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Candid Camera Exposes Secrecy

The Wisconsin State Journal
January 01, 2004

Posted with permission of The Wisconsin State Journal.

Suzanne Shell learned the hard way that certain officials of Walworth County don't embrace open government.

Last March, Shell came to the Walworth County Courthouse in Elkhorn to do some filming for a documentary on child abuse investigations and prosecutions. Several hours later, she was in police custody, charged with obstructing an officer for videotaping in the courthouse hallways -- with permission. The Walworth County district attorney vigorously pursued the case, but in the end, the charge was dropped, an implicit acknowledgement that it was baseless all along.

How did this happen? And what can be done to ensure that something like this does not happen again?

A Colorado family justice advocate, Shell is investigating a case involving a Walworth County women who had her children taken away by county officials. When Shell arrived at the courthouse last March, she told a courthouse security officer that she wanted to gather background information for her documentary. The officer replied that it should not be a problem.

Shell, with her camera running, stopped at the DA's office and spoke briefly with the DA and sheriff. The sheriff didn't ask Shell to leave or stop filming. Shell then filmed in public areas for about 90 minutes, until a Walworth County sheriff's deputy tried to limit her right to film inside the courthouse. The deputy told Shell that she could videotape the building but not people because she hadn't asked their permission.

When Shell said she didn't need permission from everyone filmed because she was in a public area, the deputy replied that, as a security measure, he had the right to confiscate her tape "if I want to." The deputy gave Shell two choices: "You can leave the building now or I'm taking your tape." Shell responded, "Fine, I'll leave the building," and then asked for the deputy's name.

Instead, the deputy took Shell's camera and arrested her. She was jailed for an hour, then cited for "obstruction."

Shell's attorneys, myself included, later argued that there was no basis for the criminal charge. In response, the DA amended the charge from "obstructing an officer" to "disorderly conduct" but signaled plans to seek a conviction.

In late November, after receiving a voluminous brief outlining relevant case law, the DA's office dropped the charge, without apology. Even then, the DA was willing only to dismiss the charge "without prejudice," meaning it could resurrect the case later if it wished. Shell objected and a judge agreed to close the matter for good.

The right to film in public places is well-established. Individuals, especially public officials like sheriff's deputies, do not have any legitimate expectation of privacy in the hallways of a public courthouse. Shell was videotaping what anyone else in the public areas of the courthouse could already see.

Moreover, Shell had asked for, and received, permission to film. And when the deputy told her she needed to turn over her videotape or leave the building, she agreed to leave. Nonetheless, the deputy arrested and cited her before she could comply with his illegal command.

All in all, Shell's ordeal is a troubling tale. What happened to her shouldn't happen to any citizens seeking to exercise their legal rights. Elected officials, including district attorneys, should defend, not destroy, the openness of our public institutions.

"Your Right to Know" is a monthly column produced by the Wisconsin Freedom of Information Council, a media group devoted to protecting public access to meetings and records. Kendall Harrison is an attorney with Godfrey & Kahn in Madison, which represented Shell.

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