Acts of civil disobedience in the Kansas Capitol escalated throughout the session and according to one state Senator, Capitol Police encouraged more illegal protests by failing to uphold the law.

Medicaid expansion supporters first deployed civil disobedience as a tool for political advocacy by unfurling banners from the fifth-floor railing of the Capitol rotunda in late March. The banners said legislative leaders have “blood on their hands,” for not passing Medicaid expansion. Legislative rules require permits to fly banners in the Capitol building, which weren’t obtained. The banners were quickly removed, and initially, the people who hung them were banned from the building. Capitol Police later reversed that decision.

“I warned them in advance that the decision could cause repeated or future acts of civil disobedience,” said Sen. Eric Rucker, a Topeka Republican.

In a second act of civil disobedience in early May, expansion protesters dropped thousands of leaflets from the top floor of the Capitol. The postcard-sized papers of bloody handprints included photos of a handful of Senate and House Republicans. A Senate disruption last week that caused a work stoppage marked the third Medicaid expansion demonstration of the legislative session.

Rucker says law enforcement should have immediately arrested demonstrators who disrupted the Senate with shouts and songs from the gallery last week. According to Rucker, a former prosecutor, the protest was a misdemeanor.

“When the law enforcement officers, who are actually highway patrolmen and Capitol security, witnessed this disorderly conduct taking place in a lawful assembly, they had the power as certified law enforcement officers to make immediate arrests of the miscreants who were participating in the conduct,” Rucker said. “And they did not.”

Lieutenant Adam Winters, Capitol Police public information officer, said arrests are made at the discretion of officers. Nine protesters were removed from the Senate gallery and one was issued a citation.

“That’s called officer discretion,” Winters said. “We don’t have to arrest somebody outside of statutes that are put out that says that we ‘shall’ arrest. Everything else, we pretty much have officer discretion on whether we want to take them to jail or not or we can issue a citation.”

Instead of issuing citations or making arrests, Senate leadership staffers pressed law enforcement to clear and close the gallery, the area above the Senate floor where the public can watch proceedings.

Winters said with any civil disobedience, officers are concerned for the safety of those involved.

“As far as escalation, I don’t know what to say for that, but safety is always a paramount concern when it comes to issues like that,” Winters said.

Both Harrison Hems, the chief of staff for Senate President Susan Wagle, and Rucker say officers on the scene told them ‘higher ups’ had ordered police to stand down. Winters said he didn’t know of any such orders. The Governor’s office oversees the Kansas Highway Patrol and Capitol Police and is responsible for setting the rules for parts of the Capitol building.

Hems asked officers present why they weren’t making arrests, and he asked what he could do to help de-escalate the situation.

Police told Hems clearing the Senate floor would help. It’s an action Hems took to the chagrin of reporters recording the gallery demonstration from the floor of the Senate.

An attorney for the Kansas City Star and Wichita Eagle issued a letter to Senate leadership saying that the press’s floor eviction was a violation of the U.S. Constitution.

The attorney’s letter was “full of fluff,” according to Hems.

“They’re trying to keep it in the news so they can get clicks on their website,” he said. “It’s not getting the traction they were hoping for.”

When Hems asked members of the media to leave the Senate, he reminded reporters that being allowed on the floor is a privilege that can be revoked. Floor passes are issued at the pleasure of the Senate President. Several states, like Illinois and Alabama, don’t allow reporters to have access to the legislative floor during proceedings. Others, like Nevada and Wyoming, restrict reporters to a press room.

“My point is that the press could have simply covered the story from a closer angle by going upstairs into the gallery and interviewing the protesters and collecting video of the demonstration from the gallery itself,” Rucker said. “After all, law enforcement officers let this go on for 20 minutes without stopping the protest.”

The Star and Topeka Capital-Journal editorial boards published editorials complaining that Senate leadership’s actions during the protests were unacceptable.

Rucker called the Topeka editorial “an abomination.”

“Would the Capital-Journal also favor this type of disruption — one that stops the functioning of government–at local school district, city or county commission meetings on a regular basis?” Rucker asked. “What if demonstrators showed up inside the governor’s office and did the exact same thing? And if they think that is appropriate, how long should the protest be allowed to continue before it would be appropriate for law enforcement to step in and make arrests?”

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