Brown v. Kemp
| Decision Date | 10 December 2020 |
| Docket Number | 17-cv-549-wmc |
| Citation | 506 F.Supp.3d 649 |
| Parties | Joseph BROWN, Louis Weisberg, and Stephanie Losse, Plaintiffs, v. Jeffrey L. KEMP, Charles Simono, Mark Fruehauf, Angeline E. Winton, Kimberly Lawton, Kelly McKnight, Martha Milanowski, William Norine, Angela L. Beranek, Bruce R. Poquette, Matthew Tingstad, Michael Nieskes, Scott K. Walker, Brad D. Schimel, Cathy L. Stepp and Todd A. Schaller, all sued in their official capacities, Defendants. |
| Court | U.S. District Court — Western District of Wisconsin |
Jessica L. Farley, Joseph S. Goode, Mark M. Leitner, Meredith Janene Donaldson, Laffey, Leitner & Goode, LLC, Milwaukee, WI, Sarah Kathryn Hanneken, Animal Legal Defense Fund, Portland, OR, for Plaintiffs.
Anthony David Russomanno, Gabe Johnson, Maura FJ Whelan, State of Wisconsin Department of Justice, Madison, WI, for Defendants.
Plaintiffs Joseph Brown, Louis Weisberg, and Stephanie Losse challenge the constitutionality of an amendment to Wisconsin Statute § 29.083, which prohibits a person from interfering with or attempting to interfere with "activity associated with lawful hunting, fishing or trapping." More specifically, plaintiffs claim that after being amended in 2015 to include two or more acts of maintaining a "visual proximity" to, "approaching," or creating visual or audio of someone engaged in those activities, this prohibition is now overbroad, vague and chills lawful expression in violation of the First Amendment. Before the court are the parties’ cross motions for summary judgment. For the reasons that follow, the court will grant defendants’ motion for summary judgment, finding that: (1) plaintiffs lack standing to bring an as-applied challenge; and (2) plaintiffs’ facial challenges fail as a matter of law.
Plaintiffs Joseph Brown, Louis Weisberg and Stephanie Losse are Wisconsin residents who have monitored and wish to continue monitoring Wisconsin hunting activity through visual observation, as well as photographic and video documentation. Moreover, plaintiffs plan to use information and imagery gathered in this way to educate the public about the nature of hunting in Wisconsin, particularly wolf hunting.
Plaintiff Joseph Brown is an Assistant Professor at Marquette University in Milwaukee, Wisconsin, who creates documentary films, including films that discuss the pros and cons of Wisconsin wolf hunting. Some of Brown's work is done in affiliation with "Wolf Patrol," an organization that seeks to monitor compliance with hunting and trapping laws and to document hunting activity for public dissemination. Plaintiff Louis Weisberg is the Publisher and Editor-in-Chief of the Wisconsin Gazette , a newspaper based in Milwaukee. Through his work at the Gazette , Mr. Weisberg has published articles about hunting in Wisconsin, as well as advocated on behalf of the wolf population. To gather information for his publications, Weisberg sends individuals to hunting grounds to observe and take photographs. Finally, plaintiff Stephanie Losse is an environmental and animal rights advocate who volunteers with Wolf Patrol.
Defendants are or were employees of the state of Wisconsin, all sued in their official capacity, including District Attorneys Jeffrey L. Kemp (Polk County), Charles Simono (Forest County), Mark Fruehauf (Douglas County), Angeline E. Winton (Washburn County), Kimberly Lawton (Bayfield County), Kelly McKnight (Ashland County), Martha Milanowski (Vilas County), William Norine (Burnett County), Angela L. Beranek (Barron County), Bruce R. Poquette (Sawyer County), Matthew Tingstad (Iron County), and Michael E. Nieskes (St. Croix County). The other defendants are former Wisconsin officials: then Governor Scott K. Walker, then Attorney General Brad D. Schimel, then Wisconsin Department of Natural Resources ("DNR") Secretary Cathy L. Stepp and then DNR Chief Warden Todd A. Schaller.
In 1990, the Wisconsin legislature enacted Wisconsin Statute § 29.223 (1989-90) (later renumbered as § 29.083 ) in response to ongoing conflicts between non-tribal individuals attempting to prevent members of the Chippewa tribes of Wisconsin from exercising their treaty rights to hunt and fish. (Defs.’ PFOFs (dkt. #21) ¶¶ 28-30.) This so-called "hunter harassment law" was intended to enable wardens to deal more effectively with interference in lawful hunting or fishing activities. (Id. ¶¶ 31-32.) The original hunter harassment law prohibited interference or attempted interference in "lawful hunting, fishing or trapping with the intent to prevent the taking of a wild animal" by directly harassing animals, impeding or obstructing persons engaged in lawful hunting, fishing, or trapping (or associated activities), or disturbing property of persons engaged in the same. 1989 Wisconsin Act 190 (1990); Wis. Stat. § 29.223(2)(a). The law created fines for violations, but in addition to enforcement by DNR and other law enforcement officials, the statute provided a civil action for injunctive relief and/or damages by a "person who is adversely affected by, or who reasonably may be expected to be adversely affected by conduct that in violation of sub. (2)(a)." 1989 Wisconsin Act 190 (1990); Wis. Stat. § 29.223(4)(a) ; Wis. Stat. § 29.99(11r)(a).
In 1991, the state cited three individuals for interfering with Chippewa tribal members’ spearfishing. (Defs.’ PFOFs (dkt. #21) ¶ 36.) In that case, State v. Bagley , 164 Wis. 2d 255, 474 N.W.2d 761 (Ct. App. 1991), the Wisconsin Court of Appeals rejected the Bagley party's claim that the hunter harassment law was unconstitutionally overbroad and vague. The court construed the words "interfere," "obstruct" and "impede" to mean that the statute was limited to physical interference; it further held that this construction, along with the affirmative defense of free speech, prevented the statute from reaching protected speech. Bagley , 164 Wis. 2d at 263-65, 474 N.W.2d 761. The court also held that the statute was not unconstitutionally vague because the defendants had notice of the prohibited conduct. Id. at 265-66, 474 N.W.2d 761. Finally, the court explained that although what constituted preparatory acts could not be precisely defined, it presented a question of fact because of the great variety of acts that can be involved in preparation for hunting or fishing, "depending on the type or manner of hunting or fishing involved." Id. at 267, 474 N.W.2d 761.
Since Bagley , the law has been applied regularly to conflicts between hunters, between landowners and hunters, and between landowners and fisherman. (Defs.’ PFOFs (dkt. #21) ¶ 42.) Common examples of interactions include individuals or groups "actively trying to prevent another individual or group from taking game or fish," landowners "honking car horns, throwing rocks, or discharging firearms to prevent the taking of fish or game, or to dissuade" people from hunting or fishing in the area, and non-hunters destroying "lawfully placed bait." (Id. ¶¶ 43-46.)
After the state began permitting limited wolf hunting in 2012, advocates against that hunting began "monitoring" hunters, including photographing, filming, and following hunters, and blocking trails. On at least one occasion, wolf hunters were followed home and photographs of their vehicles and license plates were posted online, resulting in threats to the hunters and their property. (Id. ¶¶ 63-71.) These activities resulted in increased confrontations between wolf hunters and "monitors," as well as calls to law enforcement asserting violations of the hunter harassment law. (Id. ¶¶ 73-75.) During one incident in particular, in July 2015 wolf hunters in Polk County called the Sheriff's Department to report that plaintiff Losse and other individuals associated with the Wolf Patrol were harassing hunters by filming and videotaping them. (Id. ¶ 77.) The Sheriff's Department informed the Wolf Patrol that they would be cited for their conduct, although no individuals were ever actually cited or prosecuted related to the incident. (Id. ¶¶ 78-80.)
In October 2015, the Wisconsin Legislature began reviewing proposed amendments to bolster the hunter harassment law.2 (Id. ¶ 82.) Modeled after an anti-stalking statute, the main provision to be added (subsection 29.083(2)(a)7) prohibited "engaging in a series of 2 or more acts ... that are intended to impede or obstruct a person who is engaged in lawful hunting, fishing, or trapping, or an activity associated with lawful hunting, fishing, or trapping." (Id. ¶ 84.) The specific prohibited acts include:
(Id. ) The amendment further expanded the definition of "activity associated with lawful hunting, fishing, or trapping" to include "scouting, target shooting, dog training, animal baiting or feeding." 2015 Wisconsin Act 346, Section 1 (2016). Finally, the amended prohibitions include using a drone for the activities listed in 7.a. to c. (Id. ) To address concerns that the proposed amendment may prohibit activities not intended to interfere with hunting activity, the Legislature also added a requirement of intent. (Id. ¶¶ 85-89.)
Both the original and amended versions of § 29.083 also contain the following affirmative defense:
(3m) Affirmative defense. It is an affirmative defense to the prosecution for violation of this section if the defendant's conduct is protected by his or her right to freedom of speech under the constitution of this state or of the United States.
Wis. Stat. § 29.083(3m). The amendment ultimately passed and became effective on April 4,...
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... ... Anthony List , 573 ... U.S. at 159 (quoting Babbitt v. Farm Workers , 442 ... U.S. 289, 298 (1979)); see also Brown v. Kemp , 506 ... F.Supp.3d 649, 656 (W.D. Wis. 2020) (citing same) ... Although ... the “plaintiff's fear of ... ...