After being chased off the UW-Madison campus and then up State Street by police, protesters seemed content to head home shortly before 2 a.m. on Aug. 26. Fires had been set on University Avenue and several storefronts had been smashed earlier in the evening. But unlike other nights of unrest in downtown Madison, there weren’t major confrontations between protesters and law enforcement.
Police had warned that tear gas and “less lethal” foam-projectiles would be used if the protesters did not disperse. But on this night of protest, sparked by the police shooting of Jacob Blake in Kenosha, none of those crowd control methods were used. That is, until 1:30 a.m., when a Dane County Sheriff’s deputy shot a tear gas canister outside the Madison Concourse Hotel.
Sheriff Dave Mahoney told Isthmus on Aug. 27 that the noxious gas was deployed at the intersection of West Dayton and North Carroll streets — without authorization by Madison police command staff — because of an exigent threat to the safety of his deputies.
“When there was a rock or a brick, some large heavy object, that was thrown in their direction, one of the deputies in the special events team fired a gas round,” Mahoney told Isthmus. “Since we were there in a support role, assisting the city of Madison, normal protocol would have been to ask for guidance from the command post. But nobody denies — and I mean our team and Madison police — this response was justified given the circumstances.”
But city surveillance camera footage of the incident, obtained by Isthmus, shows protesters didn’t hurl any heavy objects at deputies in riot gear. In fact, protesters were running in the opposite direction and not close to law enforcement. A window at the Madison Concourse Hotel, about 100 feet from the deputies, was broken just before a tear gas canister was fired, but the video captures the crowd clearly leaving the area. The vast majority of the 50 or so protesters dispersed just minutes later.
After Isthmus sent the sheriff the surveillance video, Mahoney replied there had been a “communication breakdown.” Projectiles were thrown at law enforcement near the courthouse around the same time — but not on Dayton Street. Tear gas was not used during the incident by the courthouse.
“The information I gave you [on Aug. 27] was based on what I was told at the time,” Mahoney tells Isthmus Sept. 17. “Actively watching windows breaking, there should have been communication with the command post where a decision is made on what level of force should be used. So that’s what has been discussed with our folks. The failure here was the lack of communication with command staff.”
Isthmus witnessed the deployment of tear gas while live streaming the police response to some protesters causing property damage after hours of peaceful demonstrations downtown Aug. 25. It’s not clear whether the use of force would have ever been made public had Isthmus and the Wisconsin State Journal’s Emily Hamer not been eyewitnesses.
After this reporter tweeted at 2:04 a.m. that tear gas was used, a member of the mayor’s staff — in an effort to ensure the public was being given accurate information — said she was in touch with Madison police command staff and that tear gas hadn’t been deployed. The incident report posted the next day doesn’t mention that projectiles were thrown at officers or that chemical agents were used to disperse crowds at any point on Aug. 25 or the early hours of Aug. 26.
Mahoney says he doesn’t know if Madison command staff would have authorized the use of tear gas against protesters on Dayton Street had deputies followed protocol and asked for permission.
“I fully support if [deputies] are taking active projectiles, that they act immediately. Without question,” says Mahoney on Sept. 17. “In that circumstance, deploying immediately is appropriate from a public safety standpoint.”
Outside law enforcement agencies — including the Sheriff’s Office, UW-Madison Police Department, the Capitol Police, and the Wisconsin National Guard — have assisted the Madison Police Department during numerous protests downtown this summer, sparked first by the killing of George Floyd by a Minneapolis police officer in late May. Acting Madison Police Chief Vic Wahl says his department led these operations from a strategic command post, where representatives from assisting agencies are present.
“If we are going to make a strategic command post decision where we’re going to give an order to disperse and we’re going to deploy chemical agents into a crowd if they don’t cooperate — that’s typically a command post decision and is authorized,” says Wahl, noting that some situations do require officers to act immediately. “When [tear gas was used at Dayton and Carroll] there was a lot going on and a lot of radio traffic. Likely there was never an opportunity to communicate. Just never made it up the line. I think it was just an oversight of communication.”
A number of city alders were critical of the police department’s response to protesters — in which sheriff deputies participated — during the first weekend of protests in late May following the death of Floyd. In a June 1 letter, seven alders called the department’s heavy use of tear gas, pepper spray and foam projectiles “a gross and unnecessary display of force that deepens community divide and mistrust of the city and other bodies of government.”
Wahl says the department continues to adapt its tactics.
“We’ve tried to avoid situations where we’re going to become the focal point and been really strategic about when we’re going to intervene and when we’re not going to intervene,” says Wahl. “We want to avoid standoffs where we are forming a line and drawing a line in the sand because that has some predictable outcomes.”
On Sept. 16, the city’s Public Safety Review Committee recommended banning Madison police from ever using tear gas. If the proposal is approved by the city council as written, the police department would have until Jan. 5 to study alternatives and would be prohibited from using the chemical agent after Feb. 2.
Earlier this month, the council overwhelmingly approved historic measures to oversee the Madison Police Department. A new civilian oversight board and independent police monitor are being created to work together to provide a new check on city law enforcement.
Dane County Board Supervisor Heidi Wegleitner says it’s time for the county to enact similar measures.
“The Dane County Sheriff’s Office needs community oversight just like the Madison Police Department does. Incidents like this underscore why,” says Wegleitner. “Right now, I don’t think there is much transparency at all in terms of complaints related to excessive force or violation policies.”
Wegleitner hopes the sheriff will work with the county board to create a civilian oversight board — similar to the one just approved in Madison — this year.
In his Aug. 27 interview with Isthmus, Mahoney said deputies had used tear gas when recent downtown protests became destructive but didn’t know how many times. He thought this was the first time tear gas had been used by his department since the Vietnam War era.
“I don’t want to even call some of these people protesters because there’s clearly different groups. There are the peaceful protesters who are charged with a message but are not violent and don’t physically confront law enforcement,” said Mahoney. “And then there are two other groups. One is very confrontational, more prone to violence. And then there’s a group that’s clearly anarchist criminals who are out there for one purpose: to intentionally cause destruction and injury.”
Mahoney says he’s already discussed the incident as well as expectations with the deputy who fired the tear gas round on Dayton Street and the special event team leader.
“This wasn’t our incident, we were there to support the city,” says Mahoney. “So communicating what we are seeing on the streets to [Madison police] should guide decisions on what level of force is being used on their behalf.”