On 19 October 2017, our own PK Hammel testified about SB303 and SB304. These bills "allegedly" address rioting and blocking of roadways. Here is her testimony:
The Madison chapter of the National Lawyers Guild opposes the proposals to further criminalize public protest which are the basis for SB 303 and 304, the “riot” act and adding penalties for blocking access to streets and buildings. This legislation is unnecessary and constitutionally over-broad in sweeping protected speech and assembly into the criminal code and making felons of law abiding citizens.
To be clear, threatening an act of violence against a person is already a crime. Section 947 of the Wisconsin Statutes already prohibits disorderly conduct (misdemeanor), disrupting a funeral or memorial service (misdemeanor or felony for repeat offenders), intimidation or harassment including by use of a computer (forfeiture to felony), threats of bombs or biological or toxic substance release (felonies) terrorist threats (felony since 2015) and unlawful assemblies (misdemeanor) including blocking entrances to buildings and failing to disperse when ordered, with additional punishments for University of Wisconsin students and employees.
Causing damage to property is also currently a crime in Wisconsin pursuant to sec. 943 of the statutes with enhanced penalties (felony) for damage to roads, public utility property and archaeological or cultural sites. Assault against another person is also a crime under sec. 940 of Wisconsin’s statutes; battery is generally a felony now, with increasing penalties for battery to vulnerable individuals and special provisions for vulnerable individuals, and law enforcement officers (threats are also felonies).
So what do SB 303 and 304, adding the “riot” provision and singling out groups of three or more (?) accomplish? They make “Whoever participates in a riot” in which someone else, who may be completely unknown or even adverse to the person being charged, a felon by association.
These proposals are unnecessary and unconstitutional. It is worth remembering that the State has lost challenges to over-broad penalties against groups of four assembling in the Capitol without a permit as recently as 2013. U.S. District Court Judge William Conley issued an injunction against enforcement of the Wisconsin Administrative Code and Capitol Access policies on July 8 2013, finding that the Dept. of Administration’s assembly permitting scheme was improperly content based and overly broad, and that the plaintiff Michael Kissick had shown a likelihood of success in his case against DOA Secretary Huebsch and Capitol Police chief Erwin.
To be constitutional, a statute limiting First Amendment rights of speech and assembly must be narrowly drawn to achieve a legitimate objective. A statute criminalizing the mere presence of a person with two or more others who are violent or threatening violence is NOT narrowly drawn. It is overly broad. It chills protected conduct by imposing a potential felony charge on someone who is not doing anything wrong, and may be participating in activity that deserves the highest level of constitutional protection.
A felony charge is a serious matter. The number of attorneys who take cases of people charged with felonies is relatively limited because these are serious charges that can affect a person’s access to jobs, housing, education and the right to vote. Retainers for attorneys in a felony case are in the thousands of dollars. The State Public Defender’s office is underfunded and the number of attorneys who take private appointments has declined because private attorneys can’t keep their doors open getting $35 an hour.
You may say that other states have “riot” bills so we should have one too. Those states (North Dakota being the one I am most familiar with) do not have unlawful assembly bills and the penalty for participating in a “riot” is a misdemeanor there.
1. This crime is a B misdemeanor North Dakota has three levels of misdemeanors: Class A, Class B, and Class C. A class B misdemeanor carries a Maximum penalty of 30 days in prison, a $1,500 fine, or both. N.D. Cent. Code Ann. § 12.1-32-01 (West).
2. The terms of the crime A person is guilty of Engaging in a Riot if he participates in “a public disturbance involving an assemblage of five or more persons which by tumultuous and violent conduct creates grave danger of damage or injury to property or persons or substantially obstructs law enforcement or other government function.” N.D. Cent. Code Ann. § 12.1-25-03 (West). N.D. Cent. Code Ann. § 12.1-25-01 (West).”
Most of the people charged with “riot” in North Dakota last year have had their charges dismissed. Merely being there has not been found sufficient reason to sustain a misdemeanor charge. Wisconsin does not need a “riot” statute and people who assemble to exercise their free speech rights should not face felony charges. There are already penalties for committing acts of violence or being parties to such activity, and for blocking streets, and escalating penalties that adequately address any illegal activity.
The Madison Mass Defense group, involving attorney and legal worker members of the National Lawyers Guild, ACLU and others concerned about federal and state constitutional rights to petition and protest the government, represented over 100 defendants given over 330 tickets in the “crackdown” ordered by Capitol Police Chief Erwin since he became chief in 2013. Only one case went to a jury trial resulting in a guilty verdict, nearly all of them were dismissed by the prosecuting Wisconsin Attorney General’s office after every Dane County judge assigned to the cases dismissed them.
The Madison Chapter of the National Lawyers Guild is the local arm of the national organization of lawyers, legal workers, law students, and jailhouse lawyers. The National Lawyers Guild represents progressive political movements, and its motto is that human rights are more sacred than property interests.