New arrests no laughing matter at Wisconsin Capitol

“There’s a fundamental misunderstanding of this policy if there was a belief arrests were going to stem from this policy,” Jocelyn Webster, DOA Spokesperson, December 2011.

September 9, 2012 by Leslie Amsterdam
Those words from December 2011 have resurfaced recently in light of a busy week of arrests, protests and singing at the Wisconsin State Capitol. Jocelyn Webster, formerly of the DOA Communications team and now serving in Governor Scott Walker’s office, made these comments in response to concerns from citizens about changes in the Wisconsin State Facilities Access Policy for visitors to State buildings. She also stated in a different report, “No one is going to be arrested for not being in compliance with the permit policy. It’s kind of funny that anybody even thinks that they would be. The standard by which law enforcement will take law enforcement action remains the same.”

Jason Huberty is arrested 9/6/12 for holding an 8.5×11″sheet of paper imprinted with Art. 1 Sec. 4 of the WI Constitution. Copyright Leslie Amsterdam 2012

This is no laughing matter. There were 8 arrests last Wednesday for violations of 2.07(2) of the Wisconsin Administrative Code dealing with Displays and Decorations. The arrestees were detained for a variety of infractions such as: holding up pieces of paper quoting the WI Constitution, holding blood drive t-shirts from Muslims For Life, holding signs that said “We heart blood donors” and holding a red heart balloon. Video of Wednesday’s arrests details the infractions.

Three of these four activists were arrested for “illegal display of a sign”. Copyright Leslie Amsterdam 2012

Thursday brought four more arrests and a new twist. A judge’s summary decision on a lawsuit stemming from March 2011 arrests for illegally holding a sign at the Capitol issued a very clear determination:

“a review of the rule’s language, the DOA’s new Facilities Access Policy, and the Offense Reports accompanying the citations establish that § Adm. 2.07(2) does not apply to the Plaintiffs’ conduct of holding signs on the first floor of the rotunda. First, the language of § Adm. 2.07(2) does not prohibit the Plaintiffs’ conduct. The title of the rule is “exterior and interior displays and decorations.” The text of §
Adm. 2.07(2) states that the DOA’s express written permission is required for a sign to be “erected, attached, mounted or displayed.”

Here, the Plaintiffs were issued citations for holding a sign on the first floor of the
rotunda. As such, their signs were not “erected, attached, [or] mounted,” which therefore means that their actions could only fall within the text of § Adm. 2.07(2) if their signs were “displayed.” However, the word “displayed” implies something more than an individual holding a handmade sign over their head. Instead, as is generally known, the Capitol rotunda is frequently a place where freestanding artwork and such things are showcased, especially around the holiday season.

The term “displayed” implies something like a freestanding exhibit showcased in the Capitol, not an individual holding a handmade sign over their head comparing the governor to a character in a comic book. Thus, the terms of § Adm. 2.07(2) does not prohibit the Plaintiffs’ conduct.”

While the plaintiffs did not prevail in their suit, the judges determination proved helpful to the new group of activists challenging the sign holding rule.  The arrests that Ms. Webster referred to as “laughable” have now occurred, even though the  citizen’s activities are clearly not illegal given the judge’s ruling.

Valerie Walasek, a disabled vet, is arrested for holding a red heart balloon, which is considered a sign. Copyright Leslie Amsterdam 2012

Enter the Solidarity Sing Along, a group that gathers every noon hour to sing songs at the Capitol, inside whenever possible and outside on Fridays or when there is a conflict with other activities in the Rotunda. Members of the group decided to move their Friday song circle inside the Capitol in support of the activists that had been arrested for holding signs, defying Capitol Police Chief David Erwin’s request that the singers obtain a permit.

Ryan Wherley’s sign at Solidarity SingAlong #455 on 9/7/12 refers to Jocelyn Webster’s statement. Copyright Leslie Amsterdam 2012

A group that normally has several dozen participants filled three floors of the Rotunda with well over two hundred people, many holding signs, banners and flags. A few police officers were seen documenting and videotaping the proceedings, but there was very little conflict. No arrests were made as the group sang their repertoire of social justice and anti-Walker tunes and chanted “We’re still here”.

Solidarity Sing Along #455 9/7/12, Copyright Leslie Amsterdam 2012

State Representative Chris Taylor, who has been communicating with DOA officials over permitting concerns at the Capitol for several months arrived during the singing to update the crowd about her morning meeting with Chief Erwin over concerns about recent arrests and fears that permitting requests might prove unconstitutional. Erwin and DOA assistant Wendy Coomer met with Taylor and suggested that citizens call the Capitol Police to determine if their activities at the Capitol will need a permit.

Rep Chris Taylor addresses the crowd at Solidarity Sing Along 9/7/12. Copyright Leslie Amsterdam 2012

Rep. Taylor relayed that the new Chief  abruptly ended the meeting when she called into question current arrest criteria and mentioned that it was “unacceptable”  to assess said criteria on a case-by-case basis.  Taylor has been trying for months to get a clear picture of exactly what behavior might result in a legal arrest, so that her constituents and all visitors to the Capitol are well informed and prepared.  She issued a strongly worded response about the Chief’s hasty departure restating her concerns:

When I asked about the specific conditions you were considering in determining whether an individual needed a permit or when making an arrest, you stated that these determinations were being made on a “case-by-case basis” and refused to articulate specific factors that would be considered. Instead, you and Ms. Coomer recommended that anyone considering holding a sign should call the Capitol police to inquire whether a permit would be needed. This gives me grave concern that the public is not being provided adequate notice about what conduct you are prohibiting and under what specific legal authority you are acting. Further, this subjective manner of making permitting and arrest determinations can easily lead to abuse, with the result being that constitutionally protected political speech is being improperly silenced.

Watch video of Rep. Chris Taylor’s addressing the Solidarity Sing Along Friday September 7, 2012 here:

Representative Taylor is also an attorney and constitutional scholar. She had this to say to WCMC about the day’s events:
“It is very frustrating to have a police chief who refuses to provide even the most basic details about why people are being arrested, under what legal authority and what conduct are they now considering unlawful? Why can’t we even have a discussion about this even if we disagree? And yes, it requires asking and getting an answer to specific, detailed questions, which the DOA and police Chief refuse to provide. But these are precious rights, and we must not be deterred until the state doesn’t encroach on our most basic freedoms.”

WCMC was unable to contact Chief Erwin about Rep. Taylor‘s letter. On Friday, local media questioned Erwin about the lack of arrests during the song circle, when people were clearly engaged in activities that resulted in arrests just one day earlier. He responded, “We went right into protection mode, safety, preserve the peace, and that’s what we moved into. Sometimes we do enforcement, and sometimes we just protect and serve. That’s what we did today”.

Capitol police on Friday had this to say:

Watch this video to see David Erwin while he served as Governor Scott Walker’s chief of security in the Winter 2011:

Contact Capitol Police at 608-266-8797 to find out if your next visit to the Capitol will require a permit.