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Michael Kissick and the ACLU of Wisconsin took the fight against Scott Walker's assault on free speech and assembly in the Wisconsin State Capitol to a new theater on Wednesday when their case received a hearing in federal court. This case marks the first time Walker's attempt to quell political dissent through administrative rules has been challenged offensively in federal court with the State as defendant.
Chief U.S. District Judge William M. Conley of the Western District of Wisconsin presided over five hours of arguments and testimony in a preliminary injunction hearing against the Wisconsin Department of Administration and the Capitol Police. Kissick and the ACLU requested the court to prevent the state from enforcing administrative rules that they believe violate the First Amendment of the U.S. Constitution.
The hearing focused on two issues: Costs associated with permits, and whether decisions Capitol Police officers make when issuing permits and citing or arresting people for alleged violations of the recently created Facilities Access Policy and newly revised Administrative Code Chapter 2 are content-based.
Since September 2012, Capitol Police have issued more than 140 citations for violations of the administrative code having to do with gathering without a permit, possession of hazardous materials (paper signs and cloth banners), and obstruction to participants in the Solidarity Sing Along, a loose-knit and ever-changing group of people who gather in the Capitol rotunda to sing political songs over the noon hour. To date, sixty-eight of those cases have been dismissed, and none have been successfully prosecuted.
The federal courthouse in Madison is located just two blocks away from the Wisconsin State Capitol, but it might as well have been set in another country for the wildly different representations of reality put forward by Department of Justice attorneys on behalf of the state on the one hand, and the arguments of the plaintiff and their witnesses on the other.
About thirty people observed the proceedings -- a handful of reporters, a few attorneys who represent people who have been cited or arrested recently by the Capitol Police, and twenty or so people who frequent the Sing Along. Most of the audience members have been over-exposed to the perverse logic and propaganda of the Walker administration for the past two years, so they weren't nearly as shocked by the twisted arguments put forward by three Assistant Attorneys General in favor of restricting access and expression in the Capitol as Judge Conley appeared to be.
Had he known the extent of rabbit hole into which he was about to descend, Judge Conley might have opened the hearing with a reading from Alice's Adventures in Wonderland:
If I or she should chance to be
Involved in this affair,
He trusts to you to set them free,
Exactly as we were.
The cost issue was largely conceded by the Plaintiffs when language modifying a provision that allows the Capitol Police to charge people or groups for overtime policing costs for their event was pointed out and explained to the court.
The main point of dispute revolved around the definition of an "event" as set forth in the Facilities Access Policy: "Any performance, ceremony, presentation, meeting, rally, organized tours not led by department or legislative staff or officials, festival, reception or the like held in public areas of state facilities or buildings."
While an "event" of any size triggers the requirement for organizers to apply for a permit at least three days in advance, a "rally," defined as, "any gathering of people for the purpose of actively promoting any cause" is a sub-set of an "event," and only requires a permit if there are four or more people involved.
(Dizzy yet? I'll spare the gentle reader the Department of Administration's definition of a "spontaneous event" and the behavior expected of those who would spontaneously engage in one.)
Attempting to grasp the relationship between rally and event, Judge Conley asked Assistant Attorney General Maria Lazar, "Why do you even have a definition of a rally? What's the point?"
She answered, "If one person walks into the Capitol quoting Shakespeare, that's a performance and would require a permit."
Judge Conley: "One person needs a permit? What does that mean? If I discuss Shakespeare with great animation with a friend in the Capitol, I would need a permit?"
Lazar: "The police would have the right to ask whether or not you have a permit, and to ask you to lower your voice."
Judge Conley: "You're not helping your cause here. So three people could argue about whether or not Shakespeare could be taught in public schools and they wouldn't need a permit?"
Judge Conley: "Would you agree that at some point an officer will have to decide whether or not speech is promoting a cause?"
Lazar: "Yes. They will give favorable treatment for political speech."
Judge Conley: "The government is engaged in content-based decisions about speech."
Lazar: "A favorable treatment is not unconstitutional."
Judge Conley: "You're saying if it's more favorable, it shouldn't be a factor. But you agree that someone will have to determine the category of speech?"
Photo by Rebecca Kemble.
Through the looking glass of Scott Walker's world, restricting all manner of expressive behavior in the public forum of the Capitol rotunda to require a permit for all of it, but cracking the door open a wee bit for three or fewer people to "promote a cause" is defined as favorable treatment.
Sounding like the Red Queen herself, Lazar quipped, "This is a case of no good deed goes unpunished. We're giving them more rights and they're still complaining!"
Lazar went on to explain that the number four was determined by calculating how many Capitol Police officers are typically on duty in the building. She argued that it takes four officers to carry one person out of the building if they are resisting arrest, and there are rarely more than twelve officers on duty. Therefore, if more than three people form a rally they would need to increase the number of officers available to respond.
ACLU Attorney Larry Dupuis argued that requiring a permit for the sake of a permit in a building that was designed and built quite specifically to be a public forum for citizens to air and exchange political views "exalts bureaucratic hurdles over expression" and is therefore unconstitutional. He argued that the state's permitting scheme is too broad and that they would have to narrowly tailor permit requirements to time, place, and manner restrictions in order to pass constitutional muster.
Dupuis further argued that the "combination of permit requirements for a tiny group and punishing people for not having a permit is unnecessary to achieve the government's goals" of managing the public space. On the state's argument that police staffing levels were the key factor in determining permit conditions, Dupuis said, "The permit process doesn't predict whether you'll have to carry people out, so Capitol Police staffing is not relevant."
Judge Conley asked the plaintiffs to suggest a group size for which it would be reasonable to require a permit for the use of the rotunda. Attorney Dupuis argued that he couldn't give a specific number and that the needs of the state to manage the space could be met under their current voluntary space reservation system.
In another mind-bending flight of fancy, even though the scope statement for the revised emergency rules relating to permitting explicitly cite the 2011 occupation of the Capitol, Lazar asserted that "it's not the case that these (rules and access policy) were implemented because of the 2011 protests."
Judge Conley wasn't buying it. He said: "The 2011 changes that were made to the rules and the new access policy -- the Solidarity Sing Along clearly prompted the response from the Capitol Police. To say it wasn't a result of those activities is inconsistent with the apparent ramping up of what is or is not permitted... To say there is not relationship isn't accurate."
In the afternoon four people testified on the question of appropriate group size. University of Wisconsin-Madison Police Chief Susan Riseling, former Capitol Police Chief Charles Tubbs, Michael Kissick and Capitol Police Captain Todd Kuschel all delivered their opinions on the permitting process and the current approach to policing the rotunda.
Chief Tubbs was in charge of public safety in the Capitol and all other state-owned buildings in the winter of 2011 when Scott Walker came to power and "dropped the bomb" on the state with his Budget Repair Bill that gutted public sector unions. In his testimony Tubbs said, "There was a significant change in the atmosphere at the State Capitol. There were protests, rallies and unhappiness about changes the state was facing."
Chief Riseling was called upon to manage the interior of the Capitol during those historic protests during which the building was continuously occupied by people lobbying against the Budget Repair Bill for nearly three weeks. Riseling said there were as many as 26,000 people inside the Capitol at the height of the protests, a number of people that was "exceedingly unsafe" for capacity management purposes.
She testified that as part of her responsibilities she assessed the capacity for the entire building and determined that 9,000 people could safely occupy it. The ground floor of the rotunda alone could safely hold a little over 700 people. Under cross examination by Assistant Attorney General Daniel Lennington, Chief Riseling said that figure "took into account the needs of workers who wanted to cross the rotunda, tourists, constituents, school groups, etc." and allowed for safe exits through the 24 doors on the ground floor.
When asked how many officers she would need to police that size of crowd in that space, Riseling said, "I could easily deal with 700 protesters with twelve officers." However, she cautioned that "behavior changes the equation. One unsafe person can be too many people."
When asked directly about her opinion regarding the permit requirement for a group of four people, Riseling said, "I don't understand how permitting a group as small as four people is reasonable. I don't know how I could have said four people and not be where we are right now -- taken to court."
Both Chief Riseling and Chief Tubbs emphasized their reliance on community policing techniques and their roles as negotiators in tense situations rather than on their roles as strict enforcers of administrative policy. "We deal with the behavior that we're confronted with," said Riseling.
Chief Tubbs characterized the Capitol Police's handling of the unprecedented occupation of the building and the associated mass rallies and marches as "extremely successful."
"We tried to get voluntary compliance working cooperatively with citizens, government, and law enforcement to work out a plan to deal with a system for accommodating everyone's needs. My number one goal was zero arrests, zero injuries, zero property damage, and no riot gear unless absolutely necessary. Law enforcement was geared toward protecting First Amendment rights while allowing the work of government to continue," said Tubbs of his approach to the uprising.
Chief Tubbs said that in the five months between February 2011 and June 2011 only sixteen arrests were made, and nine of those were "because those people demanded to be arrested."
Tubbs described the Sing Along as generally respectful and peaceful, although sometimes "problematic people would try to hide their behavior behind this group." When that happened the Capitol Police dealt with those people's behavior individually and did not attempt to shut down the group.
He said that he had encouraged regular attendees of the Sing Along to get a permit, but did not penalize them for their failure to do so. "The building has a history of people being allowed to sing during the lunch hour. I advised that if other groups had permitted use that they go outside. In nearly every case they complied." That practice continues up to this date.
When pushed on the question of the size of a group he would consider reasonable for requiring a permit, Tubbs said, "I would take into consideration the nature of the protest and what else was going on. I question the number four. I've been able to manage larger protests and maintain order in the building."
Plaintiff Michael Kissick briefly took to the witness stand to explain how he believes his free speech rights are constrained by the permitting requirements and the relatively recent enforcement actions. Referring to confusion about what constitutes a group and how one becomes a member in the eyes of the Capitol Police, Kissick said, "I don't want any cross with the law and it began to feel very unsafe in terms of the police activity." Kissick testified that he stopped singing inside the building in September 2012 for fear of being arrested.
Last on the witness stand was current Captain of the Capitol Police Todd Kuschel. He was hired as a full time officer in 2011 and described his duties this way: "I'm in charge of special operations with overall responsibilities for control. I'm third in command after the Chief and Deputy Chief."
Captain Kuschel, who mentioned that he worked for the private consulting firm Halcrow CH2MHill on an O.A.S. contract in Barbados training port workers on Incident Command Systems, stressed the need for the Capitol Police to know what is going on in the building. He said the permitting system is the only fair way to accommodate competing interests in the building.
Straying wildly from the question of the size of the group for which it would be reasonable to require permits, Assistant Attorney General Daniel Lennington asked Captain Kuschel, "During arrests, do other observers or participants swarm or interfere with arrests?"
Captain Kuschel replied, "Yes. During the Molotov cocktail incident."
This was an incident in which Capitol Police received information from the friend of a young man who had reported on Facebook that he was going to bring a Molotov cocktail into the building. After a bungled arrest of the wrong person, Capitol Police apprehended the man in question and determined that the contents of his backpack were not explosive. Videos and pictures of both arrests show that there was no swarming or interfering with the arrests.
Judge Conley requested the plaintiffs to provide him with case law citations answering the following question by the end of the day today: "Is it a content-based violation of First Amendment rights if the state creates more favorable regulations for core political speech?"
His dilemma is in some ways similar to that of the executioner vexed with carrying out the Red Queen's orders to cut off the floating head of the already decapitated Cheshire Cat: "You couldn't cut off a head unless there was a body to cut it off from: that he had never had to do such a thing before, and he wasn't going to begin at his time of life."
Judge Conley gave the state until next Tuesday to respond.
Rebecca Kemble reports for The Progressive magazine and website. She also participates when she can in the Solidarity Sing Along.