First Amendment Case Pending in Portage Co. Courtroom
By Brandi Makuski
One local resident claims his constitutional rights were violated after he was arrested for disorderly conduct and resisting an officer in 2014.
Officers reportedly had a difficult time taking Scott H. Wenger, 46 of Stevens Point, into custody after he created a disturbance at Art in the Park on Sept. 20, 2014. Police documents indicate multiple contacts with Wenger in the past, at least some stemming from third parties complaining Wenger took pictures of them without their permission.
Police encountered Wenger at Pfiffner Pioneer Park, where the annual Art in the Park is held. According to the criminal complaint, Wenger flagged down the officers, stating he wanted to file a complaint against a driver who nearly struck him with a vehicle.
When officers explained they would attempt to locate the driver using the vehicle description Wenger provided, he became offended and suggested the officers didn’t believe his story. He then produced a camera and began recording the officers, attempting to get them to “confess to not taking his complaint seriously”, according to the complaint.
Officers then returned to the police station to attempt locating the driver from Wenger’s complaint.
Police were called back to the park only a few minutes later after a caller reported Wenger was harassing someone at the park. Police walked through the crowd for several moments searching for Wenger, when they heard someone call out, “I’m right here officers”, and saw Wenger waving them over to his location.
Wenger was sitting on a bench next to congressional candidate Tony Kurtz, who was in town to campaign during the public event. When officers approached Wenger, he asked Kurtz to “stay and witness officers making up lies”.
When officers attempted to interview Wenger about the complaint they’d received, he refused to cooperate, again producing his camera and recording the exchange with officers. Instead of answering questions, Wenger repeatedly asked, “Am I being detained?” and yelled at one officer who attempted to lower the camera from in front of Wenger’s face.
Wenger began to yell even louder, again asking if he was being detained, according to the complaint, “presumably for the hundreds of bystanders in the park to hear”.
Officers told Wenger he was not being detained and was free to leave, but said they’d still like to ask questions about the harassment complaint. Wenger reportedly began to walk away, but then turned back towards the officers to continue recording, placing his camera in an officer’s face and yelling loudly.
At that time a large crowd had begun to notice, and officers determined Wenger was creating a disturbance. They then attempted to take him into custody for disorderly conduct.
Wenger resisted to such a degree officers weren’t able to restrain his hands in the same pair of handcuffs. Officers on either side of Wenger were eventually able to place one pair of handcuffs on each of his wrists, then cuff both together behind his back. At that time, Wenger “intentionally flopped” to the ground, according to the complaint.
Officers managed to get Wenger into the squad car by laying him down on the back seat. As they were searching him for weapons, Wenger suddenly became quite and polite. Believing he would now be cooperative, officers sat him upright.
But Wenger then sprang from the car and began shouting at the crowd, advising people to videotape what he called “police abuse” with their cell phones, before officers could successfully restrain him in the backseat.
Wenger contacted the City Times in 2015 alleging he was the victim of police harassment. During an interview with City Times staff he admitted to taking photos of adults and children at local parks. When asked his purpose behind taking the photos, and whether or not they were sold or displayed in any fashion, Wenger shrugged and said, “I can take pictures of whatever I like in public. It’s still a free country, isn’t it?”
When asked if he obtained permission from individuals before taking the photos, Wenger accused City Times staff of being “in cahoots” with the police and promptly left the office.
Wenger had been scheduled for trial last Sept., but his lawyer, Jared Redfield, instead filed a motion asking Judge Thomas Flugaur to dismiss the case, citing lack of probable cause and violation of constitutional rights.
In his motion brief filed Oct. 1, 2015, Redfield argues police unlawfully arrested Wenger, arguing his photography is protected by the First Amendment. Wenger’s Fourth Amendment rights were also violated, according to Redfield’s brief, when police confiscated his camera without a warrant before he was booked into the Portage Co. Jail.
“Furthermore, because [Wenger’s] conduct was legitimate, and constitutionally protected, the disorderly conduct charge is completely unwarranted,” Redfield’s brief reads in part.
Redfield’s office sent the brief, unsolicited, to the City Times office on Jan. 18. See Redfield’s brief in full here: Redfield’s Motion to Dismiss
Wenger was released on a $500 signature bond, and is currently under a court order to not possess a camera or video device in public while the case is pending.
He returns to court on Feb. 3, when a decision on the dismissal from Flugar is expected.