Three spent casings found in protester's revolver, ATF agent testifies
CAROLINE GRUESKIN Bismarck Tribune Dec 12, 2016
A pipeline protester accused of firing a gun three times toward police officers had as many spent shell casings in her revolver and additional bullets in her pockets, a federal agent testified Monday.
The testimony was among the evidence U.S. District Court Magistrate Charles Miller considered in finding probable cause against Red Fawn Fallis in U.S. District Court in Bismarck.
The 37-year-old Denver woman is charged with being a felon in possession of a firearm in connection with the incident on Oct. 27, when she was arrested as police pushed protesters from a northern "front line" camp atop the Dakota Access Pipeline route.
Fallis is being held in custody due to the charge. Her next court date was not set Monday. If convicted, she could face up to 10 years in prison.
Fallis' case has drawn national attention with a movement to "Free Red Fawn." A website started for her says she was working as a medic on Oct. 27, and that while she was being arrested, "one officer pulled his weapon and placed it against her back. While she was pinned to the ground, shots were fired."
Her cause has been endorsed by the actor Mark Ruffalo, and an online fundraiser has solicited nearly $38,000 on her behalf.
During the preliminary hearing, Alcohol, Tobacco and Firearms Special Agent Derek Hill provided testimony based on reports from law enforcement involved in the arrest and a review of her criminal history. He was on scene that day but did not witness the arrest, he said.
Hill said police targeted Fallis for arrest on Oct. 27, because she was acting as an "instigator" and "agitator" by walking up to police and yelling at them, then turning around to get others riled up. He said officers waited for her to separate from the group, then brought her behind the police line for arrest.
It was during the arrest, as two officers tried to pin her down and force her into cuffs that she fired three shots from a gun in her left hand, Hill testified. He said the revolver removed from her hand had three spent casings and two live rounds in it. Officers also found two speed strips with six live rounds each in her pockets, he said.
During the hearing, Assistant U.S. Attorney David Hagler also showed an online video of Fallis' arrest, which Hill said one of the arresting officers confirmed as taken of the incident. The video, which was shot from the protester side of the confrontation, shows a person being arrested behind the police line and three pops can be heard. Hill conceded that no gun is visible in the video.
Hill also testified that Fallis made comments to law enforcement following her arrest along the lines of, "everyone has a right to a firearm" and "if I wanted to shoot or kill you law enforcement, I would've."
Fallis has a prior felony conviction for being an accessory to a crime in Colorado, Hill testified. He said the gun, which was at one point at a shop in Mobridge, S.D., is the product of interstate commerce.
Both of those components, along with Fallis possessing the gun, would be necessary to prove the charge before a jury.
Miller acknowledged that some of the evidence presented Monday was hearsay, which is allowed in a probable cause hearing but would not be allowed in a trial. He said he was able to make the finding even without the hearsay statements regarding what the defendant allegedly told officers.
Xan Joi, a pipeline protester from Oakland, Calif., who was in court Monday said of the testimony that, "nothing was conclusive."
"She was on the ground with six men on top of her and somehow she's able to get a gun and fire it?" Joi asked. "How many times do we witness police saying someone has a gun and shoot them?"
Fallis is being represented by Chris Bellmore, of the federal public defender's office. Miller said in court he was aware of fundraising for Fallis' defense and asked her to fill out a financial affidavit relating to funds she has, as she may need to hire her own attorney or contribute to the public defense costs.
Fallis was previously charged in Morton County with attempted murder, but the charge was dropped when the federal case was filed in late November.
