Observations from Kissick v. Huebsch Et. Al.

April 18, 2013  by Leslie Amsterdam

It was an interesting day in Western Federal District Court in Madison on April 17 as University of Wisconsin-Madison Assistant Professor Michael Kissick and the ACLU of Wisconsin sought a temporary injunction against the Wisconsin Department of Administration and their State Facilities Access Policy, which mandates that groups of four or more people who sing or gather in the Capitol rotunda to express their political views must obtain a permit.

The lawsuit stems from Professor Kissick’s desire to sing political tunes in the rotunda during the noon hour with others who participate in the Solidarity Sing Along. Professor Kissick maintains that he has been unable to express his political views with the group due to fear of being arrested or issued a citation, both of which have happened numerous times since the Capitol crackdown began in September 2012.

No cameras or other electronics were allowed in the courtroom, which was filled with lawyers, witnesses, court officials and over 30 spectators who at one time or another have attended the Solidarity Sing Along. Susan Riseling, UW-Madison police chief and assistant vice chancellor, and former Capitol Police Chief Charles Tubbs testified for the plaintiff, while current  Capitol Police Capt. Todd Kuschel testified for the defendants. This overview is meant to highlight certain statements from the witnesses that were deemed noteworthy by courtroom observers.

Chief Riseling started testimony for the plaintiffs, establishing that she was responsible for law enforcement at the Capitol during the historic Wisconsin Uprising of 2011, during which time numerous agencies joined forces to assist the relatively small Capitol Police force maintain public safety. She testified that a safe number of people in the entire building was determined to be  “9,000” and that “somewhere over 700” was a safe number in the ground floor rotunda. She said that people’s “behavior changes the equation,” referring to safety concerns.

When asked to characterize the crowds during the historic protests, she stated that there were “a lot of people and they were very loud.”  When questioned about policies and rules specific to the UW’s reservation policy, which assigns space for the public to use, she added, “I’m trying to think of the last demonstration that got a reservation at the university.” Chief Riseling was asked about her opinion on whether four people was the appropriate size group for the DOA to require a permit for and she responded, “I don’t understand how four is reasonable. I don’t know how I could have said four and not ended up here in court. I can’t imagine the university trying to govern groups of four.”

When asked how many protesters she could handle with four to six officers (the usual number of Capitol Police on duty on any given work day over the noon hour at the Capitol), she replied,” I would easily deal with a few hundred protesters with four to six officers.”

Charles Tubbs, former Wisconsin State Capitol Police Chief after testifying in a hearing re Kissick vs, Huebsch being defended by ACLU of Wisconsin in Western Federal District Court. Photo: Leslie Amsterdam

Charles Tubbs was next to testify about his experience with both permits and protesters on his his watch during the protests. He made it clear that he knew that everything would change as Governor Scott Walker announced his budget repair bill: “I immediately knew that we would be experiencing significant changes in the building.”

Tubbs said his law enforcement response was about “thinking outside the box and the best way to provide voluntary compliance or community policing … to obtain the best results for the situation” and “Community policing worked extremely well to make protests safe and somewhat orderly.” Tubbs testified that he couldn’t recall anyone getting arrested for not having a permit, and said that nine out of the 16 arrests were citizens “demanding” to be arrested.

Judge William Conley asked Tubbs if he had advised people that they would need a permit to exercise free speech or if he had ordered officers to issue a citation for failure to have a permit for protest activity. Tubbs could not recall having advised protesters about permits and did not order citations issued for lack of permits.

Observers listened intently as Tubbs maintained that the song circle at the heart of the case was careful to not interfere with a permitted event, “in nearly every case they complied” and “I can’t recall any violent activity from this group.” Tubbs also noted that his use of voluntary compliance “worked very well” with the singers. Tubbs maintained that he would not change staffing needs if 50 people showed up to sing over the noon hour or if 50 people showed up to attend a wedding at the Capitol, and said he did not need four officers per arrest, a  calculation put forth by current officials. “I did not calculate four officers per arrest,” he said, adding that a safe number was two or three.

Captain  Kuschel answered questions on direct examination from the defense team about current procedures and the importance of the permits for groups of four or more. When asked “Why don’t you just disperse them (the singers)?” he replied, “We are trying to get compliance. We are trying to get people to see that the permitting process is the fairest way to do it (allocate space). We are trying to let it work its way through the court system.”

When asked about the outdoor sing along, he maintained that “If it’s outside, it doesn’t really affect the normal operations of the Capitol.” Kuschel admitted that “the Assembly and the Senate, they don’t fall under DOA authority.” Kuschel also established that a complete stranger who stumbles upon the song circle at the Capitol and happens to join in singing the beautiful hymn “We Shall Overcome” is, in fact, in violation of the permitting process if the group does not have  a permit.

When discussing staffing concerns, Kuschel testified that knowing who will visit the Capitol on any given day via a permit request will allow officials to maintain appropriate staffing levels, as well manage other duties and tasks. “We have lots of things going on [and] it would help us to know.” Currently, the Capitol is staffed to handle the song circle over the noon hour because “we assume that they will be there.”

Judge Conley asked Kuschel about a “standing” permit status for the singers, like the Dane County Farmers’ Market has in place, and he replied, “I would be opposed to that. I do policing for 2.5 million Wisconsinites. I want to be able to have them voice opinions.”

Greg Gordon summed up what he learned about staffing concerns from the afternoon testimony like this:

You need a permit if you want to go to the Capitol as an individual and read Shakespeare out loud or sing “My Bonnie Lies Over the Ocean.”

You don’t need a permit if you want to go to the Capitol with up to two friends and give a speech about funding the teaching of Shakespeare in public schools, or sing “Bring Back Wisconsin to Me” to the tune of “My Bonnie Lies Over the Ocean.” If you want three friends to help you sing “Bring Back Wisconsin to Me,” or listen to your speech about Shakespeare, you need a permit.

If you are singing “Bring Back Wisconsin to Me” by yourself, and three tourists you’ve never met start singing with you, you can be arrested and cited for not having a permit, as can the three strangers.

If the Sing Along did not happen on a regular, normal day in the Capitol, five Capitol Police officers would be assigned to patrol the building and grounds. If, on the other hand, the police anticipated the unpermitted Sing Along to happen, five Capitol Police officers would be assigned to patrol the building and grounds. Finally, if the Sing Along were to obtain a permit for that day, five Capitol Police officers would be assigned to patrol the building and grounds.

How many people in this photo are part of the same group, and do they need a permit? Photo: Leslie Amsterdam