Capitol Police chief's crackdown on protesters appears to be backfiring

2012-09-26T08:00:00Z 2012-09-26T10:36:51Z Capitol Police chief's crackdown on protesters appears to be backfiringSTEVEN ELBOW | The Capital Times | selbow@madison.com madison.com

David Erwin likes to tell the tale of the 5-year-old girl touring the Capitol with her grandmother whom he encountered on July 24, the day after he started work as chief of the Capitol Police. Out of the blue came a scream, and the girl became frightened.

"Grandma, I don't want to be here," the girl said, according to an account Erwin gave to the Wisconsin Reporter, a right-leaning news source. "I don't want to be in this Capitol. I'm scared."

"I knew right there what my mission was here," he said. "I knew that as new police chief my job was to make this building accessible to all."

Erwin, in a Sept. 21 interview with Wisconsin Public Radio, said his concern was with "about 10 people who keep rising to the top" who wreak havoc in the Capitol halls, public spaces and legislative offices.

In response, he's initiated a crackdown. According to the Department of Administration, between Sept. 5, when the crackdown began in earnest, and Sept. 12, at least 23 citations were issued to 12 people for unlawfully displaying signs, obstructing Capitol passageways or hanging signs over railings.

But the people his officers have issued citations to in the past two weeks are not the yellers, stalkers and harassers he was referring to. They are, for the most part, peaceful protesters who were issued citations for carrying signs or banners, or for taking part in the Solidarity Sing Along, which since the massive rallies of early 2011 has come to the Capitol rotunda four days a week to protest the policies of Gov. Scott Walker and Republican legislators in song.

In recent weeks, Erwin and a Department of Administration spokeswoman have echoed nearly identical accounts of incidents of harassment by protesters. DOA spokeswoman Stephanie Marquis refers to the perpetrators as a contingent of the Solidarity Singers, a group largely composed of gray-haired retirees and public employees.

"There's a core group of singers that come every day, and there's a subset group of those singers that has engaged more in harassment," says Marquis.

She describes that harassment as "coming behind desks and yelling at people and following them through the building and following them to their car."

Erwin has gone so far as to say, in a story published on the Wisconsin Reporter website the day before the 11th anniversary of the 9/11 terrorist attacks, that protesters were "terrorizing people at this Capitol."

I asked Marquis for police reports detailing the misbehavior that has been used to justify the recent crackdown. The 13 reports I received, related to incidents in previous months, show that the "subset" she was referring to consists of four people, one of whom was the subject of eight of the reports supplied. Three of the four have been described to me by other protesters as "loose cannons" or possibly mentally ill.

What's more, only two of the alleged perpetrators regularly take part in the Solidarity Sing Along.

"If they had an incident of violence or an incident of disruption from the singalong, they would describe it," says Jason Huberty, who has received six citations in the recent crackdown for holding signs or banners. "Instead they're describing incidents that don't have any relation to the singalong."

The assertions of out-of-control protesters have some critics complaining that Erwin is justifying his actions with bogeymen. Meanwhile, the result has been renewed vigor in the very protesters he wants to tame, and a potential rash of prolonged and expensive civil rights litigation that lawyers are preparing to bring against the state.

"He's trying to set the standard for free speech in the state Capitol's public spaces as what won't startle a 5-year-old girl," says Chris Ahmuty, executive director of the state chapter of the American Civil Liberties Union. "What kind of standard is that? It's sort of a red herring."

•    •    •    •

In addition to the police reports I was supplied, Erwin and Marquis have pointed to a Red Cross blood drive, which according to Erwin was invaded on Sept. 5 by protesters who hurled abusive statements at Red Cross staffers, which prompted police to start arresting people, some of whom who had earlier given blood, for holding signs.

"One of the individuals from Red Cross contacted the Capitol Police and said they had protesters walking through their area, and they were concerned because they were trying to take (medical) information," Marquis says. "And then on Friday they actually got a complaint that one of the people who draws blood said she would not be coming back because she was called abusive names by the protesters."

Requests for police reports detailing the incidents with the Red Cross were unanswered. Marquis says they're under investigation.

Bobbi Snethen, a spokeswoman for the Red Cross Badger-Hawkeye region, says police were called in to deal with a man who was taking video near the medical history table, which raised confidentiality issues.

"That situation was handled simply and quickly, and it wasn't a harassment issue," she says.

"Our staff did not feel threatened," she says. "And that's coming from our collections director who was with the supervisors who were there during those three days."

She says the Red Cross plans to return to the Capitol in November and December.

In the public radio interview, Erwin described another recent incident concerning "a person being followed to a hotel, a female, by male protesters." He said the protesters were trying to get the woman's room number "so they can share it with everybody else."

"These are the actions that some of these people are escalating to," he said.

Repeated requests for an interview with Erwin were unsuccessful. A request to Marquis for details of this incident went unanswered.

Some say that Erwin's crackdown is at least in part an attempt to rid the Capitol of the Solidarity Singers, who have now added Erwin to the list of officials at whom they hurl their musical barbs.

Turns out, his enforcement effort has had the unintended consequence of saving the singalong from near extinction.

After the June 5 recall election that failed to oust Walker from office, people just didn't feel like singing.

"As soon as Erwin opened his mouth about cracking down, our numbers just grew," says Brandon Barwick, who serves as the group's musical conductor. "When people were kind of disheartened we kept it going, but there were probably about 15 to 20 people there. Now we're back up to having around 100 people there every day."

Erwin is demanding that the group fill out permit applications for its daily singalongs, apparently trying to gain a measure of control over a group whose only predictability is that they will show up at noon and leave at 1 p.m., a period of time that is not considered by the state's facilities policy to be official work hours. That policy, codified last December, requires permits for groups of four or more.

On Sept. 17, Barwick was summoned to the office of Dan Blackdeer, deputy chief of police, where he met with Blackdeer and Lt. Todd Kuschel.

"He told me that if we were to fill out a permit, Erwin would sign one and they could even get rid of some of the tickets that they gave out or they would refrain from giving out tickets they were ready to give out," he says.

Barwick, presumably because of his role as conductor of the group, was cited on Sept. 10 for obstructing Capitol passageways. But the Solidarity Singers don't really have a leader, according to participants.

"It's like a neighborhood pickup game," says Brian Standing, a longtime participant. "Everyone knows that the Capitol rotunda is the free-speech zone for Madison. And everyone knows that if you happen to show up between noon to 1 p.m. that people might be singing there. That's it. There's no organization to it. There's this idea that everything has to be hierarchical and organized and there has to be someone behind it all. The only thing behind it is the fact that the Republicans keep ticking people off by doing outrageous crap. That's what people are reacting to."

Needless to say, the singers aren't playing along. I've spoken with a number of them over the past week, and none of them favors getting a permit.

"It's like getting permission from the government to protest the government," Barwick says.

•    •    •    •

In addition, there are unresolved legal questions.

"There are liability issues — that the Capitol Police have too much discretion in terms of who has to post a bond or get insurance — and then the coverage of fees for extra protection," says the ACLU's Ahmuty.

Meanwhile, the state can get ready for another round of expensive and protracted litigation.

"I think it's fair to say there are a number of lawyers who are disturbed about the interference with the First Amendment-protected rights that seems to be going on at the Capitol right now," says civil rights attorney Jeff Scott Olson. "And I'm convinced that these administrative code provisions are as unconstitutional as they can be. So I think you're probably going to see more than one lawsuit filed."

Mike Scott, director of the UW Center for Problem-Oriented Policing, has little doubt that the issues surrounding the crackdown are going to keep a lot of lawyers busy for some time.

"I think it's fair to say that the new enforcement regime is inviting a whole new round of debate, much of which is probably going to end up being litigated in court," says Scott, a former police chief and a Harvard-trained lawyer.

Ahmuty says attorneys are discussing several plans of attack, from vigorously defending the citations to sending a group of four volunteers into the Capitol to pass out copies of the Bill of Rights, intentionally inviting arrest under the four-or-more permit rule.

Then there's the cost and inconvenience of prosecuting the citations.

All of those issued citations appear ready to take their cases to a jury trial, and attorneys are stepping in to take their cases pro bono. And prosecutors from the Department of Justice don't appear to be backing down.

On Aug. 11, well before the crackdown inside the Capitol, peace activist Steve Books was cited for scribbling "This is far from over" on a Capitol sidewalk.

"I've been chalking that for a year and a half," he says.

But this time he was handcuffed, arrested and cited for "other prohibited conduct." On Sept. 21, Books had his final pre-trial conference, and he says state prosecutors expressed their intention to take the matter to trial.

"It's going to consume a lot of their resources," says Patricia Hammel, a member of the Madison chapter of the National Lawyers Guild who is representing several of those cited in recent days. "It's going to consume a lot of court resources. It's going to take the time of a lot of people for something that isn't hurting anyone and isn't disrupting anything. So what's the point? It seems like they're just trying to dissuade people from coming to the Capitol and objecting to anything that's going on there."

Erwin and Administration Secretary Mike Huebsch maintain the enforcement actions were initiated by Erwin, not by higher-ups.

"Let me say this clearly," writes DOA Secretary Huebsch in a letter to state Rep. Chris Taylor, an outspoken critic of the crackdown, "while I have a hand in setting the policy, I do not make the enforcement decisions for the Capitol Police or Chief Erwin, yet I support their efforts."

But observers say it's difficult to imagine that the new police chief could embark on a course that has revived a moribund protest movement and exposes the state to litigation without some kind of marching orders.

Lester Pines, a Madison attorney who has represented many Democratic interests and who is representing Books, says the recent overture to Barwick is a sign that the administration is rethinking its hard-line strategy.

"What I think is that the governor, through his appointee at DOA, Mike Huebsch, probably realized that this crackdown that they decided to do was foolish," he says. "And they're kind of trying to wind their way out of it. There are some people at the Capitol who have sort of gone overboard with their behavior. What's happened with this crackdown, they're starting to cause more problems than they're solving. They don't want to give citations to all these singers."

Scott says that unless the administration set the crackdown in motion as a way to get the courts to decide issues involving free speech and Capitol access, it's an unmitigated flop.

"If the objective was to reduce the amount of noise, disorder, the number of protesters in the Capitol, then I think it's fair to say that this has backfired," he says.

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