A bill currently circulating the Assembly is raising some concerns about a further crackdown on and criminalization of people protesting at the Capitol.

AB237, which would give arrest powers to law enforcement officials over anyone "violating a law that constitutes a civil forfeiture if the law enforcement officer has reasonable grounds to believe that the person is violating or has violated the law."

Where civil forfeiture laws are typically used to confiscate property used in illegal activities such as drug trafficking, ACLU of Wisconsin Legal Director Larry Dupuis explains that AB237 "doesn't have anything to do with seizing the property of criminal suspects, as the federal civil forfeiture laws do."

Dupuis goes on to note, "In Wisconsin, a forfeiture is essentially a fine, and the actions that are punishable by forfeiture are often similar to those made punishable by fines for violations of municipal ordinances. Forfeitures, in other words, are essentially the same as citations or tickets, but they are usually used for offenses that take place on state property and are prosecuted in circuit court, rather than municipal court."

Only rules created under the authority of the Department of Administration (Wis. Stat. 16.846) may be enforced by forfeiture, and include things like drug possession and disorderly conduct, as laid out under Wis. Admin. Code ADM sec 2.14.

The bill was recommended for passage yesterday on a 9-0 vote by the Assembly Committee on Criminal Justice and Corrections, and now moves to the Committee on Rules.

Authored by Reps. Joel Kleefisch R-Oconomowoc), Chris Danou (D-Trempealeau), Joe Knilans (R-Janesville), and cosponsored by Sen. Van Wanggaard (R-Racine), none had yet responded to requests for comment by initial publication of this article.

According to Dupuis, police officers and sheriff's deputies already have the authority to arrest people for violations of city or county ordinances; "What this bill does is essentially give the authority to arrest for violations of parallel 'ordinances' on state property."

He doesn't believe, however, there would be any grounds to object to the bill becoming law on a constitutional basis, and cites U.S. Supreme Court case Atwater v. City of Lago Vista, where it was "held that it did not violate the 4th amendment to arrest someone for a violation that was punishable only by a fine."

"On the other hand," Dupuis adds, "it does seem likely that this is intended to make sure that arrest authority is clear in the Capitol, where the Capitol Police and other cooperating police officers have been making arrests all along. My guess is some police officers have questioned whether they really have arrest authority for violations of these administrative code provisions and wanted reassurance. And there may be some question about whether the Legislature can delegate authority to administrative agencies (like DoA or the Board of Regents) to make rules that will be treated like crimes subject to arrest and fines. One might argue that that violates separation of powers principles or maybe some sort of due process right to have punitive laws made by elected legislators, rather than bureaucrats."

Civil forfeiture laws in general have come in for a great deal of criticism in recent years, and an exhausted study done by the Institute for Justice in 2010 gave Wisconsin a grade of C in terms of its civil forfeiture laws and how they're handled.

According to the report, "Policing For Profit," state and federal civil asset forfeiture laws allow law enforcement agencies to seize and keep property suspected of involvement in criminal activity. "Unlike criminal asset forfeiture," the report's authors write, "with civil forfeiture, a property owner need not be found guilty of a crime—or even charged—to
permanently lose her cash, car, home or other property."

The report has this to say about Wisconsin in particular:

Wisconsin’s civil forfeiture laws are not as bad as other states. In civil forfeiture proceedings, the government must establish beyond a reasonable doubt that property is related to a crime. That is the highest standard and equivalent to what is needed for a criminal conviction. Property owners do, however, bear the burden of proof for innocent owner claims.

The financial incentives to seek forfeiture are not as strong in Wisconsin as in other
states. Up to 50 percent of the proceeds from the sale of forfeited property goes
to law enforcement. When the forfeited property is money, the amount flowing to
police depends on the amount forfeited. If the amount forfeited does not exceed
$2,000, 70 percent of the money goes to law enforcement to pay forfeiture expenses.
If more than $2,000 is forfeited, law enforcement receives 50 percent. Perhaps to
circumvent these restrictions, Wisconsin actively participates in equitable sharing
agreements [with the federal government], receiving more than $50 million in proceeds from 2000 to 2008.

There is concern especially on behalf of those people who have been engaging in acts of civil disobedience at the Capitol about how AB237, if passed into law, might lead to further over-criminalization of their activities.

Rep. Mark Pocan (D-Madison) last night attempted to introduce a resolution in the Assembly that would have suspended the rules disallowing the public in the gallery from having or holding signs. Republicans in the body defeated even taking up the measure on a vote of 57-37.

Over the course of the evening, however, over a dozen individuals were pulled from the gallery for everything from holding signs to silently filming the proceedings. That included three activists - CJ Terrell, Thi Le, and Jeremy Ryan - who, because of a series of past incidents, were charged with bail jumping and now face prison sentences.

According to a statement on the Facebook page SSWIDTMS, all three "have chosen to refuse their $1,000 bail in protest."

Earlier this month the group had initially refused to sign signature bonds for their release from custody on the grounds that the contract added a clause stating that they would not violate any further administrative codes. Jessa Nicholson, the attorney then representing the activists, explained that "The defendant's complaint was that some administrative rules are either contrary to state statutes or contrary to the Wisconsin constitution."

The Assembly's rules are here. The state administrative code is here.

As pointed out by both Rep. Pocan and Rep. Christine Sinicki (D-Milwaukee) at last night's floor session, however, neither of these rule sets include a provision prohibiting the holding of signs in the gallery. Rather, like several rules now being enforced in the Capitol, it is an interpretation of rules regarding decorum in the chamber.

Emily Mills

Editor-At-Large

Emily Mills is Editor-At-Large for Dane101, as well as Editor of Our Lives Magazine. She is also a freelance writer, photographer, actor, and musician (drummer and singer in local band Little Red Wolf). Originally from several states up and down the Midwest Emily has called Madison home since 2000. Contact her at