is assistant city attorney Burt Osborne, who works for the agency prosecuting Zimmerman and Holiday. Osborne was "sitting below the banner and was impressed with the defendants' rope work," according to the defense motion.
The City Attorney's Office declined to comment about Osborne's potential testimony.
If convicted on each count, Zimmerman, 33, of Minneapolis, and Holiday, 27, of St. Paul, face up to 90 days in jail and a $1,000 fine.
Police say Zimmerman and Holiday refused commands to come down from a catwalk after they had rappelled about 20 feet down to unfurl a 40-foot vertical banner, which read "USbankDIVEST #NODAPL" during the New Year's Day game.
Witnesses told police the pair hopped a locked 3-foot-high glass wall separating the truss from a pedestrian walkway and scaled a ladder to a catwalk above Section 125 behind one of the stadium end zones.
"Only authorized personnel have keys to those locks," assistant city attorney Clair Cole wrote in a counter motion to the court. "No one gave the defendants permission to enter the glass enclosure or to access or climb the ridge truss."
Zimmerman and Holiday dangled next to the vertical banner from the start of the second quarter until the end of the game.
Fans seated below the climbers were evacuated for safety reasons "since the banner had some sort of weights attached to the bottom," according to the criminal complaint.
No one was injured during the protest, and the Vikings reimbursed displaced fans. When the game ended, the two protesters climbed down and were arrested without incident. They were jailed overnight and released Jan. 2 while Minneapolis police investigated.
U.S. Bank Stadium manager SMG said the protesters used tickets to enter the game and smuggled nylon rope, carabiners and the banner through security and metal detectors. Surveillance photos showed Holiday and Zimmerman entering the mobile express lane at the Legacy Gate and later walking through the north main concourse about an hour before they scaled the third-level truss.
New column screen walls are being constructed at the ridge truss where Zimmerman and Holiday scaled to hang their banner, according to SMG marketing and communications manager Lisa Niess. The work is scheduled to be completed Aug. 25 — two days before the Vikings' first home preseason game against San Francisco.
"The physical structure has not changed yet but our security partners are constantly reviewing strategies and enhancing layers of security to make sure this doesn't happen again," Niess said. "Security is always a top priority and we want to protect our employees and fans so they feel safe when they come here to spend their free time."
Phillips said the burglary charge should be dropped because Zimmerman and Holiday legally entered the stadium with tickets. Prosecutors, they argue, are enforcing a disorderly conduct statute that is "unconstitutionally overbroad if it prohibits or chills a substantial amount of speech that does not fall into categories (such as) obscenity, defamation, fraud, incitement and speech integral to criminal conduct."
"At most, people attending the football game were annoyed by (the) defendants' behavior," Phillips wrote. "(The law) should not be used to combat rudeness or for social engineering. Moreover, no one was placed in fear of imminent danger."
Cole argues Zimmerman and Holiday's conduct was not constitutionally protected free speech.
"It is their actions in entering onto a prohibited area and rappelling down from a truss and hanging a banner, thereby putting the people beneath at risk, that constitute the basis of the charges," Cole wrote. "They knew or had reasonable grounds to know that their conduct would disturb the game."
Zimmerman and Holiday held a news conference shortly after their release from jail to repeat their demands that U.S. Bank divest its financing deals with builders of the Dakota Access Pipeline, a 1,172-mile system that runs underground from western North Dakota to southern Illinois.
Several Native American tribes opposed construction, arguing the oil being delivered threatens sacred burial grounds and water supplies on tribal lands in North Dakota and Iowa.
Zimmerman and Holiday have refused to answer questions about how they planned the stunt in front of 66,808 football fans, their climbing expertise, tactics or safety risks to them and spectators.
This is not the first time Holiday was arrested for scaling a public structure to hang a protest banner.
In October 2013, she was convicted in Hennepin County of petty misdemeanors and fined $378, according to court records. Minneapolis police said she climbed the Washington Avenue Bridge and rappelled 80 to 100 feet below the street surface to unfurl a large yellow sign, which was not described in the criminal complaint.
After initially ignoring an officer's commands to come down, Holiday eventually climbed back onto the bridge and surrendered, according to the complaint.
Phillips wants Judge Hatcher to prohibit Holiday's prior conviction from being used against her in the U.S. Bank Stadium case.