The ACLU of Wisconsin Foundation,

National Lawyers Guild Madison Chapter, and the

Madison Mass Defense League present

KNOW YOUR RIGHTS:

A Guide to Free Speech Rights
in Madison Wisconsin

madison chapter
The following information applies specifically to Madison, Wisconsin. This information
is not a substitute for legal advice, and should not be considered such. If you have questions about a specific action, it is always best to consult an attorney.
Please keep in mind that this information is current as of April 2013. New laws and court
decisions will change this information.

Q: What am I allowed to do and say at the Capitol?

In general, the First Amendment to the US Constitution protects your right to freedom of speech and assembly. The United States Supreme Court has decided that individual states are also required to respect these freedoms.
You have a basic right to express your political opinion, rally, and demonstrate at the
Wisconsin State Capitol. However, there are important limits to that right.
In December of 2011, the Department of Administration (an office of government
with authority to write rules for the Capitol) issued new rules for actions at the Capitol, which outline the following important restrictions:
1. If you intend to gather in a group of four or more people to express a
political message inside the Capitol, you must apply for a permit to do so.
2. If you intend to gather in a group of 100 or more on the Capitol grounds,
you must apply for a permit to do so.
Other prohibited actions:
Inside the Senate gallery, you may not:
Lean over or put any object over the balcony
Display signs
Photograph any of the proceedings in the chamber
Read books or newspapers
Consume food or beverages
Use a laptop or other computer
Inside the Assembly gallery, you may not:
Read any printed newspaper
Consume food or smoke
Use a cell phone
Possess a microphone designed to pick up conversation more than
10 feet away from the microphone
PLEASE NOTE: These lists are taken from the published rules for each chamber.
However, there have been arrests in both chambers for behavior that did not violate
any of these rules. In other words, you may be arrested for engaging in behavior that
is not explicitly prohibited by the rules.
If this happens, please contact a Madison Mass Defense Attorney. Attorneys have
been successful in getting such tickets or charges dismissed.

Coordinator for legal help: 608-520-0654

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Q: How can the Capitol Police tell me what to do in the Capitol? What about my right to free speech?
The United States Constitution gives every person the right to free speech. But, that
right is not absolute. Speech that creates an immediate threat to safety is not protected. Governmental authorities are also free to regulate the time, place and manner
in which some speech happens, as long as those regulations do not favor or discriminate among kinds of speech based on the political or religious content of that speech.
Within the Capitol, numerous citations have been issued against Wisconsin residents
for not following permit requirements. While most of those cases have been dismissed, there is no resolution of the question of whether current permit requirements
for the Capitol rotunda are being applied in a content neutral manner or not. A law
suit currently pending in federal court will perhaps address this issue.

Q: What police orders am I required to obey?

You are always free to walk away from police unless you are being detained. If you
dont know if youre being detained, ask the officer, "Am I free to go?" If the answer
is yes, you should walk away. (Note that running away can lead to a reasonable suspicion by the officer of illegal activities by you and may lead to your arrest.)
Generally, if you are not engaging in civil disobedience, you need to obey any police
order to disburse or remove yourself from a specific location. For example, you cannot block street traffic or a sidewalk, trespass, harass passers-by, destroy property, or
violently attack individuals. Police orders to stop these activities should be obeyed.
But, you do not need to consent to an officer's request to search your clothes or belongings. An officer has the right to pat you down to see if you have a weapon of
some kind, but you can and should say no if an officer asks to conduct a further
search of your body or your belongings.
If an officer insists on searching you, continue to calmly inform the officer that you
do not consent to a search, but do not resist. Resisting the search can lead to additional criminal charges.
If you are carrying a concealed weapon under a valid permit, you should inform the
officer that you have a concealed weapon, keep your hands visible to the officer, and
ask for instructions from the officer about what to do next.

Coordinator for legal help: 608-520-0654

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Q: How do I know if Im going to get arrested?

If you engage in behavior listed here as prohibited, know that you may be arrested.
As mentioned earlier, Capitol Police have also made arrests for behavior that was not
known to be prohibited .
Usually, a police officer will warn you that you are violating the law and that you
will be arrested if you do not stop the behavior which is illegal. Sometimes the police
will warn you multiple times before making an arrest.
While Capitol Police have been making arrests for behavior which is not expressly
prohibited by the rules of the Capitol building, the Capitol Police have also chosen
not to arrest some individuals engaging in prohibited conduct.
In other words, it can be difficult to know whether you will be arrested for engaging
in certain conduct. You may want to talk to other activists who have been active at
the Capitol to find out whether people have been arrested for the type of action you
plan to do. Heres a brief guide to some activities you may be wondering about:
a. Leafleting in public areas: Generally, you will not be arrested for this unless
you stray onto private property and ignore warnings to get off private property.
b. Peaceful demonstration rally, speakers, etc.: Generally, you do not risk arrest so long as sidewalks and public access areas are not being blocked. In those
situations someone should be designated to be a contact with the police in case
there are problems.
c. Civil disobedience blocking sidewalks, streets, refusing to leave private areas, etc.: Generally, you are warned and given an opportunity to leave. Sometimes a warning is not given or is given in a way that is difficult to notice. In
those situations, failure to heed the warning and continue with civil disobedience
could lead to an arrest.
d. Marching in streets without a permit: If police want to, you can be arrested.
e. Arguing with police: It is almost always a losing proposition to argue with police on the street. You often end up being charged with resisting arrest or assault
on a police officer. Note that even if the police officers arrest of you is illegal,
and even if his force is excessive, you do not have the legal right to resist the arrest or defend yourself.

Coordinator for legal help: 608-520-0654

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f. Recording or filming police: Generally, there are no restrictions in Wisconsin

to recording or filming activities of others in public spaces, including police.1
Police officers, however, may be sensitive to being recorded and could order
anyone recording or filming their actions to stop. Failure to do so could lead the
officer to charging individuals with obstructing an officer. Note as well that restrictions vary from state to state. In Illinois, for example, until a recent federal
circuit court decision finding the prohibition unconstitutional, it was a crime to
film or record on-duty police officers performing their duties.

Q: What happens if I am arrested?

In general, you should comply with all orders of the police officer and avoid resisting
or struggling. If you plan to engage in active civil disobedience, please read below.
What happens after you are arrested will depend on what you are arrested for. The
following are possible scenarios after your arrest for the listed reason:
Citation/forfeiture: If you are arrested for a summary offense, you will be given
a citation on-site by a police officer or at one of the police stations. Capitol
police will occasionally mail or hand-deliver citations to individuals for whom
they have contact information.
Some citations provide a date for an initial appearance if you dispute the
allegation. Others include a form on the back or bottom to fill out, enter a plea of
not guilty, and request a hearing.
The most common citation charges are trespass and disorderly conduct
Forfeiture cases typically carry fines of up to $500 and never jail time. For the
most part, citations have ranged from $50 to $150. But, Capital police now
routinely issue forfeiture citations for $200.50 each, and these cases are being
handled by state attorneys from the Dep't of Justice (DOJ) rather than local
assistant district attorneys. Most recently, under the guidance of DOJ attorneys
Capitol Police have begun hand-delivering long-form complaints against
protestors with multiple forfeiture counts.

Restrictions on the use of cameras in certain parts of the capitol building are currently the subject of several court challenges. Not all restrictions on recording and filming violate constitutional requirements, however. Court rooms, for example, commonly restrict who can record or
film proceedings. Generally, restrictions on the use of cameras and recording devices do not violate the Constitution when those restrictions are applied in a neutral manner and satisfy a legitimate public concern.

Coordinator for legal help: 608-520-0654

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Misdemeanor or Felony: If arrested for a misdemeanor or a felony, you may go

through a processing procedure at a county jail, courthouse, or a municipal
courts building.
Recently, for some misdemeanors, there is a new procedure in which some
individuals are released without that processing, and will later receive a
summons in the mail directing them to appear in court on a certain date.
The most common misdemeanor charges include more serious levels of
disorderly conduct, resisting arrest, or obstructing an officer. These charges can
only be adjudicated in regular criminal court, usually involving several hearings,
where the right to a jury trial exists. It is rare for anyone to receive a jail
sentence on these charges. For six protesters arrested in August 2011, for
example, a jury trial ended in a guilty verdict for resisting or obstructing an
officer in March 2012. The six individuals received no jail time or probation but
did have to pay fines and court costs that added up to just over $500.
Furthermore, the court concluded that the record of this conviction could be
expunged upon petition to the court if, after 18 months, the defendants had paid
all fines and had no new arrests.
Felony charges are possible for more serious conduct, usually relating to
assaulting a police officer or resisting arrest. As with misdemeanors, these
charges are adjudicated in criminal court before a jury. Jail time is likely if found
guilty or in a plea bargain.
If you demonstrate at federal buildings, and particularly at or inside military bases or
inside recruiting stations, you could face federal prosecution, where the charges carry
lengthy prison sentences. For example, people arrested at the School of the Americas
are routinely given six month jail terms.
If you are arrested, the police have the right to search your possessions in what is
called an administrative search. You should not provide any passwords or personal
identification numbers (PINS) to access your smartphone or computer, however, as
there is currently an open question of whether this is required by law.
Once in police custody, you will be asked for basic contact information, photographed, and fingerprinted. You will then be taken before a judge who will set a
date for a preliminary hearing (usually within 7 to 10 days) and will set bond for
your release. The bond will be based on your charges and any prior charges or convictions. The bond could range from nothing (called a signature bond) to a few hundred dollars or even several thousand. If you are from the area and have no prior

Coordinator for legal help: 608-520-0654

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record, the bond will probably be a few hundred dollars and maybe even zero. Please
note that the processing before release on bond can take anywhere from several hours
to one to two days.
At your preliminary hearing, a judge will decide based on the evidence whether your
case will be dismissed or will become a full criminal case. You may need to enter a
plea. You should consult with an attorney before deciding how, or whether, to plea.
If you are thinking of filing a civil complaint against the police or others for civil
rights violations, you should be especially cautious about whether you plead "guilty"
or "no contest" to charges. A guilty plea could prevent a future civil rights complaint
against police officers from being filed.
DO NOT ANSWER QUESTIONS OR CHAT WITH POLICE, other than to give basic identifying information like your name and address. As mentioned above, police
officers are permitted to lie to you in order to get information, and they will use anything you say against you. If you are asked to answer questions, say, I do not want
to answer questions. I want to speak to an attorney. This will invoke your constitutional right against self-incrimination and your constitutional right to be represented
by an attorney, and the police officers should stop asking questions.

Q: How should I prepare for an action where I may be arrested?

If you are attending an action where you think you might be (or you plan to be) arrested, there are a few things you should do to prepare:
First, do your research. There are a number of organizations in Madison who can
provide information and maybe support (including training) to activists, including the
following:
Grassroots Leadership College: www.grassrootsleadershipcollege.org
Madison Infoshop: madinfoshop.wordpress.com/
Second, it can be helpful to act with a group of like-minded folks who can help arrange support, including getting the names of those arrested to legal observers and
coordinating legal support.
If you are considering taking action that will put you at risk for arrest, please consider the following important information:

Coordinator for legal help: 608-520-0654

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If you are an immigrant or you are not a U.S. citizen, getting arrested may
mean that you are deported. Talk to an immigration attorney before you put
yourself at risk for arrest.
If you are on probation or parole, you are required to report any arrest to
your probation or parole officer. An arrest can be considered a violation of
probation or parole.
Unless you have a permit for concealed carry, do not carry weapons of any
kind, even a pocket knife. If you do, you may find yourself facing a weapons
charge. If you have a permit for concealed carry, let any officer with whom
you are interacting know that you have a permit for carrying a concealed
weapon, that you have a concealed weapon with you, and that you will wait
for further direction from the officer while keeping your hands visible.
If you take medication, do not assume you will have access to it after arrest.
If it is important that you take your medication on a careful schedule, carry
several days supply with you in the original prescription containers along
with a doctor's note specifying the importance of those medicines to your
health. Please note that these efforts are still no guarantee that you will
actually receive your medicine.
To avoid problems getting released on bail or lengthy processing, carry a
picture ID with your current address on it.
If you are a minor, your case may be handled separately from others in
juvenile court, and you might not be released until a parent or guardian
comes to pick you up.
If you are claustrophobic, do not place yourself in danger of arrest. It could
be several hours to one or two days before you are released, and you will
spend time in confined places.
If you do not live in the Madison area, you should understand the court
hearings are not scheduled at your convenience. You will be required to
return to Madison for court hearings.

Q: How can a Legal Observer help me?

Legal observers are trained volunteers who are legal witnesses to political demonstrations and who document the events of public protests, including any incidents of
police misconduct or violations of the rights of protestors. As a result, a Legal Observer can watch the police and watch the protestors and act as an impartial witness
to arrests or confrontations with law enforcement. If you are planning an event where
you know you will be arrested, it may be helpful to contact the ACLU and request
that Legal Observers attend.

Coordinator for legal help: 608-520-0654

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Q: What if I want to engage in civil disobedience? How can I

learn more about it?
As discussed above, you should do your research before engaging in any action that
may result in arrest. We have included here a short description of different forms of
civil disobedience. These explanations are intended to be only an introduction to this
information.
Cooperative civil disobedience is when you act against a law while still cooperating
with police during the arrest. After an officer has ordered you to leave or move, for
example, you exercise passive disobedience when you respectfully let the officer
know you do not want to leave or obey the command to move but that you will cooperate physically if taken into custody. In these circumstances, you should stand and
hold your hands together in front of you, and you should not react or resist or pull
away when physically grabbed by an officer. An officer may simply issue a citation
to you on the spot and then release you. Or, the officer may transport you to a processing center where a citation will be issued. Usually, the citations will be for an
amount from $150 to $500. There will also be a court date assigned for contesting the
citation.
Passive civil disobedience is when you act against a law and refuse to assist any who
attempt to enforce that law by sitting down or going limp when taken into custody.
Because officers now have to carry you in order to arrest you, this physical contact
often leads to additional conflict and even the escalation of charges, such as resisting
arrest or even assaulting an officer.
After removal from a scene, you should cooperate fully as you are transported, fingerprinted, and photographed. You should provide your name and contact information when asked, as refusing to provide this basic information or lying about it will
likely lead to additional charges and delay or make bail impossible.
Active civil disobedience is when you act in ways to frustrate or prevent an officer
from enforcing a law. This oppositional behavior occurs when you link arms with fellow protestors or chain yourself to an object so as to make your removal more difficult. Additional charges, such as resisting arrest, will almost always be added. Once
removed from the scene, however, any further resistance will only lead to additional
counts of resisting arrest that may be difficult to defend. At some point, you should
decide that you will cooperate fully and let the officer know of that decision.

Coordinator for legal help: 608-520-0654

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Q: How can I find an attorney to discuss these issues? What if

I cant afford pay an attorney?
Contact Madison Mass Defense. This organization is a joint project of the Madison
Chapter of the National Lawyers Guild and the ACLU of Wisconsin. You can reach
the coordinator at 608-520-0654 or madisonnlg@gmail.com. You can also reach the
Madison Area Office of the ACLU of Wisconsin at 608-469-5540.
If you cant afford an attorney, contact Madison Mass Defense anyway. They may be
able to refer you to someone who will work for a discounted rate or free of charge.

Coordinator for legal help: 608-520-0654

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