May 12, 2015 4:02 PM

The verdict is in on the Tony Robinson case. After applying the law to the unique facts of this incident, District Attorney Ozanne has determined that MPD Officer Matt Kenny will not be charged criminally.

In the aftermath of this decision, our City finds itself at a crossroad. How will we--as community--choose to respond? Will the narratives portrayed elsewhere become our "moment" where Madison becomes another provocative story line marred with senseless acts of disorder which only serve to disrespect the rights and property of others? Or will we choose to take the higher road and show the nation that civic dissent and even acts of civil disobedience can co-exist with MPD officers who have consistently demonstrated respect for First Amendment rights and restraint in the exercise of their lawful authority?

We have the capacity to be a part of a "movement" rather than settle for a "moment." Months prior to the outset of this tragic event, an initiative was well underway through the facilitation of the United Way seeking more thoughtful, long-term approaches to police and citizen encounters. MPD and other law enforcement agencies have been consistently meeting with not-for-profits, clergy, leaders of color, MMSD, and members of City government to establish both a dialogue and a mechanism for exploring ways in which police can be more effective in promoting trust while also examining systems that may contribute to racial disparities in our criminal justice system.

With the death of Tony Robinson came a collective sense of urgency. While the MPD was/is the most immediate object of scrutiny, the fact remains that the issues confronting Madison go well beyond the pale of this verdict or our control. Pronounced issues of poverty exacerbate feelings of despair and helplessness. Schools are not meeting the needs of all of our students. Joblessness and unskilled labor are punctuated with double digit deficits for people of color. Ever-prevalent gun violence has become the "new" normal plaguing our City and the news headlines. And I am not going to absolve law enforcement for whatever role we have played in being complicit in the calculus of racial disparities. Given this sobering backdrop, one can understand why there is a sense of hopelessness and desperation with those who have not enjoyed (or even had the same access to) all of the opportunities that many of us take for granted. Systems improvements borne out of intentional, long-term, collaboration is our "best" option for the future. Unrest like we have witnessed elsewhere in our country cannot possibly aid in constructive engagement and only holds us back. The environment for healing and reconciliation has been forged, owing to the incredible capacity of the Robinson family and their urging of the community to deal with the issues at hand with responsible activism. For their incredible sense of the "moment" as well as the "movement" taking place, the City is very beholden to the Robinson's for their capacity to speak to peace in spite of their own sense of personal loss and grief.

I have no doubt that some individuals will make a principled decision to get arrested in order to make a definitive statement. That is, in fact, a hallmark of civil disobedience and that decision is highly personal and should not be coaxed from others as the consequences will only affect the violator. Arrests CAN have long term implications which I feel duty-bound to discuss.

There are basically two kinds of unlawful behavior(s) that can lead to an "arrest." There are the more benign types of violations that are classified as city ordinances. Ordinances are "forfeitures" or fines; so long as you pay them, they go away. In the vast majority of the demonstrations we work, we try to avoid enforcement options altogether, preferring to work WITH folks in allowing them some reasonable options prior to resorting to tickets or physical arrests. If your activity is confined to that of a city ordinance violation AND you have a valid form of identification with you, then when placed under arrest we will take you to an off-site location, write the ticket, and then release you from there. This is called the classic "cite-and-release." HOWEVER, should you not have valid identification that proves who you are OR you choose to engage in additional behavior that elevates matters (i.e., lying about your name, actively resisting arrest), then "cite-and-release" is no longer on the table. Having no identification can lead you to jail as can being charged with a "crime."

Getting charged with a city ordinance violation is expensive; but if you have identification, then at least you can be cited-and-released. The other behavior that will precipitate an arrest is a "crime" (whether misdemeanor or felony). This is more significant for obvious reasons: physical arrest to jail, fingerprinted and photographed, DNA swab (potentially), FBI number and an entry into CCAP (Consolidated Court Automation Programs)! CCAP is a particularly thorny issue to resolve because it has a shelf-life longer than nuclear waste! Even if the charges are dropped or the individual is acquitted of all charges, the CCAP entry does not go away (Frankly, if left to prospective unscrupulous landlords or employers, abuse of CCAP can be a mechanism for discrimination). I would strongly urge complete avoidance of getting a RAP sheet (a record of arrests and/or prosecutions)!

Here are some examples of commonly used city ordinance violations that have been used at demonstrations where "cite-and-release" enforcement actions were taken:

City of Madison Ordinances -

Violation Fine Standing on Roadway $73.60 Person Obstructing Street, Sidewalk, Alley, Crosswalk $124.00 Failure to Yield to Vehicle $73.60 Walk & Wait Violation $73.60 Disorderly Conduct $439.00 Unlawful Trespass $439.00 Resisting/Obstructing Arrest $439.00 Person Making Unreasonable Noise (i.e. amplification, bullhorn, etc.) $187.00

Here are examples of some crimes that have been used when the violator's behavior is more egregious:

Misdemeanor Crimes –

Violation Consequence Disorderly Conduct Jail Criminal Damage to Property Jail Resisting/Obstructing Arrest Jail Battery Jail Battery to Police Officer Jail Arson Jail Interfering with Firefighting Jail Negligent Handling of Burning Material Jail

Again, the point of how MPD employs the Madison Method is to promote the First Amendment rights of assembly and free speech. It is seldom required for us to default to formal enforcement strategies provided that people are being mindful of other's rights and their property. Some of the activities that are protected under the First Amendment are as follows:

Protected Activities –

Holding Signs Leafleting Drumming, dancing, singing, chanting Marching Approaching people on the sidewalk with leaflets, newspapers, petitions, and solicitations for donations Setting up tables on public sidewalks for these purposes, so as long as the walk is not blocked

And now I have no doubt that people will ask about the future plans for Officer Matt Kenny. There are a number of conditions that must take place before considering his return to active duty. Since March 6th, Officer Kenny has been placed on administrative leave and taken off the streets. That status will continue until such time as an internal policy review is conducted, examining whether any of our procedures or protocols may have been violated during the course of the Robinson call. Our Professional Standards Unit conducts an independent investigation, which began some time ago, and this report is not expected to be completed for another week or so.

In closing, on the night of March 6th, I expressed my personal sense of loss to the grandmother and grandfather of Tony Robinson and subsequently met with other members of the family in the weeks that followed. As a father of two adult sons, I cannot begin to grasp at the magnitude of their loss. The difficulties that they have faced have been formidable and I hope that some measure of healing can begin.

Respectfully ~

Chief Koval