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Court tosses case for lack of evidence, rather than on First Amendment grounds
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Court tosses case for lack of evidence, rather than on First Amendment grounds

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Alexander Kostal

Alexander Kostal of the Wisconsin Public Defender's Office. 

RACINE — A man who was arrested after filming a meeting between a police officer and another person at a public park, and uploading the video to social media, had his case dismissed on Wednesday.

Bryan Lang, 36, is seen on the video telling his social media followers to “be careful” and then he called the person talking to the officer “a snitch.”

There is no law that prohibits people from filming the police. In fact, the courts have repeatedly upheld the right of the public to film the police on First Amendment grounds.

Instead, because the person in the video was reportedly threatened by someone for talking to the police, Lang was charged with witness intimidation.

Lang was in Racine County Circuit Court for a preliminary hearing on the charges of misdemeanor witness intimidation and felony bail jumping.

At the conclusion of the hearing, Commissioner Alice Rudebusch dismissed the charges.

However, she did not make a First Amendment determination. Instead, she ruled the Racine County District Attorney’s Office did not present evidence necessary to sustain the charge.

“As pled, we don’t have probable cause,” Rudebusch said.

Alexander Kostal of the Wisconsin Office of the Public Defender, said the details of the case made it pretty clear Lang’s was a First Amendment case.

“This case is an example of the importance of remembering the First Amendment protections the Constitution gives all Americans,” he said. “I think that Commissioner Rudebusch came to the right conclusion when she ordered the case dismissed.”

The case was dismissed without prejudice, so the DA’s Office could refile the charges.

Case history

According to the criminal complaint, on July 8 Lang used his phone to film a meeting between Investigator Don Nuttall of the Racine Police Department and another person. The meeting occurred in a public park, where there could be no expectation of privacy.

In the video, Lang identified Investigator Nuttall and showed the vehicle he was driving.

According to the criminal complaint, someone contacted the witness after seeing the video.

The complaint reads: “The witness was specifically told that based on the video, harm would come to them if the witness testified against a particular subject of Investigator Nuttall’s investigation.”

Protected free speech

In court on Wednesday, Kostal argued his client’s action in filming the investigator was protected free speech. Members of the public are allowed to film law enforcement officers in public parks or any other public spaces.

“There’s no crime,” he said. “There’s been no evidence to show that a crime has been committed here — certainly not intimidating a witness.”

While the defendant uploaded the video to his social media, he did not identify the witness, may not have known the witness, and did not tag them when the video was posted, Kostal said.

Further, Kostal noted the state provided no evidence the individual was actually a witness to a crime, or to what crime they were a witness.

Assistant District Attorney Jessica H. Lynott countered that as a result of Lang’s actions in uploading the video, a witness was threatened.

She pointed out Lang zoomed in on the face of the person talking to Nuttall, zoomed in on their car, and posted the video online.

“As a result of his own video, threats were made to that individual,” Lynott said.

Lynott attempted to argue that Nuttall also experienced suspicious activity because he believed someone had followed him out of the park, but Kostal countered there were no charges relating to Nuttall, so that information was irrelevant.

Court cases

The U.S. Supreme Court has not taken up the issue, but the lower courts have consistently ruled that the public has the right, on First Amendment grounds, to film police officers and other public officials going about their duties in public spaces.

One of the earliest related cases was Glik v. Cunniffee (2011), in which the U.S. Court of Appeals for the First Circuit ruled that citizens have the right to film public officials in public places doing their job.

Further, the court determined the public’s right of access to information is co-extensive with that of the press.

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