Confronting Implicit Bias in Criminal Prosecutions in Southeastern Wisconsin

What does it mean when President Trump states that he wants to do away with birthright citizenship? To answer that, one must understand some legal history. Dred Scott v. Sandford , 60 U.S. (19 How.) 393 (1857), was a horrible decision of the United States Supreme Court which found that the U.S. Constitution did not extend American citizenship to people of black African descent, and therefore they could not enjoy the rights and privileges the Constitution conferred upon American citizens. In essence, Black people could never be citizens of the United States, even if they were free. Dred Scott , 60 U.S. at 406–27. Dred Scott thus endorsed racialized citizenship in America. Chief Justice Roger B. Taney read the 7-2 opinion which also stated that Congress had no authority to ban slavery from a federal territory. In this ruling, the U.S. Supreme Court stated that enslaved people were not citizens of the United States and, therefore, could not expect any protection from the federal go vernment or the courts. The opinion also stated that Congress had no authority to ban slavery from a Federal territory. In essence – and contrary to tradition – the Supreme Court imposed a test of inherited citizenship in America. Due to the existence of chattel slavery, the Court reasoned, all Black people in the United States of America failed this test since all of them (according to Chief Justice Roger B. Taney) were either enslaved or descended from enslaved people. Dred Scott also moved us a step closer to our Civil War. Justice Taney wrote that “[t]his opinion [as to Black inferiority] . . . was regarded as an axiom in morals as well as in politics, which no one thought of disputing, or supposed to be open to dispute; and men in every grade and position in society daily and habitually acted upon it in their private pursuits, as well as in matters of public concern, without doubting for a moment the correctness of this opinion.” Dred Scott , 60 U.S. at 407. Because members of the “negro African race” were considered “beings of an inferior order, and altogether unfit to associate with the white race” when the Constitution was drafted, neither slaves nor their descendants, regardless of whether they were free, were “intended to be included in the general words used in that memorable instrument.” Id. at 406, 407; see also id. at 404–05. Thus, our Supreme Court’s decision in Dred Scott v. Sandford set forth a racialized definition of American citizenship that excluded Black people, free or enslaved, just four years before the start of the Civil War. In 1865, after the Union's victory in the Civil War, the Court's ruling in Dred Scott was rejected by the passage of the Thirteenth Amendment to the U.S. Constitution, which abolished slavery, and the Fourteenth Amendment, whose first section guaranteed citizenship for "[a]ll persons born or naturalized in the United States and subject to the jurisdiction thereof." The Supreme Court unequivocally found that “[t]he main object of the opening sentence of the fourteenth amendment was to settle the question. . . as to the citizenship of free [Black people]. . . and to put it beyond doubt that all persons, white or black, and whether formerly slaves or not, born or naturalized in the United States, and owing no allegiance to any alien power, should be citizens of the United States and of the state in which they re- side.” Elk v. Wilkins , 112 U.S. 94, 101 (1884) (citations omitted and emphasis added); United States v. Wong Kim Ark , 169 U.S. 649, 675 (1898) (noting that the “fundamental principle of citizenship by birth within the dominion was reaffirmed in the most explicit and comprehensive terms” in the Fourteenth Amendment and the Civil Rights Act of 1866). The Civil Rights Act of 1866, enacted over President Johnson’s (a racist former slaveowner) veto, set forth that “all persons born in the United States, and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States.” Wong Kim Ark , 169 U.S. at 675 (discussing the Act). See, GARRETT EPPS, DEMOCRACY REBORN: THE FOURTEENTH AMENDMENT AND THE FIGHT FOR EQUAL RIGHTS IN POST-CIVIL WAR AMERICA (2006) (discussing Johnson’s veto and noting that “no Congress had ever before overridden a presidential veto on an important measure”), https://www.amazon.com/Democracy-Reborn-Fourteenth-Amendment-Post-Civil/dp/0805086633 The whites only citizenry principle set forth in Dred Scott was rejected for the inclusive Fourteenth Amendment principle of citizenship at birth for all persons, regardless of race in America. It is important to understand that the Fourteenth Amendment principle of citizenship at birth was not a new idea but one based on three hundred years of British common law. Wong Kim Ark , 169 U.S. at 655–58; Id. at 660 (“Nothing is better settled at the common law than the doctrine that the children, even of aliens, born in a country, while the parents are resident there under the protection of the government, and owing a temporary allegiance thereto, are subjects by birth.”) (citations omitted). This rule was articulated by Sir Edward Coke in Calvin v. Smith , 77 Eng. Rep. 377 (KB) (Calvin’s Case) (1608). Heather Horn, Birthright Citizenship Wasn’t Born in America, THE ATLANTIC (Sept. 1, 2015), https://www.theatlantic.com/international/archive/2015/09/birthright-citizenship-donald-trump-england/403159/ Therefore, President Trump’s desire to reject birthright citizenship is contrary to constitutional law enacted by virtue of the American Civil War.

Let’s try a little thought experiment. A husband and pregnant TIwife from the Taiwan are flying to the United States. As the jet enters American air space, the mother gives birth to her baby. Does the baby have a right to American citizenship? This is not just a thought experiment. It really did happen. Plane birth sparks controversy in Taiwan, https://www.bbc.com/news/world-asia-34568772 . However, the actual event did not happen in American airspace but over international waters. But assume the facts of our thought experiment. The answer to the question does the baby have a right to American citizenship was answered by the Supreme Court over a 100 years ago in U.S. v. Wong Kim Ark , 169 U.S. 649 (1898). This judicial decision has been affirmed by the US Department of State. The U.S. Dept. of State Foreign Affairs Manual, 8 FAM 301.1-5 (“The rules applicable to vessels obviously apply equally to airplanes. Thus a child born on a plane in the United States or flying over its territory would acquire United States citizenship at birth.”), https://fam.state.gov/fam/08fam/08fam030101.html In Wong Kim Ark , the U.S. Supreme Court examined at length the theories and legal precedents on which the U.S. citizenship laws are based. In particular, the Court discussed the types of persons who are subject to U.S. jurisdiction. The Court affirmed that a child born in the United States to Chinese parents acquired U.S. citizenship even though the parents were, at the time, racially ineligible for naturalization. The Court also concluded that: “The 14th Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including children here born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes. The Amendment, in clear words and in manifest intent, includes the children born within the territory of the United States, of all other persons, of whatever race or color, domiciled within the United States.” Id. at 693. Pursuant to this ruling: (a) Acquisition of U.S. citizenship generally is not affected by the fact that the parents may be in the United States temporarily or illegally; and that; and (b) A child born in an immigration detention center physically located in the United States is considered to have been born in the United States and be subject to its jurisdiction. This is so even if the child’s parents have not been legally admitted to the United States and, for immigration purposes, may be viewed as not being in the United States. Wong Kim Ark, found that while the 14th amendment clearly declares birthright citizenship, the idea comes from an idea that existed in colonial times, that prevailed at the time it was adopted and ratified. As the Court said at 169 U.S. at 676: As appears upon the face of the amendment, as well as from the history of the times, this was not intended to impose any new restrictions upon citizenship, or to prevent any person from becoming citizens by the fact of birth within the United States, who would thereby have become citizens according to the law existing before its adoption. It is declaratory in form, and enabling and extending in effect. Its main purpose was, as has been often recognized by this court, to establish the citizenship of free negroes, which had been denied in the opinion delivered by Chief Justice Taney in Dred Scott v Sandford (1857) 19 How 393, and to put it beyond doubt that all blacks, as well as whites, born or naturalized within the jurisdiction of the United States are citizens of the United States. Citations omitted. Thus, the Court established that Dred Scott was wrongly decided. Moreover, the common rule of birthright citizenship was found to be a constitutional right that could not be changed by statute. Donald Trump, however, suggested that unnamed legal scholars believe that birthright citizenship may not apply to the children of aliens residing in the United States without proper documentation. This argument apparently hinges upon an interpretation of the phrase “subject to the jurisdiction thereof” in the 14th Amendment. The unnamed legal scholars mentioned by Trump clearly have not read Wong Kim Ark. The Court determined that persons born in an area under the control of the monarch owed their allegiance to the monarch and were also deemed protected by the monarch; that is the essence of citizenship: The fundamental principle of the common law with regard to English nationality was the allegiance ….or “power” of the King. The principle embraced all persons born within the King’s allegiance and subject to his protection. Such allegiance and protection were mutual … [and] were predictable of aliens in amity, so long as they were within the kingdom. Children born in England, of such aliens, were therefore natural born subjects. But the children, born within the realm, of foreign ambassadors, or the children of alien enemies, born and during within their hostile occupation of parts of the King’s dominions, were not natural born subjects, because not born within the allegiance, the obedience, or the power, or, as would be said this day, within the jurisdiction of the King. Wong Kim Ark at 655. Emphasis added. This clearly sets forth that when the 14th Amendment was adopted, the framers of the amendment meant the term ”subject to the jurisdiction” of the United States to have the same meaning as in common law; that is, people within the geographic power of the king and who therefore owed allegiance to the king. Trump and his followers should recall Afroyim v. Rusk , 387 U.S. 253 (1967) which analyzed a different area of citizenship but made the point that: Citizenship is no light trifle to be jeopardized any moment Congress decides to do so under the name of one of its implied grants of power. … The very nature of our free government makes it completely incongruous to have a rule of law under which a group of citizens temporarily in office can deprive another group of citizens of their citizenship. We hold that the Fourteenth Amendment was designed to, and does, protect every citizen of this Nation against a congressional forcible destruction of his citizenship, whatever his creed, color, or race.. Id at 268 In other words, Congress has no express power under the Constitution to strip a person of citizenship, and no such power can be sustained as an implied attribute of sovereignty, as was recognized by Congress before the passage of the Fourteenth Amendment. Id at 256-57. “The Constitution, of course, grants Congress no express power to strip people of their citizenship, whether in the exercise of the implied power to regulate foreign affairs or in the exercise of any specifically granted power.” Id. The Supreme Court applied the equal protection clause of the 14th Amendment to undocumented school-age children who had been denied a free public education by the State of Texas. In doing so the Court directly addressed the phrase “subject to the jurisdiction thereof” in the 14th Amendment: In appellants’ view person who have entered the United States illegally are not “within the jurisdiction” of a State even if they are present within the State’s boundaries and subject to its laws. Neither our cases nor the logic of the Fourteenth Amendment supports that construction…. Plyler v. Doe , 457 U.S. 202, 211 (1982)

It is now clear the criminal system all too frequently makes mistakes. By mistake I am referring to a conviction which has been shown to be wrong by exoneration. exoneration occurs when a person who has been convicted of a crime is officially cleared after new evidence of innocence becomes available. As of February 25, 2024, the National Registry of Exonerations has recorded 3,478 exonerations in the United States from 1989 through the end of 2023. THE NATIONAL REGISTRY OF EXONERATIONS REPORT (MARCH 18, 2024), chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https://www.law.umich.edu/special/exoneration/Documents/2023%20Annual%20Report.pdf Even one exoneration casts a reasonable doubt on the integrity of the criminal system. This situation has become such a concern that October 2 has been designated as International Wrongful Conviction Day. A terrible cost of wrongful convictions is the loss of irreplaceable years behind bars. Persons exonerated in 2023 lost an average of 14.6 years to wrongful imprisonment for crimes they did not commit—2,230 years in total. Importantly, official misconduct occurred in at least 118 exonerations in 2023. Official misconduct means police, prosecutors, or other government officials significantly abused their authority or the judicial process in a manner that contributed to the exoneree's conviction. 75 homicide cases—85% of homicide exonerations in 2023—were marred by official misconduct. Nearly 84 percent of exonerations last year (127/153) were persons of color. Nearly 61 percent of the exonerees (93/153) were Black. 50 exonerations in 2023 were for convictions based at least in part on mistaken witness identifications. 43 cases involved forensic evidence that was false or misleading. 32 exonerations involved false confessions (YES PEOPLE CONFESS TO CRIMES THEY DO NOT COMMIT). A confession is false when a statement is made to law enforcement at any point during the proceedings which was interpreted or presented by law enforcement as an admission of participation in or presence at the crime, even if the statement was not presented at trial. A statement is not a confession if it was made to someone other than law enforcement. A statement that is not at odds with the defense is not a confession. A guilty plea is not a confession.

Can the government make wearing a hat the wrong way a criminal offense? I have a case where a kid wore his baseball hat to the right in a park. The police arrested him for disorderly conduct. Is such an arrest valid? In Wisconsin, the power to arrest must be authorized by statute. City of Madison v. Two Crow , 88 Wis. 2d 156, 159, 276 N.W. 2d 359 (Ct. App. 1979). Under Wisconsin Statutes, a police officer may arrest a person without a warrant when the officer has reasonable grounds to believe the person is committing or has committed a crime. § 968.07 (1)(d), Wis. Stats. Case law has interpreted the phrase “ reasonable grounds” to be the equivalent of probable cause. Ball v. State , 57 Wis. 2d 653,659, 205 N.W.2d 353 (1973); State v. Paszek , 50 Wis. 2d 619, 624, 184 N.W. 2d 836 (1971). Probable cause to arrest is “... that quantum of evidence which would lead a reasonable police officer to believe the defendant probably committed a crime.” Ball , 57 Wis. 2d at 659, quoting, State v. Doyle , 40 Wis. 2d 461,466,162 N.W. 2d 60 (1968); Molina v. State , 53 Wis. 2d 662,671,193 N.W. 2d 874 (1972). Probable cause is, therefore, the sine qua non of a reasonable or lawful arrest. Dunaway v. New York , 442 U.S. 200, 208 (1979). This quantum of evidence must be more than an officer’s subjective good faith belief or suspicion. Leroux v. State, 58 Wis. 2d 671, 682-83, 207 N.W. 2d 589 (1973). While the evidence need not be the same quantum to justify a conviction, the evidence of guilt must amount to more than a mere possibility of guilt. State v. DiMaggio, 49 Wis. 2d 565,572-73, 182 N.W. 2d 466 (1971). Without probable cause, therefore, an arrest is arbitrary and contrary to the “paramount purpose” of the Fourth Amendment. Amsterdam, Perspectives on the Fourth Amendment, 58 Minn. L. Rev. 349, 417 (1974). The test of whether there is a sufficient quantum of evidence is whether the arresting officer could have obtained an arrest warrant on the basis of the information known prior to the arrest. Loveday v. State, 74 Wis. 2d 503, 247 N.W. 2d 116 (1976). In this case the police officer may have a subjective good faith belief or suspicion of criminal activity, but that is not probable cause to make an arrest. The criminality of a defendant cannot be made to turn upon a policemen’s suspicion or his satisfaction with the citizen’s account of himself (note that the burden is put on the citizen to explain his presence or his actions) or his view of what is orderly or disorderly, the statutes or ordinances in question delegate to the policemen too much power over the citizen’s liberty-the citizen is subjected to the discretion, be it arbitrarily exercised or not, of the policemen as to whether his actions are to be, in the given case, classified as criminal. City of Dayton v. Allen , 28 Ohio Misc. 181, 271 N.E. 2d 574, 577 (Ohio 1971). Emphasis added Wearing a hat sideways is simply not criminal. Nor could such conduct ever be criminal in a democratic America. What we wear is a part of who we are: The body is the innermost part of the material Self in each of us; and certain parts of the body seem more intimately ours than the rest. The clothes come next. The old saying that the human person is composed of three parts—soul, body and clothes—is more than a joke. We so appropriate our clothes and identify ourselves with them that there are few of us who, if asked to choose between having a beautiful body clad in raiment perpetually shabby and unclean, and having an ugly and blemished form always spotlessly attired, would not hesitate a moment before making a decisive reply.1 WILLIAM JAMES, THE PRINCIPLES OF PSYCHOLOGY 292 (1890). Wearing a baseball cap is the type of conduct is constitutionally protected. Cf. Tinker v. Des Moines Independent Community School District , 393 U.S. 503 (1969) (student wearing black arm band on sleeve in school is constitutionally protected speech). There was considerable debate in colonial America about what rights should be specifically enumerated in the Bill of Rights. See, Hamilton, Madison, Jay, The Federalist Papers, (1961) Chap. 38, 84; Jefferson, T., On Democracy (Saul K. Padover e.d. 1939) p.47. During the 1789 Congressional debates, there was much discussion about whether the right of assembly should be mentioned in the Bill of Rights. Brant, I., The Bill of Rights (1965) p.53-67. It was in the midst of this discussion that Congressman Benson of New York stated this right should be included so that it could not be infringed upon by the government. Congressman Sedgwick of Massachusetts responded by stating: If the committee were governed by that general principle... they might have declared that a man should have a right to wear his hat if he pleased... but [I] would ask the gentleman whether he thought it necessary to enter these trifles in a declaration of rights, in a Government where none of them were intended to be infringed.” Id., at 54- 55. Emphasis added. Therefore, court’s have found that one’s personal appearance is deserving of constitutional protection. Peppies-Courtesy Cab Co. v. City of Kenosha , 165 Wis. 2d 397; 475 N.W.2d 156 (1991) (ordinance requiring cab drivers to cut hair unconstitutional); Breen v. Kahl , 419 F.2d 1034, 1036 (7th Cir. 1969) (personal hair length is personal freedom protected by the United States Constitution). This conduct is like members of the National Socialist Party who wish to parade through a predominately Jewish community in uniforms reminiscent of those worn by members of the German Nazi Party while saluting the swastika. While distasteful, such conduct is, and must always be, constitutionally protected. Collin v. Smith , 447 F.Supp. 676 (N.D.Ill.1978), aff’d, 578 F. 2d 1197 (7th Cir. 1978). As in the case of the uniformed Nazis saluting and marching through Skokie, the presumed conduct of my client is constitutionally protected. My client’s conduct does not therefore allow a police officer to reasonably suspect my client of a crime based upon that conduct. Because a police officer cannot reasonably suspect my client of a crime based upon such conduct, an officer cannot make a valid stop based upon this conduct. See, §968.24; Wisconsin Law Enforcement Officers Criminal Law Handbook, at 43, 44.

Prosecutors are powerful actors in the criminal system. They select what charges and when such charges will be filed against someone. Judges have warned for decades that misconduct by prosecutors threatens the Constitution’s promise of a fair trial. In 1997, Congress passed the Hyde Amendment, which was designed to discourage misconduct by allowing the reimbursement of legal fees to defendants who are the victims of wrongful Federal prosecution. In a landmark series, USA Today documented 201 cases in which judges determined that Justice Department prosecutors–-the nation’s most elite and powerful law enforcement officials—violated laws or legal ethics. For example, in Arizona, a woman spent eight years in prison for her conviction in a 2000 bank robbery because the prosecution never told her that another woman —who matched her description almost exactly — had been charged with robbing banks in the area. In Washington, D.C., a court in 2005 threw out murder charges against two men who had spent two decades in prison for a murder they didn't commit, in part because prosecutors hid evidence that two others could have committed the crime. However, some prosecutors value justice over conviction. As pointed out by the Brennan Center, over the past decade, some prosecutors have developed approaches that aim to reduce racial and economic disparities and unjust outcomes in the legal system — such as excessive sentences or the criminalization of poverty through cash bail — while preserving public safety. Myths and Realities: Prosecutors and Criminal Justice Reform, https://www.brennancenter.org/our-work/research-reports/myths-and-realities-prosecutors-and-criminal-justice-reform In response to this emphasis on justice rather than conviction, some people believe these prosecutors are increasing crime. But is such a belief supported by the facts? Simply put, “NO.” In fact, sometimes the reforming prosecutors have caused crime rates to go down. Between Violent Crime and Progressive Prosecution in the United States (2024 Report), https://munkschool.utoronto.ca/research/between-violent-crime-and-progressive-prosecution-united-states-2024-report. For instance, Baltimore State’s Attorney Marilyn Mosby adopted a policy of declining prostitution and lower-level drug offenses during the Covid-19 pandemic. Subsequent research showed very low recidivism among those who had their cases declined, and no increase in these offenses citywide. In 2019, Cook County State Attorney Kim Foxx instructed attorneys in her office not to prosecute people accused of driving with licenses that were suspended or revoked for financial reasons, like failure to pay child support, tolls, or parking tickets. This allowed prosecutors in her office to spend more of their time prosecuting serious and violent crimes. Evaluation of Prosecutorial Policy Reforms Eliminating Criminal Penalties for Drug Possession and Sex Work in Baltimore, Maryland, chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https://publichealth.jhu.edu/sites/default/files/2021-10/prosecutorial-policy-evaluation-report-20211019.pdf In the words of the Brennan Center, “Before criticizing pro-reform prosecutors who are attempting to create a more equitable justice system that also protects public safety, critics should familiarize themselves with the data to better understand that crime trends in prosecutors’ jurisdictions across the political spectrum tend to be about the same. Prosecutors have limited effect on crime rates, but their policies can mitigate or increase some of the harms caused by decades of over-prosecution.”

James Madison, the architect of the Constitution, believed that “a people who mean to be their own Governours, must arm themselves with the power which knowledge gives.” Letter from James Madison to W.T. Barry (Aug. 4, 1822), https://founders.archives.gov/documents/Madison/04-02-02-0480#:~:text=A%20popular%20Government%2C%20without%20popular,the%20power%20which%20knowledge%20gives . For “A popular Government, without popular information, or the means of acquiring it, is but a prologue to a Farce or a Tragedy; or perhaps both.” Id. The United States Supreme Court found the Constitution protects “the right of citizens to inquire,” as “a precondition to enlightened self-government and a necessary means to protect it.” Citizens United v. FEC , 558 U.S. 310, 339 (2010). A citizen’s right to inquire holds true in a variety of contexts. Perhaps the most common situation for a citizen is when a police officer pulls them over for a traffic stop. During a traffic stop, do not lie or give false documents to the police. Keep your hands where the police can see them. Because “one of the principal characteristics by which we distinguish a free nation from a police state,” a person has a constitutional right to peaceably ask an officer questions to gain information when stopped without risking arrest. City of Houston v. Hill , 482 U.S. 451, 462-63 (1987). However, when the police officer asks you questions like “where were you born?” “do you know why I pulled you over?”, “where are you coming from?” or “have you had any drinks tonight?” you should respectfully decline to answer the officer. It is important to note that Miranda rights do not go into effect until after you are in custody. The answers you give to these questions are admissible in court. If an officer is asking you questions like this, you may want to ask the officer if you are free to leave. If the officer says no you are not free to leave, you are likely in police custody. Say you wish to remain silent and ask for a lawyer immediately. Don't give any explanations or excuses. Don't say anything, sign anything, or make any decisions without a lawyer. Remember: the officer is not your friend asking you about how your evening is going. The officer is doing her job to try and gather evidence by asking you questions which will be used against you. For instance, the police may be asking you these questions to determine if they smell alcohol on your breath. Nor can your refusal to answer those questions by the officer be used as a basis to arrest someone for resisting or obstructing the officer. The Supreme Court has made it clear that “[h]istorically the struggle for freedom of speech and press in England was bound up with the issue of the scope of the search and seizure power.” Marcus v. Search Warrants of Prop. , 367 U.S. 717, 724 (1961) (citing Fred. S. Siebert, Freedom of the Press in England, 1476–1776 (1952); Laurence Hanson, Government and the Press, 1695–1763 (1936)); see also Boyd v. United States , 116 U.S. 616, 625–27 (1886). The First and Fourth Amendments were written “against the background of knowledge that unrestricted power of search and seizure could also be an instrument for stifling liberty of expression.” Marcus , 367 U.S. at 729. This means law enforcement must apply the Fourth Amendment with “scrupulous exactitude” when speech is involved. Stanford v. Texas , 379 U.S. 476, 485 (1965). You do not have to consent to a search of yourself or your belongings, but police may order you out of your vehicle and pat down your clothing if they suspect a weapon. Note that refusing consent may not stop the officer from carrying out the search against your will, but making a timely objection before or during the search can help preserve your rights in any later legal proceeding. When the First and Fourth Amendments meet, police and courts cannot mechanically squeeze speech into a penal statute. Instead, they must “examine what is ‘unreasonable’ in the light of the values of freedom of expression.” Roaden v. Kentucky , 413 U.S. 496, 501, 504 (1973) (“The Fourth Amendment . . . must not be read in a vacuum.”). This principle applies regardless of whether the police are seizing papers belonging to a person or seizing a person because they exercised their right to free expression. See Stanford , 379 U.S. at 485. The "scrupulous exactitude" required by the Fourth Amendment for police to seize "things" like papers applies with equal force to First Amendment right to gain knowledge by asking questions of an arresting officer. Id.

Certain political parties in Wisconsin have indicated they would have people at the polling places for the coming November election. Some election observers cause problems at the polling place. Conservative election observers tied to an ongoing lawsuit challenging Wisconsin’s absentee ballot laws, as well as past efforts to overturn the 2020 election, caused disruptions at multiple polling places and ballot processing sites in Glendale and Milwaukee, according to officials in those cities. Right-wing election observers cause disruptions in Milwaukee, Glendale polling places, https://www.cbs58.com/news/election-observers-removed-from-glendale-polling-places-after-disruptions So the question becomes who can observe elections in Wisconsin? And what can they do as observers? Anyone, other than a candidate on the ballot for the election, has the right to be present to observe the conduct of the election. Wis. Stat. § 7.41(1). They must check in with the chief election inspector and be issued an Election Observer tag or badge. However, observers may not conduct any of the following disorderly activities while monitoring the conduct of the election and/or election administration event. 1. Wear clothing or buttons related to candidates, parties, or referenda that are intended to influence voting at the election. 2. Interact with voters, except when asked by an elector to provide assistance in marking their ballot. 3. Watch voters mark their ballots. 4. Have conversations about candidates, parties or ballot questions. The Wisconsin Elections Commission has established Administrative Rule EL Chapter 4, outlining a set of rules for observers at the polling place or other location where votes are being cast, counted, canvassed or recounted. See, chrome extension://efaidnbmnnnibpcajpcglclefindmkaj/https://docs.legis.wisconsin.gov/code/register/2022/803a3/register/ss/ss_089_22/ss_089_22.pdf A summary of the observer rules must be provided to each observer. The Wisconsin Election Observers Rules-at-a-Glance brochure may be used to meet this requirement and is available on the agency website. There is no requirement for observers to obtain a permit. All observers will be accorded the same respect regardless of their party affiliation or non-affiliation. A designated observation area at the polling place or other location where votes are being cast, counted, canvassed or recounted should permit observers to hear instructions and to readily observe all public aspects of the process without disrupting the activities. If observers are unable to hear the election inspectors and voters, they may ask for the instructions or information to be repeated. However, there is no requirement that the instructions or information be broadcast at a specific volume. If space permits, observers may move within the designated observer area to better view and/or hear the interactions. To ensure the orderly conduct of the election and/or election administration event, and if necessary due to physical limitations of the host location, an election official may reasonably limit the number of observers representing the same organization or candidate. Observers may silently use cell phones in the polling area. Observers may not use cell phones to take or make voice calls (ringer should be silenced). Observers may not take photographs or videos in the polling place. The chief inspector may prohibit an observer from using a cell phone if it is deemed disruptive. While observers are present, they are prohibited from electioneering or interfering with the orderly conduct of the election and/or election administration event. Any observer who engages in loud, boisterous, or otherwise disruptive behavior with other observes or voters that the election official believes threatens the orderly conduct of the activity or interferes with voting may receive a warning from the election official. If a warning has been issued, and the offending observer continues the disorderly behavior, the chief inspector should order the offending observer to depart the location. If the offending observer declines or otherwise fails to comply with the chief inspector’s order to depart, the chief inspector should summon local law enforcement to remove the offending observer. In the event that the chief inspector orders an observer to leave a location, the chief inspector is required to provide a written order to the observer (EL-110) which includes the reason for the order and the signatures of the chief inspector as well as another election inspector election official representing the opposite political party, if available. The chief inspector has sole authority to order the removal of an observer, but another election inspector may note his or her concurrence or disagreement with the decision on the Inspectors’ Statement (EL-104). When an EL-110 is completed, the municipal clerk or board of election commissioners is required to notify the WEC of the incident within seven days. This notification should include a copy of the EL-110, if available, and the portion of the Inspectors’ Statement which documents the incident. WEC staff will use this information to provide a summary to the Commission after each election of all reported incidents. Observers are not permitted to handle an original version of any official election document, including voter registration forms and/or proof of residence documents while voters are registering. Observers may examine the poll list so long as they do not interfere with election official responsibilities. The poll list may not be handed to the observers. The election official determines whether it is an appropriate time to allow an observer to examine or photograph the poll list. If voters are standing in line to have their names recorded and to receive a ballot, it is not an appropriate time to allow observers to view the poll lists. The poll list must remain under the control of election officials at all times. Observers are not permitted to make a photocopy of or take photographs or video of proof of residence documents and voted ballots. MEDIA OBSERVERS Members of the media may be present at the public location hosting an election and/or election administration event but cannot interfere with the activities. Members of the media are strongly encouraged to conduct the majority of their activities outside of the room where the election is being conducted. It is the responsibility of the election official to deal directly with any media person who is harassing voters. Generally:  1. Communications media observers shall be permitted to use photography and video cameras provided the cameras are not used in a manner that allows the observer to see or record how an elector has voted and provided the cameras do not disrupt or interfere with voting or disrupt the orderly conduct of the election. 2. Contact with electors in the voting area should be limited. This includes interacting with voters who are waiting in line to check-in and/or cast their ballots. 3. Interviews should be held outside of the voting area to ensure doors and entrances are not blocked and the voting process is not disrupted. Finally, electioneering is any activity intended to influence voting at an election. Electioneering is prohibited on public property within 100 feet of any building entrance a voter may use to access the polling place. This does not apply to private property within the 100 feet rule. Wis. Stats. §§ 12.03(2), 12.035(3). There is an exception for election-related bumper stickers on vehicles parked within 100 feet of an entrance to a polling place for the length of time it takes for the occupants to vote. If it appears that the primary purpose of parking a vehicle within 100 feet of an entrance to a polling place is to influence voting, then election inspectors should attempt to contact the vehicle owner and have them move and should contact a law enforcement officer. SOURCE: Election Day Manual for Wisconsin Election Officials (Aug. 2024)

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