Wisconsin is one of many states to protect cops through a bill of rights, but it excludes state-employed police. Some lawmakers want to change that, while critics worry they are receiving special treatment.

By Annie Pulley, THE BADGER PROJECT

Most police in Wisconsin are protected by their own bill of rights. 

The roughly 600-word Law Enforcement Officers’ Bill of Rights legally establishes cops’ off-duty speech rights and provides guidelines for how they can be investigated.

These rights apply to officers who work for villages, towns, cities and counties in Wisconsin but not by the state. A bill supported by more than a dozen Republican legislators between the Wisconsin Assembly and Senate is trying to expand the protections.

“This disparity undermines the principles of equity and fairness that are central to the mission of law enforcement,” said state Sen. Jesse James (R-Thorp) during a state Senate committee hearing in September.

James, an officer for Cadott Police Department in Chippewa County, testified at the hearing and explained that the bill of rights was first enacted in 1979 to protect Milwaukee police officers before the state Legislature expanded it to all municipalities and counties in Wisconsin in 1993. State-employed officers were excluded.

About 24 other states have police bills of rights, according to the National Conference of State Legislatures. And nearly all states regulate how officers can be investigated or disciplined.

In Wisconsin, officers cannot be prohibited from engaging in or refusing to engage in off-duty political activity. If officers are the subject of an investigation that could lead to discipline or criminal charges, they must know why they’re being investigated before being questioned, and they have a right to be represented by someone of their choosing. Localities can’t prohibit officers from being candidates for public office either.

“It really is a fundamental issue of due process,” said Jim Palmer, the executive director of the Wisconsin Professional Police Association, a major police union and active lobbyist. “It’s probably long overdue for this common-sense extension.”

The bill is also supported by the Wisconsin State Lodge Fraternal Order of Police, the Wisconsin Chiefs of Police Association and the Wisconsin Troopers Association. No groups have officially registered against it. 

A police group speaking in support of the bill explained that state troopers, DNR conservation wardens, University of Wisconsin officers, state Capitol police, and special agents for the departments of justice and revenue would be protected. 

Nathaniel Cade, a Milwaukee attorney who has represented those affected by police shootings or deaths, said the bill doesn’t adequately consider whether state law or department policy has the final say.

“I don’t have a problem” with officers engaging in political activity, Milwaukee attorney Nathaniel Cade said. “I don’t think they sign away their rights.” 

No law enforcement officer may be prohibited from engaging in political activity when not on duty or not otherwise acting in an official capacity, or be denied the right to refrain from engaging in political activity.

Wisconsin Law Enforcement Officers’ Bill of Rights, section 164.015

But Cade questioned which standard would apply when officers privately post about political topics on social media. Would the police bill of rights greenlight that activity or could department-level policy limit it?  

Palmer said departments can impose content-neutral social media policies without infringing on the First Amendment or the police bill of rights. Officers can justifiably be disciplined for off-duty behavior that affects the reputation of their agency; that doesn’t conflict with the police bill of rights, Palmer said. 

An officer should have the right to representation, especially if criminal charges are being considered, Cade said. But what if a state trooper involved in a shooting uses the bill of rights to claim he can’t be recorded when he gives his statement? 

“They have a right to know what they’re being investigated for, absolutely,” Cade said. “But the next step becomes: by applying this and saying this applies to all officers in the state, what are the ramifications?”

The police bill of rights already protects a significant number of officers, Palmer said. Those protections haven’t impaired the ability of police agencies to conduct “effective internal interviews,” he said.

Broadly, though, the bill makes sense, Cade said, but “Why isn’t this open to all public employees in the State of Wisconsin as opposed to just law enforcement officers? Why are they so special?”

Police officers wield significant authority in society, Palmer explained. And with that, they are the subject of public scrutiny and investigation more often than other public employees.

“The Law Enforcement Officers’ Bill of Rights does not produce preferential outcomes. It does not shield officers from discipline or termination,” Palmer said. “It affords officers basic procedural guarantees to ensure fairness and protect their constitutional rights.” 

The effort faces a friendly, Republican majority in both chambers but needs the signature of Democratic Gov. Tony Evers to become law.

The Badger Project is a nonpartisan, citizen-supported journalism nonprofit in Wisconsin.

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