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)
A bill that would create a felony penalty for people who were part of a protest where rioting broke out appears to be as broad as it sounds. During a public hearing in the Senate Committee on Judiciary and Public Safety, on Thursday, questions persisted as to who exactly the bill would apply to if it were to pass. Sen. Van Wanggaard (R-Racine), who chairs the committee, testified as one of the bill’s authors, saying that it “addresses the growing popularity of riots and the damage that they perpetrate in our communities.”
The riot bill is the second attempt in five years by Wisconsin Republicans to pass such a law. The current bill, SB-296 and its Assembly version, were drafted in reaction to the summer of protest that followed the killing of George Floyd by Minneapolis police. Rep. John Spiros (R-Marshfield) explained last month in an Assembly hearing that the bills have has “become especially relevant after rioting that has happened over the course of the last year around our state.” Wanggaard said that, “the intention of this bill is not to punish peaceful protesters participating in a lawful gathering.”
Both the bill’s language and Wanggaard’s testimony, however, do not rule out criminalizing non-violent protest. “Current law addresses the harmful actions that are often associated with rioting only after violating unlawful assembly laws, and after refusing to disperse when ordered,” Wanggaard said during the Sept. 16 Senate hearing. He added that, “in the wake of recent disruptions in our state and across the nation, it is important to focus on keeping the public safe, and holding those responsible accountable. Wisconsin is one of very few states that does not define riot in statute.” Under the bill, he continued, “a person who is part of a group of at least three people that commits an act of violence constituting a clear and present danger of property damage, or personal injury, or threatens to do so, would be guilty of a Class-I felony.”
Furthermore, Wanggaard said, “shutting down major roadways has also become a popular tactic during riots. This is an issue of public safety that is not only dangerous to people on the freeways and highways, but also first responders trying to get to that emergency, innocent bystanders and even the rioters themselves.” Blocking a roadway, if the bill were to pass, would be a Class-A misdemeanor under the anti-riot bill.
Blocked or slowed traffic, however, is a common symptom of any protest, march or even parade. Certain law enforcement departments in Wisconsin regularly declared protests as unlawful assemblies regardless of whether there was violence, threats or property damage. At times, arrests would also follow those declarations, often with blocked or slowed traffic being the trigger. However, in the past year-plus of protesting, violence and property destruction were rare in Wisconsin and nationally. In late 2020, a University of Connecticut study on more than 7,300 separate demonstrations in May and June of 2020 found 96% of those protests did not involve property damage or police injuries. In fact, 97% of the events had no injuries reported at all.
When interviewed about the findings Jeremy Pressman, co-founder of the Crowd Counting Consortium, which conducted the study, said it speaks to a divide between perception and reality. “One of the reasons we want to collect the data is to get a grounded sense of what’s going on instead of just a scripted view of what people are being told is happening,” said Pressman. In southeastern Wisconsin, where the majority of Wisconsin protests and unrest occurred, some protest groups continued marches and actions for 412 consecutive days following Floyd’s killing by Minneapolis police with little violence or property destruction.
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During the last Assembly hearing on the riot bills, unrest and damage in Kenosha were front and center. The question remains, however, what acts would constitute a felony under the riot bill. Sen. Kelda Roys (D-Madison) wondered aloud whether a person would actually have to do something to be charged, or if simply being present is enough. In answer, Wanggaard posed a hypothetical: “Let’s say you had 50 people and 10 of them were throwing Molotov cocktails and you’re all standing together, all 50 of you would be able to be charged with rioting because you’re a participant at that point.”
He added that, “you’re not there to peacefully protest when you’re throwing Molotov cocktails,” (although, in his example, 40 people were not doing so). Claims by the Milwaukee Police Department that a Molotov cocktails was thrown at police during a protest last summer were discounted after subsequent investigations. Police admitted that the object was not a Molotov, nor was it sent to the crime lab. That incident, however, was used at the time by police to justify force used against a protest crowd during the daytime, prior to the nightly curfew. Similar controversy erupted over police justifications for using tear gas and rubber bullets against protesters after the curfews in Wauwatosa last fall.
During the hearing on the riot bill, Roys asked what would happen if three teens were together, and one independently decided to spray-paint a building. “Under the bill that would meet the definition of a riot because it’s a threat of property damage,” said Roys. “And that over-broad bill, I think, lends itself to real abuse of power by prosecutors who are overcharging, or by police who want to crack down on otherwise normal protests. If I’m at a protest that’s a peaceful protest and somebody — whether an agent provocateur or a protester — has a bad intent and breaks a window or something, all of a sudden I, who am there as a peaceful protester with no affiliation, am now subject to be charged with a Class-I felony.” Roys added that, “that’s extremely chilling and probably does violate the First Amendment if this bill were to pass and be used in that manner.”
Wanggaard showed visible disapproval of Roys’ argument, and countered that other states have “parallel legislation.” Sen. Julian Bradley (R-Franklin) further tested the bill’s broad language. Referencing everyone in the room, including Wanggaard, Bradley asked the legislative council representative present at the hearing, “Say this room turns into a peaceful protest and then some people decide to start causing trouble, would we all be penalized under this bill?”
Wisconsin Legislative Council senior staff attorney David Moore responded, “Potentially, yes. So, it all comes down to the elements of the crime. If the ‘peaceful protest’ is transformed into something that is no longer peaceful, it is possible that somebody who attended that protest expecting a peaceful protest may end up attending something that is no longer a peaceful protest.” Moore added, however, that a recent amendment to the bill adds a layer of intent for even peaceful protesters: “If you stay when the peaceful protest becomes a riot, then that may be more problematic.”
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