Former judge: Bar surveillance plan could be unconstitutional

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Posted: Jun 11, 2014 8:27 AM
Former judge: Bar surveillance plan could be unconstitutional

DAY IN COURT?: The Tavern League of Wisconsin is expected to file a lawsuit against Chippewa Falls if the Common Council passes an ordinance requiring cameras in all city bars.

By Adam Tobias | Wisconsin Reporter

CHIPPEWA FALLS, Wis. — Chippewa Falls officials could expose themselves to legal problems if they OK an ordinance forcing local tavern owners to install surveillance cameras, one legal expert says.

Janine Geske, a distinguished professor of law at Marquette University Law School and former state Supreme Court justice, told Wisconsin Reporter Tuesday a case certainly could be made that the proposed law, as written, is unconstitutional.

“I think there are grounds for that argument,” Geske said.

The ordinance, which has been requested by the city’s Police Department, also would require that bar owners turn over any footage to authorities without them first having to obtain a warrant or subpoena.

If bars owners don’t install cameras, they risk losing their licenses under the controversial proposal.

Geske, who served on the Wisconsin Supreme Court from 1993 to 1998, said a suing party would have the best chance at winning a lawsuit if they argue the proposed requirement is an undue burden and allows for property to be taken without due process.

Pete Madland, executive director of the Tavern League of Wisconsin, told Wisconsin Reporter last week he anticipates his agency will challenge the city’s decision if the ordinance is approved.

Jeff Scott Olson, a prominent Madison lawyer who specializes in civil rights and constitutional litigation, said he’d try to prove the proposed law violates the Fourth Amendment if a case was brought forward.

Olson said he doesn’t believe the Chippewa Falls Police Department would be justified in stationing an officer at every tavern in the city, which essentially would happen with law enforcement having full access to recordings. The proposal required recordings be kept by bars for 21 days.

“I kind of doubt that would pass muster under the Constitution,” Olson said.

But Chippewa Falls Police Chief Wendy Stelter insists that releasing tapes to police right away would ensure the footage is not altered and that law enforcement would be able to solve crimes more effectively and efficiently.

“The concern there is, what happens to that video footage while we’re waiting for that subpoena?” Stelter asked.

Stelter also said grocery and liquor stores in Chippewa Falls must follow similar regulations and police are not constantly at those establishments pulling recordings. Authorities would seek footage only if there is an active investigation, according to Stelter.

But Olson contends the language in the ordinance gives the Police Department too much power.

“It will be abused at some point,” Olson said. “It’s just a question of when and how.”

Olson also said he is worried that patrons fearing they’re always on camera could drive business out of town.

“If you’re on the borderline and you can go to Joe’s bar in the city limits or Timmy’s bar outside the city limits, you’re going to pick Timmy’s bar because it’s a little more relaxing for lots of reasons, one of them being you don’t have to worry about being constantly on video tape,” Olson said.

The ordinance calls for bars to have high-definition cameras monitoring in all sections open to the public, including entrances, exits and cash registers. The recordings must produce clear images that can identify suspects in an investigation.

Stelter said the Police Department got the idea for the ordinance when a sergeant  suggested crimes originating in bars could be solved faster if the taverns had working surveillance systems.

The proposed law is being considered by the city’s two-member Public Safety Committee, but a decision is not expected this month because Stelter still has to meet with local members of the tavern league.

Committee Chairman Mike Hanke told Wisconsin Reporter last week he probably would not approve the ordinance as it is written.

“The Constitution is there for a reason,” said Hanke, who served 22 years in the military. “I swore to uphold it and I never swore to stop.”

Bill Hicks, the other member of the safety panel, did not return numerous calls from Wisconsin Reporter seeking comment.

If the committee won’t commit to the measure as written, Stelter said she is willing to consider changes, like scaling back the areas that need to be under surveillance and only targeting problem bars.

“We want to go about this very carefully, and we want to make sure that people are as comfortable with it as they can be,” Stelter said. “We want to work with the taverns, not against them.”

Contact Adam Tobias at atobias@watchdog.org of follow him on Twitter @Scoop_Tobias