A UW-Madison professor and the ACLU of Wisconsin sued the heads of the state Department of Administration and Capitol Police on Monday to block enforcement of rules for gatherings at the Capitol that have led to dozens of arrests and tickets since September.
The lawsuit, brought by Michael Kissick, an assistant professor in the UW-Madison School of Medicine and Public Health, says that the permit policy being enforced at the Capitol violates the U.S. Constitution because it is content-based, vague, overly broad and restrictive.
The lawsuit was filed in U.S. District Court in Madison, along with a motion for a preliminary injunction barring enforcement of the permit policy by DOA Secretary Mike Huebsch and Capitol Police Chief David Erwin.
The lawsuit states that the permit policy violates the free-speech and due-process rights of those who gather at the Capitol. It asks that DOA and police be permanently barred from requiring permits and continuing to arrest or cite protesters for failing to obtain permits.
Stephanie Marquis, DOA spokeswoman, said DOA's legal staff will review the lawsuit. But she defended the permit process.
“The permitting process has been in place since 1979, and it is there to coordinate and share the Capitol with other users," Marquis said. "Both state and federal court cases have found that permit requirements are constitutional and do not infringe on free speech. All groups must follow the permitting process, and the Capitol Police issue hundreds of permits each year regardless of political party, affiliation or content.”
According to the lawsuit, Kissick took part in protests at the state Capitol from the spring of 2011, when thousands of people converged on the Capitol to protest legislation limiting public sector union rights, until the fall of 2011. He occasionally joined the Solidarity Singalong in the Capitol rotunda at noon on weekdays.
But he stopped on Sept. 13, 2012, when he went to the Capitol to take part and saw participants being ticketed. When he asked what he needed to do to avoid a ticket, the lawsuit states, he was told that anyone in the group could be ticketed.
In early September 2012, the lawsuit states, the newly appointed Erwin began ordering arrests and citations to enforce a permit process that was devised for state buildings and issued in late 2011.
Under the policy any performance, ceremony, presentation, meeting or rally cannot be held in the Capitol without a permit. Tourist activities, family visits and other activities are excluded from the permit requirements.
Rallies are defined in the policy as gatherings of four or more people who promote a cause. The lawsuit states that Capitol Police decide whether a gathering is a "rally," and whether its activity is designed to promote a cause. Police can charge permit-seekers for law enforcement expenses.
The lawsuit states that Capitol Police didn't enforce the permit requirements from December 2011 to September 2012. But after Erwin was appointed chief, he said he intended to enforce the permit requirement and began arresting and issuing citations to protesters, including those taking part in the Solidarity Singalong.
The state Department of Justice, instead of the Dane County District Attorney's Office, has been handling prosecution of the citations in court.
In a recent Dane County court decision, a judge ruled that the state has the right to require that anyone "conducting" a demonstration get a permit. But citations against that particular protester were dropped by DOJ because it could not prove he was leading a demonstration.