United States District Court, W.D. Wisconsin
OPINION & ORDER
WILLIAM M. CONLEY, District Judge.
The Wisconsin State Capitol has regularly been the site of controversy, particularly so over the past few years. Although there have long been rules in place regarding use of the Capitol space, following weeks of very large protests in 2011, those rules were revised, and revised again, including an “emergency” modification in April of 2013, which is the subject of the present lawsuit. On July 24, 2013, plaintiff Philip Dominic Salvia was present at the Capitol during a gathering of the “Solidarity Singers, ” a loose collection of people who have regularly gathered to sing protest songs at noon on weekdays since the 2011 protests. When the gathering that day grew to exceed twenty people, Salvia was singled out for arrest and cited for violating the Wisconsin administrative code.
Though that citation was eventually dropped, plaintiff nevertheless brought this federal lawsuit, alleging that defendants Adam Fell and Chris Weiss, both Capitol Police officers, violated his First and Fourth Amendment rights by arresting him under the code. Both sides have moved for summary judgment: plaintiff seeks a judgment of liability in his favor (dkt. #8); defendants seek dismissal of his claims on grounds of qualified immunity (dkt. #13). For the reasons explained below, the court will grant defendants summary judgment on qualified immunity grounds with respect to plaintiff’s viable First Amendment challenge, but it concludes that fact issues preclude entering judgment for either party on the Fourth Amendment claim. Accordingly, the court will deny both motions with respect to that claim.
Plaintiff Salvia is an adult resident of Madison, Wisconsin. He is employed as a radio personality on “The Devil’s Advocates” talk show, which broadcasts every weekday on “The Mic” 92.1 FM radio station in Madison. (Defs.’ Resp. PPFOF (dkt. #23) ¶ 53.) Salvia covers protests, demonstrations and other events at the Capitol.
The Wisconsin State Capitol Police Department is a division of the Wisconsin Department of Administration (“DOA”), which is responsible for the management of government buildings under Wis.Stat. § 16.84(1), including the adoption of rules. At all times relevant to the complaint, Michael Huebsch was the DOA Secretary. The two defendants remaining in this case, Adam Fell and Chris Weiss, are and were at all relevant times, members of the Capitol Police Department; Fell as an Officer and Weiss as a Sergeant. (Pl.’s Resp. DPFOF (dkt. #32) ¶¶ 2-3.)
i. Capitol rotunda
Wisconsin's State Capitol rotunda has been at the center of public discourse since its completion in 1917. The rotunda was designed to be the center of public interaction among the three branches of state government, the county and city, the University of Wisconsin and the public. Surrounding the rotunda are four massive wings: the west wing houses the State Assembly; the east wing, the Governor's Office and the Wisconsin Supreme Court; the south wing, the State Senate; and the north wing, the North and Grand Army of the Republic Memorial Hearing Rooms.
According to the “Nomination of the Capitol as a National Historical Landmark” of June 10, 2000, there is a clear demarcation between the public and private spaces of the Capitol. The public spaces are monumental in scale and ornate in décor; the private offices are intended to be adaptable to changing needs and are constructed on a smaller scale. There are two general gathering places under the Capitol dome: the ground floor of the rotunda, and the first floor circular rotunda, which includes a circular overlook of the ground floor rotunda at its center.
According to the DOA, the first floor rotunda can seat a maximum of 200. The DOA has determined that the ground floor rotunda corridors and first floor corridors do not work well for large groups or events, but may be appropriate for small groups or short events. According to the DOA’s website, numerous events occur regularly on the first floor rotunda, including American Red Cross blood drives, the State Superintendent’s State of Education Address, annual Kiwanis Clubs Christmas pageants and choral concerts.
ii. Capitol permitting and access policies
Administrative rules requiring a permit for public events in the State Capitol have been in existence since at least 1979, and they were codified at Wis. Admin. Code § Adm 2 (“Adm 2”) on February 6, 1998. The 1998 version of Adm 2 allows the DOA to permit building and facilities to be used for “the purpose of governmental business, public meetings for the free discussion of public questions, or for activities of a broad public purpose” subject to reasonableness considerations. Members of the public seeking to use the Capitol for those purposes were instructed to apply in writing to the DOA at least 72 hours in advance. Beyond that requirement, the 1998 version of Adm 2 provided no guidance as to what activities triggered the permitting requirement.
The Adm 2 requirement garnered little controversy over most of its lifetime. Between 2006 and 2013, the number of applications consistently ranged between 430 and 517 each year. The then Chief of the Capitol Police also granted a majority of those applications, and no citations were issued for holding an event without a permit until after 2010.
In February of 2011, individuals and groups gathered at the State Capitol to protest politically charged issues, including legislation changing the collective bargaining rights of most Wisconsin public employees. Singing emerged as a popular form of protest during this time; some of this singing became known as the “Solidarity Sing Along, ” with participants usually gathering in the Capitol rotunda on an informal basis at noon on most weekdays. The Solidarity Sing Along did not have a permit to gather in the rotunda.
In November or December of 2011, the DOA issued a State Facilities Access Policy (“Access Policy”) as supplemental guidance for the public. The Access Policy outlines specific conditions governing the public areas of the Capitol, information for scheduling events, requirements for obtaining a permit, enforceability of the permits and other key provisions relating to the public’s access to the Capitol.
By July of 2012, when David Erwin was first appointed Chief of the Wisconsin Capitol Police, the scale of the protests had significantly diminished, with the average number of people in the rotunda dropping from the thousands daily to fewer than one hundred. Chief Erwin nevertheless announced plans to begin strictly enforcing the Capitol’s rules in an effort to “restore normalcy and safety” to the building. A few months later, in September of 2012, Capitol Police began to arrest protestors in the Capitol and issue citations for failure to comply with the regulations and Access Policy.
In April of 2013, in order to gain greater compliance from user groups regarding the Capitol’s permit requirement, the state approved “emergency” modifications to Adm 2. (Lazar Decl. (dkt #19) Ex. K.) In line with the “emergency” modifications, the DOA made corresponding revisions to the Access Policy. For purposes of this opinion, which involves events that occurred on July 24, 2013, the April 2013 “emergency” modifications to Adm 2 and the April 2013 Access Policy are the relevant law. (Defs.’ Resp. PPFOF (dkt. #23) ¶ 33.)
At that time, Wis. Admin. Code § Adm 2.14(2)(v) read in relevant part that:
(2) In order to preserve the order which is necessary for the enjoyment of freedom by occupants of the buildings and facilities, and in order to prevent activities which physically obstruct access to department lands and buildings or prevent the state from carrying on its instructional, research, public service, or administrative functions, and pursuant to s. 16.846, Stats., whoever does any of the following shall be subject to a forfeiture of not more than $500:
. . .
(v) Without approval of the department, conducts an event in those buildings and facilities managed or leased by the department or on properties surrounding those buildings.
Defendants have also stated that they would likely have amended plaintiff’s citation to refer to § Adm 2.14(2)(vm), had they not ultimately dropped it. (Decl. of Jeff Scott Olson Ex. B (dkt. #12-1) ¶ 12.) That section read in part:
Any participant or spectator within a group constituting an unlawful assembly, who intentionally fails or refuses to withdraw from the assembly after it has been declared unlawful, shall be subject to the penalties identified in sub. (2) (intro.).
The April 2013 Access Policy required the public to apply for a permit in advance of any performance, ceremony, presentation, meeting, rally, organized tours not led by department or legislative staff or officials, festival, reception or the like held in public areas of state facilities or buildings. (Defs.’ Resp. PPFOF (dkt. #23) ¶ 35.) Expressly exempted from the permitting requirement were: (1) informal tourist activities; (2) constituents or members of the public visiting elected officials otherwise conducting routine business with any state agency or state entity; (3) “spontaneous” events, defined as any gathering of people for the purpose of actively promoting any cause, whether by conducting a picket, parade, demonstration or the like in response to an unforeseen triggering event that has occurred within the preceding three calendar days; (4) any event on the Capitol lawn expecting fewer than 100 people; and (5) any rally (defined as a gathering of people for the purpose of actively promoting any cause) inside the Capitol consisting of fewer than four people. (Id. at ¶ 36.)
The Access Policy granted the power to enforce the permit requirements to the Capitol Police. (Id. at ¶ 37.) Events with or without permits could be terminated if the Capitol Police Shift Commander on duty determined that the event was believed to have exceeded the attendance estimate or the capacity of the building, or if the continuation of the event would constitute a danger to the health, safety or welfare of the public.
Wisconsin’s Adm 2 is posted on the DOA’s website for the public’s access. Press releases regarding the permitting rules are also posted on that ...