“Trespass legal for government employees”

By Brenda Aplin

April 22, 2009

One of the saddest days for all Americans happened on April 21, 2009, when precedent was set in the Eighth Circuit Federal Court, Rapid City, SD. Judge Richard H. Battey sentenced Marc Wisecarver to 3 years in prison for protecting himself against a trespasser who had threatened Wisecarver’s life.

Eventually it became known that the trespasser, named Duke Bourne, was a soil conservation officer for the federal government, who said on the stand that he could go anywhere he wanted because he worked for the government.

On April 29, 2008, Bourne drove onto Wisecarver’s property, passed ‘No Trespass’ signs, ignored Wisecarver as he tried to get his attention, and proceeded to chase Wisecarver’s horses with a pickup truck. As the horses circled, Bourne continued to pursue them at a high speed in a tighter and tighter circle.

Wisecarver ran to his house and got a rifle. Firing a shot into the air, he was finally able to get Bourne’s attention. Bourne then turned his vehicle on Wisecarver as if to run him over. That’s when Wisecarver fired a round through the radiator aiming for the ground.

Bourne wasn’t scared. He jumped out of the truck and ran towards Wisecarver stating, “You shot my tire.” Wisecarver said “No, I shot your radiator and your trespassing so get off my property.” At no time did Bourne identify himself or what he was doing on Wisecarver’s property. After being order to leave because he was trespassing, Bourne walked off the property and Wisecarver called the police.

That evening, Wisecarver was arrested for discharging a firearm and destruction to government property. Bourne was never arrested or charged with anything because he was a federal soil conservation officer. Why would a soil conservation officer not identify himself, and why would he deliberately chase horses?

This incident happened on the Pine Ridge Indian Reservation. The Tribal Police Officer, Paul Forney, that evening arrested Wisecarver and said that he was ordered to arrest Marc by the Bureau of Indian AffairsSuperintendent, Robert Ecoffey, along with the Police Captain Milton Bianas and Police Chief Joe Herman or lose his job. Eventually, the charges of Discharging a Firearm and Demage to Government Property were dropped with prejudice in Tribal Court so the charges could not be brought up again. However, that didn’t please the BIA Superintendent so he had charges filed in Federal Court. That’s where the precedent was set that affects all Americans.

On Jan. 29, 2009, a jury immediately found Wisecarver innocent of assaulting a federal employee by reason of self-defense. However, the true assailant, the federal employee Duke Bourne, has never been charged with trespassing, or assault with a dangerous weapon, or attempted murder. This opens the gate for any government employee to assault any American citizen and not be held accountable.

Nevertheless, the Federal Judge Richard H. Battey ordered the jury to consider the destruction to the weapon, the pickup truck, as a charge separate from the acquittal of self-defense. How can blocking a weapon generate a criminal charge? The U.S. Constitution states that citizens have the right to protect themselves.

Of course, Wisecarver damaged the pickup truck. That was the only way he was going to stop Bourne from running over him, in the middle of the country where there were no witnesses. So the jury, under threat of contempt of court by Judge Richard Battey, found Wisecarver guilty of deprivation of government property. The same charge had already been dismissed in Tribal Court. Isn’t this double jeopardy?

On April 21, 2009, Judge Richard H. Battey sentenced Marc S. Wisecarver to three years in a federal prison plus three years supervised release for damage that was less then $2,400.

Wisecarver was trying to protect himself and his property. That is allowed under the U.S. Constitution. The Judge said that Bourne as a government official could go anywhere he wanted. This is where the danger starts for all American citizens. It used to be that only the police could enter property if a crime was being committed. Now, with this case, any government official: city, state, county, tribal, or federal, can enter a person’s property, and if that person tries to defend themselves, they could be sent to prison. The precedent has been set.

The criminal minded will relish this court decision. Even though some states, including South Dakota, have “castle protection laws” allowing a resident to use physical force to protect themselves and their property, which is also in the U.S. Constitution, this Battey ruling sets federal precedent and will impact state laws.

Wisecarver’s public defender is appealing the sentence. In the meantime, however long it takes for the appeal to overrule this judgment, the rest of the United States is wide open to the trespass by any government official, and help the poor soul who tries to defend himself or his property. He or she could get sentenced to three years in a federal prison. What damage has been done to the U.S. Constitution?

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Brenda Aplin, Exeter, England, has been working with Native American people of the Pine Ridge Reservation, South Dakota, U.S.A for almost 7 years. She may be contacted at www.lakota-aid.co.uk