Suzanne Shell, a Colorado resident, learned the hard way that certain officials of Walworth County, Wisconsin,do not embrace open government.
On March 27, 2003, Shell came to the Walworth County Courthouse in Elkhorn to do some filming for her documentary on child abuse investigations and prosecutions. Several hours later, she was in police custody, charged with "obstructing an officer" for doing nothing more than videotaping in the courthouse hallways, with permission. The district attorney's office of Walworth County vigorously pursued the case, causing Shell considerable anxiety and expense. 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 kids taken away by county officials. When she 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 by the district attorney's office, where she spoke briefly with the Walworth County district attorney and sheriff. The sheriff did not ask Shell to leave or stop filming.
Shell continued to film in the public areas of the courthouse. After she had been at the courthouse for about 90 minutes, a Walworth County sheriff's deputy approached her. A discussion ensued between the deputy and Shell regarding her right to film inside the courthouse. The deputy told Shell that she could videotape the building but that she was "not allowed to videotape people" because she had not asked their permission.
When Shell pointed out that she did not need permission from everyone filmed because she was in a public area, the deputy shifted gears and told her 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.
In response, the deputy grabbed Shell's camera, twisted her arm behind her back, pressed her against the wall, handcuffed her, and placed her under arrest. She was put in a holding cell for about an hour, then released after being issued a citation for "obstruction."
Shell's attorneys, myself included, sent a letter to the district attorney's office arguing that there was no basis for the criminal charge against her. In response, the district attorney amended the charge from "obstructing an officer" to "disorderly conduct." The DA's office gave every sign that it intended to seek a conviction in court.
In late November, after receiving a voluminous brief outlining relevant case law, Walworth County dropped the charge, without apology. And even then, the office was only willing to dismiss the charge "without prejudice," meaning it could resurrect the case at some point in the future if it wished. After Shell objected, the judge finally dismissed the case "with prejudice," bringing the matter to a close.
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 just 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 her and issued her a citation before she could comply with his unlawful command.
All in all, Suzanne Shell's ordeal is a troubling tale. What happened to her simply should not happen to citizens seeking to exercise their legal rights. Elected officials, including district attorneys, should defend, not destroy, the openness of our public institutions.
Shame on you Walworth County. Wisconsin deserves better.
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 LaFollette Godfrey & Kahn in Madison, which represented Shell in this matter.