Protesters gather in Kenosha the second night of protests on August 24th, 2020. This was before the clashes with police later that night. (Photo | Isiah Holmes)
Protests and unrest in Kenosha last year became the face of discussion over a Republican bill attempting to construct a punitive framework for “rioting.” The bill, AB-279, was introduced by Rep. John Spiros (R-Marshfield). A former law enforcement officer, Spiros attempted to introduce similar riot-based legislation in 2016, after Milwaukee experienced unrest and property destruction following the killing of 23-year-old Sylville Smith by a Milwaukee officer.
“I would probably have to blame a different house,” Spiros said during the Assembly Committee of Judiciary hearing on Aug. 24, when asked why the bill had been unsuccessful. “Because this house, our house, is able to get it through and pass it,” he continued, chuckling along with some committee members. The committee is heavily GOP-dominated, with just three of the nine seats filled by Democrats.
Spiros’ first attempt at a riot bill was shot down due to concerns over constitutional violations. The bill defined a riot as a public disturbance during a gathering of at least three people which includes violence, or a threat of immediate violence. Like its current counterpart, that bill included felony penalties for a violation. Misdemeanor charges could also be issued for anyone blocking roadways during a declared riot.
The anti-riot legislation’s latest incarnation is worded differently, although the overall goal remains the same. A riot is now defined as “a public disturbance that involves an unlawful assembly,” while also either committing or threatening to commit an act of violence. The bill also would apply to, “an act of violence by at least one person in the unlawful assembly that substantially obstructs law enforcement or another governmental function.” The bill has additional sub-clauses focused on making battery to firefighters, public safety workers and National Guard soldiers a felony.
Spiros said during Tuesday’s hearing that the bill has “become especially relevant after rioting that has happened over the course of the last year around our state.” He added that, “I want to be extremely clear that as authors we understand that there’s a fundamental difference between a protest and a riot.” Spiros asserted that, “protests are peaceful, pre-organized demonstrations, while riots end up risking people’s safety and livelihoods, and the livelihoods of local businesses.” Spiros said that “riots” are not defined in Wisconsin state statutes, and his bill aims to rectify that by setting a standard.
He stressed that, “we are one of four states that actually do not define a riot.” However, when pressed later in the discussion by committee members, Spiros admitted that he did not know the particulars of other state’s laws around rioting. At different points, members also brought up the existence of already established federal anti-rioting laws.
“The bill is not meant to affect the peaceful protests, like some we witnessed last summer, but is instead designed to discourage destructive behavior and create a path of recourse for the riots that cause harm to our communities,” Spiros said. “Last year, riots created safety risks for those trying to peacefully protest, first responders and even one of our legislative colleagues who was a bystander, all on top of thousands in damage for local business owners. Stores were looted, roads shut down and bystanders injured.”
Responses from committee members varied. Rep. Shae Sortwell (R-Two Rivers) focused on who the bill would apply to. For example, he asked, would it apply if someone is “intentionally participating in an unlawful assembly” during which some violent act was committed without their knowledge or input? “We have a protest of 10,000 people,” suggested Sortwell, “and over at this end of this there’s people breaking stuff and looting stuff and whatever, and on the other end they don’t even know what’s going on.” Staff from Legislative Council clarified that indeed, “the bill would criminalize the act of somebody being at a location where a riot’s occurring, with or without any knowledge of being there at the riot.”
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Rep. Timothy Ramthun (R-Campbellsport) suggested that the bill should specifically target elected officials at any level of government, including the state Legislature. “That’s a huge image thing to me,” he said. “If you’re out there trying to fuel the fires of a riot, you’re probably not doing your job very well as a representative of the people.” Some Democratic state representatives and other elected officials in Wisconsin have been criticized by GOP representatives for participating in the 2020 protests.Later, Sortwell suggested the law could also apply to Gov. Tony Evers for making statements around the shooting of Jacob Blake by a Kenosha police officer last year.
Rep. Gary Hebl (D-Sun Prairie), an attorney, presented the stiffest criticisms of the bill, as he had three years ago with the previous version.
“We talk about a protest as perfectly fine — you encourage that in your testimony,” noted Hebl. “But when there’s an act of violence, that protest then becomes a riot, according to your definition. So technically, anyone at that protest that becomes a riot could be subject to criminal charges — felony — for the fact that they’re there, based on the definition provided to Leg. Council.”
Spiros countered that if a person intentionally wanted to participate in a riot then the bill would apply. However, he could not clearly answer what actually qualifies as intent under the bill. Hebl asked, “Do you want someone who’s got bear spray in a crowd that becomes a riot charged with a felony?” Spiros responded: “Well, someone’s been watching too much TV.”
Protests in the Milwaukee-area were not mentioned during the hearing but two business owners from Kenosha, Kimberly Warner and Scott Carpenter, testified about the destruction in their community. The hearing was taking place on the one year anniversary of the second night of Kenosha’s unrest. Recent studies have since shown that nationwide approximately 96% of Black Lives Matter protests last summer were peaceful and non-violent, but some $50 million in damages are estimated to have occurred throughout Kenosha.
Carpenter, who lost his furniture business to the fires that burned in downtown Kenosha, held up pictures which he said showed people lighting fires in his family’s store.
“Over $1,500,000, I believe, is what we lost,” he said. “That was something we built from ground-up. … We watched it burn down to nothing.” Carpenter later said his family business has since moved locations, and much of the lost product has been replaced.
Carpenter held up another picture of a “BLM” spray-tag on his store’s sign. “So I don’t know, were they responsible? I don’t know. They tagged it, maybe. I don’t know.”
He continued, “this bill probably never existed because we never had to worry about it. But as times change maybe things need to be written to change with people’s mentalities and the ways times change. It’s sad the way we need to be afraid.”
Committee Vice-chair Samantha Kerkman (R-Salem) expressed her sympathies, saying she’d bought furniture from Carpenter’s store. Carpenter condemned Evers for saying the Blake shooting was “senseless,” saying the governor “just gave the go-ahead for people who are already on edge. I was the perfect storm — and they started it.” He said that an anti-riot law might have convinced people to not have come to Kenosha.
Warner, whose gift shop was vandalized, said she was lucky. “I didn’t lose anything other than business during COVID and all that, and then having to be closed for the fear. And some female employees not wanting to work anymore.”
But she added that she had received threats over social media and experienced “cancel culture” for criticizing the protests and blamed Evers for the destruction.
“Had the penalty been bigger that first night, I don’t know [if] the crowbar would have hit my window,” she testified, adding that federal authorities should have come sooner. Federal U.S. Marshals were, in fact, deactivated in Portland, Oregon, and sent to Kenosha during the unrest. Evers also accepted the help of FBI agents, who’d been monitoring statewide protest activity all summer. By Aug. 24, the day after the Blake shooting, Evers had activated the National Guard. U.S. Marshals said in internal communications that on Aug. 23, “protest events in the city had not reached the point of needing a law enforcement response outside of local Kenosha County law enforcement agencies and surrounding counties.”
“What happened to you and what happened to Kenosha, there’s no justification for that,” Hebl told Carpenter and Warner, but pointed out there are already laws to charge people with in such situations, including laws against property destruction, harming other humans, stealing or even violating a curfew. And he stressed that it’s important to give law enforcement necessary tools in order to hold people accountable to the criminal justice system, but added: “I don’t know if this bill does that.”
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