Protesters gather to march in Wauwatosa alongside the families of Antonio Gonzales, Jay Anderson Jr., and Alvin Cole in 2020. (Photo by Isiah Holmes/Wisconsin Examiner)

Update: Rep. Shae Sortwell issued a statement Wednesday morning disputing claims from Democratic Reps Ryan Clancy and Andrew Hysell that the riot bill was taken off the Assembly’s executive agenda. Sortwell accused Clancy and Hysell of “spreading misinformation” regarding the bill.

“To be clear, the chair never pulled the bill because he has not officially scheduled a vote on it yet after receiving a hearing two weeks ago. I am in discussions with colleagues on the committee, which is standard practice for bill authors after a public hearing. I ask both Democrat representatives to brush up on legislative policy on how bills actually move.”

Wednesday afternoon Rep. Ron Tusler, who chairs the assembly committee, which held public hearings on the riot bill, wrote in an email statement to Wisconsin Examiner that the riot bill needs work before it can be scheduled.

Tusler wrote that the bill “is not on the agenda because, in its current form, it fails to be good legislation. I wanted to give the bill author a chance to explain the bill out of respect for Representative Sortwell and the victims of riots. But in its current form, this bill has constitutional, common-sense, and enforcement issues. Assembly Bill 88, as it exists now, was never going to be scheduled for an executive session until those problems were/are addressed.”

A Republican-sponsored bill that would have defined a riot as a gathering of at least three people that could pose a threat of property damage or injury has been removed from the Assembly Judiciary Committee’s executive session agenda. The bill has been criticized for being overly broad, and potentially chilling First Amendment protections of protest and free speech. Besides defining a riot, the bill also exposed accused rioters and riot organizers to felony charges and civil liability including restitution for attorneys’ fees and property damage, and carried a prohibition on government officials with authority over law enforcement from limiting an agency’s response to quell unrest. 

Rep. Andrew Hysell (D- Sun Prairie), a member of the Assembly Committee on Judiciary, said that he criticized the bill because it “actually weakens existing law for the very people it was supposed to help.” The committee held a public hearing on the bill on May 7, at which  a large number of Wisconsinites voiced opposition to the bill. Rep. Shae Sortwell (R- Two Rivers), one of the bill’s authors, testified in favor of the bill, saying that it’s needed to prevent protests from spinning out of control into riots, property destruction, and injury. Sortwell and other republican supporters of the bill referenced protests and unrest in 2020 in Kenosha and  Madison. 

Among those who testified against the bill was Rep. Ryan Clancy (D-Milwaukee). Like other critics, Clancy said the bill was written vaguely in order to be applied broadly to crack down on protest movements. “While myself and many of my Democratic colleagues are tired of wasting our time and our constituents’ resources on badly written, unconstitutional bills like AB-88, I’m ecstatic that Republicans have abandoned this one for now,” Clancy said in a statement after the bill was shelved by the Assembly committee. “It’s clear that passionate, thoughtful testimony from the public, free speech advocates and civil rights experts – along with excellent technical critiques from Rep. Andrew Hysell – has stopped this so-called ‘anti-riot’ bill dead in its tracks.”

Clancy added that “in reality, however, this isn’t an ‘anti-riot’ bill: it’s a threat to free speech, expression and assembly disguised as a public safety measure. Thankfully, it’s now unlikely to move forward this session.” 

During the May 7 committee hearing where people spoke either in favor of or against the bill, one person wore a hat which used an expletive to denounce President Donald Trump. Committee Chair Ron Tusler (R- Harrison) demanded that the man remove the hat because it was offensive. Tusler threatened to have law enforcement remove the man, and called the hearing into recess. Later, when the hearing continued, the man was allowed to continue wearing the hat. Clancy told  Tusler his emotional reaction to the hat and his impulse to call for police was an example of how a broad, penalty-heavy bill for protests like AB-88 is a bad idea.

In his statement, Clancy urged his colleagues to spend “less time trying to dismantle our rights and getting angry at rude hats” and more time “addressing the actual needs of Wisconsin residents. Until that changes, we must all remain vigilant to fight back their next, terrible idea.” 

This article has been updated to add a statement from Rep. Shae Sortwell accusing Reps Ryan Clancy and Andrew Hysell of spreading misinformation about why the bill was taken off the executive session agenda. The article was updated again Wednesday afternoon with Committee Chair Rep. Ron Tusler’s statement regarding the riot bill. It has also been edited to correct Rep. Ron Tusler’s last name. 

Protesters gather in Kenosha the second night of protests on August 24th, 2020. This was before the clashes with police later that night. (Photo by Isiah Holmes/Wisconsin Examiner)

Imagine you hear about a protest in your community and,  curious, you join your neighbors who are marching in the street. Although the protest is loud and slows down  traffic, it appears peaceful and non-violent. Then suddenly, someone throws a rock or spray-paints a building, and now you find yourself among those apprehended for felony rioting, regardless of whether you committed an act of vandalism or  know who did.

Civil rights advocates fear such a scenario if under a Republican bill that defines a riot as a public disturbance, an act of violence or a “clear and present danger” of property destruction or personal injury involving at least three people. A similar bill was introduced in 2017 by Rep. John Spiros (R-Marshfield). A new version is  (AB-88), authored by Rep. Shae Sortwell (R-Two Rivers) and Sen. Dan Feyen (R- Fond du Lac). 

People who say their property was damaged or vandalized during what the bill defines as a “riot” would also be able to seek civil damages from people or organizations that “provided material support or resources with the intent that such support or resources would be used to perpetrate the offense,” under the bill. It also prohibits government officials with direct authority over law enforcement agencies from limiting or restricting those agencies’ ability to quell vandalism or rioting, as defined by the bill.

Jon McCray Jones, a policy analyst at the American Civil Liberties Union (ACLU) of Wisconsin is concerned that the bill’s definition of a “riot” is too vague. “Using that definition, a riot could be three teenagers driving around in a car knocking off mail boxes,” McCray Jones told Wisconsin Examiner. “Technically, with this definition, a riot could be a food fight.” The bill’s language concerning people who “urge, promote, organize, encourage, or instigate others to commit a riot” is also vague according to McCray Jones, who says this aspect of the bill would open protest leaders and organizers up to criminal and civil liability, regardless of their involvement in rioting.

Sortwell and Feyen did not respond to requests for comment for this story. In written testimony before the Assembly Committee on Judiciary on May 7, both lawmakers said that riots have become more common in recent years. “We saw the destructive riots a few years ago in several metropolitan areas, including right here in Madison and Kenosha,” said Sortwell, referring to George Floyd-inspired protests and unrest in 2020. “Taking a walk down State Street, one would see busted doors and windows of businesses, products stolen, and a smashed statue of a Civil War hero. Several business owners, employees, and citizens had their lives upended.”

Feyen said that “peaceful protests are a cornerstone of our public discourse and will always be protected under the First Amendment, but a line needs to be drawn when those protests go from being peaceful to being destructive and violent.” Although the bill does not  mention specific protests, Feyen wrote, “stricter penalties are needed to deter protesters from crossing that line from protest to property destruction, vandalism, arson, and physical violence.” 

Although scenes of burning buildings and looted stores received a lot of news coverage in 2020, studies suggest that at least 96% of Black Lives Matter protests during the movement’s peak in May and June of 2020 were peaceful. Reports by TMJ4 found that 74.3% of the nearly 200 people who’d been placed on an intelligence list by police in Milwaukee county that year had never been charged with a misdemeanor or felony. Some reports, however, using data derived from insurance claims, estimate that as much as $2 billion in damage nationally occurred due to protests in 2020. 

Some residents of Kenosha – a city referenced by the bill’s authors – recall how months of non-violent protest in Kenosha after Floyd’s death were overshadowed by the unrest that  occurred in August 2020. The shooting of Jacob Blake by Kenosha officer Rusten Sheskey, which paralyzed Blake, led to days of protest and unrest, millions of dollars worth of property destruction, and ended when  then-17-year-old Kyle Rittenhouse fatally shot two people and wounded another, in what a jury later ruled was an act of self-defense. 

During committee hearings on May 7, Sortwell said that the bill seeks to punish not only people who commit vandalism but also “those people who put together the riot.”

Several groups have either lobbied or spoken out against the bill. The Wisconsin Civil Justice Council submitted written testimony opposing the bill on the behalf of “16 business associations working together on civil liability matters.” The council said that the bill would allow for civil compensation for emotional distress stemming from property destruction, noting that emotional damages are generally limited. AB-88 would also allow for any civil compensation to include attorneys’ fees, which would be another departure from current law, the council wrote. Others spoke against the bill in person on May 7, pointing to the bill’s broad language and the chilling effect it could have on political movements. 

“This bill is just a blatant attempt to stop people from protesting,” said McCray Jones. “This is a way to silence organizers from fighting for political change and threatening the status quo in power.” Organizers could potentially be sued for anything that happens at a protest, or even just for transporting someone to a protest that later turns into a riot, as defined under the bill. 

What counts as urging or promoting a riot is broad enough to include common protest chants, like “no justice, no peace,” McCray Jones said. “And if you have ambitious or politically motivated district attorneys…politically motivated prosecutors, the vagueness of this bill could be weaponized … free speech now gets criminally turned into inciting a riot.” 

McCray Jones added that he wonders what a police figure like former Milwaukee PD Chief Harold Breier — notorious for targeting and surveilling Black, brown and LGBTQ communities — would have been able to accomplish had such a law been at his disposal. 

As police departments develop their social media surveillance capabilities, it’s possible under the bill that making posts encouraging people to attend a protest could be seen as an attempt to “urge, promote, organize, encourage, or instigate” a riot under the bill. After the protests of 2020, some agencies that monitored protesters enacted new intelligence-gathering policies to help prevent broad, ideology-based surveillance.  

“I think that right now this moment gives us a very opportune chance to highlight the importance of protecting the privacy of protesters here in Wisconsin,” McCray Jones told Wisconsin Examiner. McCray Jones said he hopes debate about the bill  will become “a jumping off point to talk about not just data privacy for protesters, not just privacy from law enforcement for marginalized communities, but what does it look like to re-think our position on surveillance in the midst of this regime in D.C. that is blatantly ignoring due process, the rule of law, and civil rights.”