A year after Capitol Police Chief David Erwin vowed to crack down on protesters at the Capitol, there is no sign of a resolution to the conflict.
Singers who oppose Gov. Scott Walker’s administration continue to flout state rules requiring them to obtain a permit, while police continue to make arrests.
But experts question whether the police strategy is productive — especially after the recent arrests of a woman who said she was an observer, two journalists and a man who was wrestled to the ground by police resulting in an officer’s injury.
“Many police administrators look at this situation and are scratching their heads,” said Michael Scott, a UW-Madison law school professor and expert on police procedures. “The protests had dwindled down to nothing. Why would you fan the flames and get it cranked up again?”
The police scuffle with protester Damon Terrell on Monday drew more attention to Tuesday’s Capitol protest as Dane County Sheriff Dave Mahoney and Madison Fire Chief Steve Davis attended as observers.
Terrell’s brother, C.J. Terrell, who also was arrested Monday, said that videos of the altercation show the officer hurt his own hand during the incident and that the tentative battery charge against his brother won’t stand.
“The court will prove that and the lawsuit coming after will prove it further,” C.J. Terrell said.
Lawyers representing other ticketed protesters also questioned the arrests of Nora Cusack, a woman holding a sign identifying herself as an observer, and journalists Matt Rothschild, editor of the Progressive Magazine, and radio show host Dominic Salvia.
The Department of Administration, which oversees Capitol Police, has said officers will only arrest active participants.
“Many, many of these citations (are going) to be unlawful and lawyers like me are going to make some money,” said Jeff Scott Olson, who is representing Salvia.
Conley ruling latest trigger
In August 2012, Erwin pledged to “to make this building where it is something all the citizens can enjoy, not just a select few.”
In the months following, some protesters received citations, many of which were dismissed. But the latest standoff between police and protesters accelerated after a ruling from federal judge William Conley, who temporarily struck down the state’s policy requiring groups of four or more who gather in the Capitol to get a permit. Conley otherwise let stand the policy for groups of 20 or more.
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The July 9 decision prompted Capitol Police to begin physically arresting the singers whenever 20 or more gather. Since the arrests began July 24, police have issued more than 320 citations, mostly for demonstrating without a permit.
Erwin has declined repeated requests to answer questions about how Capitol Police are handling the protests. Walker has also turned down interview requests, referring questions to DOA. Scott said it would help the public better understand the position of the Capitol Police if officials would clearly explain why some participants in the protests are arrested while others are not.
A DOA spokeswoman has said protesters will get a permit if they apply.
Protesters say the state and federal constitutions guarantee their ability to gather without one — even though courts have held that governments can regulate the time, place and manner of demonstra-
Conley has set a trial on the permitting requirement for January.
First Amendment debate
Scott and other experts on crowd control say governments can regulate public gatherings, but they also have to balance free-speech interests.
In recent decades — especially after clashes between police and Vietnam War protesters in the 1960s — police across the country have become more willing to accommodate political protesters so long as they aren’t endangering safety or causing a disruption, Scott said.
Handcuffing protesters should always be a last resort, Scott said, and there appears to be no reason to handcuff arrested singers.
In cases of mass protest, such as the Solidarity Singalong, a police agency’s first strategy should be to communicate with the protesters to broker a peaceful resolution, said Terry Gainer, Sergeant-at-Arms for the U.S. Senate since 2007 and a former U.S. Capitol police chief.
“You’re never going to arrest your way out of a problem,” Gainer said. “Arresting people and being harsh on protesters does nothing but make the police the target of the disruption.”
Gainer, whose first assignment as a Chicago police officer was the 1968 Democratic National Convention that saw violent demonstrators arrested, said it’s good to have rules, but police have discretion to enforce them and “drawing lines in the sand is not a good thing.”
Unlike his predecessor, Charles Tubbs, and current chief deputy Dan Blackdeer while he was interim chief, Erwin has not attempted to communicate with the singers directly, according to protesters and their lawyers.
Former Madison Police Chief David Couper, who has written books about policing protests, said the only way to resolve the current situation would be for Erwin to start a dialogue to explain the state’s position and allow the protesters to be heard.