Posner Ridicules Right of Citizens To Film Police in Seventh Circuit Oral Argument

Judge Richard A. Posner is a legal icon who has had more impact on the development of the law. As the father of the Law and Economics movement, Posner’s writings are featured heavily in my classes as well as other classes around the country. While I disagree with him, I have tremendous respect for his scholarship and jurisprudence. However, a recent oral argument revealed a less flattering side of the former University of Chicago professor. Faced with an attorney from  the American Civil Liberties Union in a case involving the right of citizens to film police in public, Posner cut him off after 14 words and spoke derisively of the right of citizens and groups to engage in such protected conduct.

At issue was the constitutionality of the Illinois wiretapping law, which makes it illegal to record someone without his consent even when filming public acts like arrests in public. Poser was one of three judges and interrupted the ACLU after just 14 words, stating “Yeah, I know,. But I’m not interested, really, in what you want to do with these recordings of peoples’ encounters with the police.” Really? That happened to go to first amendment value of the proscribed conduct.

Posner continued: “Once all this stuff can be recorded, there’s going to be a lot more of this snooping around by reporters and bloggers . . . I’m always suspicious when the civil liberties people start telling the police how to do their business.” Unbelievable. All these videos do is make a record of police conduct. The conduct is either abusive or nonabusive. Not filming an abusive arrest does little beyond protecting unlawful conduct. Otherwise the film vindicates the conduct of officers.

Illinois legislators and prosecutors have taken on the lead in fighting the right of citizens to observe and record the conduct of police. Posner’s view is thankfully not shared by other judges. Last month, the United States Court of Appeals for the First Circuit handed down a the opinion below in the case of Simon Glik, a lawyer who was arrested for filming officers in what he viewed as an excessive use of force. Here is the description of the court:

As he was walking past the Boston Common on the evening of October 1, 2007, Simon Glik caught sight of three police officers — the individual defendants here — arresting a young man. Glik heard another bystander say something to the effect of, “You are hurting him, stop.” Concerned that the officers were employing excessive force to effect the arrest, Glik stopped roughly ten feet away and began recording video footage of the arrest on his cell phone.
After placing the suspect in handcuffs, one of the officers turned to Glik and said, “I think you have taken enough pictures.” Glik replied, “I am recording this. I saw you punch him.” An officer then approached Glik and asked if Glik’s cell phone recorded audio. When Glik affirmed that he was recording audio, the officer placed him in handcuffs, arresting him for, inter alia, unlawful audio recording in violation of Massachusetts’s wiretap statute. Glik was taken to the South Boston police station. In the course of booking, the police confiscated Glik’s cell phone and a computer flash drive and held them as evidence.

He was then charged with violation of the wiretap statute, Mass. Gen. Laws ch. 272, § 99(C)(1), disturbing the peace, id. ch. 272, § 53(b), and aiding in the escape of a prisoner. The panel showed a far more balanced view than articulated by Posner in cutting off the ACLU’s lawyer in Illinois:

In our society, police officers are expected to endure significant burdens caused by citizens’ exercise of their First Amendment rights. See City of Houston v. Hill, 482 U.S. 451, 461 (1987) (“[T]he First Amendment protects a significant amount of verbal criticism and challenge directed at police officers.”). Indeed, “[t]he freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state.” Id. at 462-63. The same restraint demanded of law enforcement officers in the face of “provocative and challenging” speech, id. at 461 (quoting Terminiello v. Chicago, 337 U.S. 1, 4 (1949)), must be expected when they are merely the subject of videotaping that memorializes, without impairing, their work in public spaces.

What astonishes me is that government officials are pushing this effort to block this basic right of citizens and perhaps the single most important form of evidence against police abuse. Absent such film, these allegations are often dismissed as unsupported by the citizens and denied by the officers.

As someone who admires Posner’s contributions to the law, it is disappointing to read such biased and dismissive comments in a free speech case. For police wondering “who will rid us of these meddling citizens?,” they appear to have one jurist in Illinois not just ready but eager to step forward.

First Circuit opinion: Glik

69 thoughts on “Posner Ridicules Right of Citizens To Film Police in Seventh Circuit Oral Argument

  1. Talk about “Overcoming Law” …

    I keep trying to find an excuse for his actions and failing. This is a major disappointment.

  2. You have to be kidding me right….If I recall he had a lot to do with the Anti-Trust laws….But that was a long time ago for me to recall.

  3. Efficient Breach of Contract?

    Not for nothing, but wouldn’t the violation of the ‘the Illinois wiretapping law, which makes it illegal to record someone without his consent even when filming public acts like arrests in public’ constitute an efficient breach of contract furthering First Amendment freedoms and justice overall?

    Isn’t Posner contradicting his own principles here?

  4. Maybe it is time for Posner to retire. I would hope he would have a different opinion f he was being abused by police officers and no one stepped in to help or to address the police misconduct!

  5. So, if I was filming my families vacation at Disneyland & just happened to get other people in the shot (How could such a thing happen?!?) I would be breaking the law, is that correct?

    If I had a security camera on my office building & it caught scenes of people passing by the building I would be braking the law, right?

    This sounds more like anal arguments than oral as he must be talking out is . . .

  6. Just to be clear (besides misspelling the second ‘breaking) I get the audio feature but it is the filming they are objecting to & several municipalities have attempted to ban unauthorized filming of the police.

  7. AY – I think, unless I consent then any security camera is unlawful. Almost makes me wish I were a lawyer, I see big bucks in the criminal defense business :)

  8. Frankly,

    I think because that is a proper government function…and paid for by Homeland Security Dollars….I am sure that they would be upheld. I think I read someplace….that the HSA headquarters is going to be bigger than the pentagon….Makes me wish I was a government contractor….I have some hammers to sell….Maybe NASA needs more toilet seats…

  9. “What astonishes me is that government officials are pushing this effort to block this basic right of citizens and perhaps the single most important form of evidence against police abuse. Absent such film, these allegations are often dismissed as unsupported by the citizens and denied by the officers.”

    It horrifies me, but doesn’t surprise me at all. Way back when the big issue was “Law and Order” (meaning stop those “coloreds”), the trend of police excess was being imprinted with license to “save” us from the ills of society. The trend has gone steadily downward since those days and many constitutional defenders in their relative youths, have become less tolerant in their dotage. I can tell you from my own experience of aging, that flexibility of mind needs constant effort, lest rigidity of fear sets in.

  10. “Once all this stuff can be recorded, there’s going to be a lot more of this snooping around by reporters and bloggers”

    WWTFD? *

    * What Would The Founders Do?

  11. I am wondering what Posner has to fear….There is a moment to allow Public Access TV inside the Judges Chambers when they are deciding a case….Hence…anytime a quorum meets….Then this would possibly open up the court to FOIA which at the present time they are exempted….

    I do not know about you all but, this reminds me of a type of star chamber…

  12. Instead of trying push through conceal and carry legislation here in Illinois, maybe we should be pushing through conceal and carry video recorder legislation. Packing takes on a whole new meaning.
    AY,
    Yes, star chamber does come to mind. A good movie too!

  13. If it is legal for me to witness and report on an event how can it be illegal for me to provide evidence to support my claims?

  14. He’s 72, which in my circles is young. But some of us are also 72 years crazy. Me, I’m still a journeyman Crazy Old Fart.

  15. Skimming through the Wikipedia entry for Posner (which is an imperfect reference, of course) I get the impression that while he may be brilliant when discussing the legal issues of various business entities interacting with each other, when it comes to regular “little people” he’s just a plain old, right-wing putz. The term “pragmatism” shows up a lot – sometimes that’s a great lens through which to observe complex issues, but sometimes it’s just like “natural law” – a way for the speaker to project his own biases, desires and presuppositions in justifying his positions.

    There is the following quote in the article as a position Posner has taken, “that the rule of law is an accidental and dispensable element of legal ideology” (That’s totally out of context, so maybe he didn’t actually mean what is said there?) Also, the article represents that Posner supports the use of torture where it would be useful. It seems that he not only would allow the use of torture, but views its use as inevitable in a “ticking time bomb” fantasy, er, hypothetical scenario.

    While these items may be inaccurate representations of his actual (more nuanced?) positions on these subjects, if they are roughly accurate, then he seems to, at least on issues like civil liberties and the conduct of police, be fundamentally a sort of low-brow, law-and-order, black-and-white thinker.

    Without really knowing more about his ideas about business/econ law, I’m wondering if his basic approach is something along the lines of “might makes right.” How does he respond to the multi-millennia old question, “Who watches the watchmen?” Might he essentially say, “Well, if the populace can’t (politically and/or physically) beat the police into submission, then the populace should shut up and take their beatings”?

    (Given that it appears he worked with Bork to reduce anti-trust regulation in the US in the lead-up to the economic collapse, and we’ve seen how that has worked out in the real economy, maybe he isn’t terribly brilliant at business law, either.)

    Also, given the high probability that the Illinois law will be argued in front of the Seventh Circuit Court, isn’t it a bad idea for him to be commenting like this about the issues involved?

  16. This attitude is nothing new. This is exactly why the Black Panther Party caught so much hell from law enforcement. Their first order of business was to “police the police” due to the high incidence of police brutality and murder that occurred in Black communities all over the country. Huey P Newton, Bobby Seal and others would stand within legal distance (with a law book in hand, mind you) and observe the arrest. They caught hell’s fury for it too. It looks like same crap, different day. Welcome to America ladies and gents–the police state capitol of the “free” world

  17. I realise Posner’s a very intelligent man, but I remember reading his “efficient breach” clap-trap in law school and the logic of it all was sub-mental. If someone could make more money by doing so, they could, without penalty, get out of any contract. This, in theory, will make the economy more efficient. He never addresses the effect on the economy of contracts not being worth the paper they’re printed on and the inability of anyone to plan any economic enterprise of a complex nature.

    I read his comments last week in the Chicago Sun-Times on the wire-tap/ eavesdropping statute. He argued that gang-bangers will start recording people talking to the police and use the fact that the poeple talking to the police were informants as a legal defense to the recording. I read this ten times and had several other lawyers read it, and no one figure out what the hell he was talking about.

    As for allowing the police to operate unfettered it’s nonsense. The ACLU only wants permission to record officers in public carrying out their offcial duty. There could certainly be an eception for persons suspected to be under cover officers by the recorder.

    His concern for police efficiency reminds me a great deal of the suspect logic in his “efficient breach” reasoning. In one particular instance his reasoning may be sound (for one party). But in the aggragate everyone just looses faith in the system. Both the police and the genral public increasingly view each other as enemies and chaos and/or facism insues.

    We now have pod cameras all over Chicago. The city destroys the recordings in 1 to 3 days, unless they want it. There is virtually no time to subpeona this things on behalf a defendant. There’s no reason an officer shouldn’t want an audio and video recording of his actions on the street if he is doing his job properly/legally. Posner sees to have a habit loosing the forrest for the trees in his reasoning. Next he’ll suggest one should be allowed to speed up the shoulder of the highway during rush hour if it will get them home faster. I take it back; Posner’s an idiot.

    p.s. There is a subsection of the the Illinois statute which allows for one-party consent when they recording party believes he likely to be a witness to evidence of a criminal act. But the recorder or an immediate family memebr has to be the potential victim!!!

    http://www.ilga.gov/legislation/ilcs/ilcs4.asp?DocName=072000050HArt.+14&ActID=1876&ChapterID=53&SeqStart=30900000&SeqEnd=32700000

    So record away if you or youe family are being beaten by the police; you’re neighbors all on his own.

  18. just put a dam camera on every helmut….straight cops won’t mind, assh*les will be subdued, cell phone recordings will not be an issue.

    and stevie seagall will have to tone down his tank drivin, chicken coop flattening, tuff guy t.v. show……

  19. From main posting: “As someone who admires Posner’s contributions to the law, it is disappointing to read such biased and dismissive comments in a free speech case.”
    ————-

    Maybe judges need a sign in their chambers that echos that old cliche’ about the artistic and economic value of actors: “You’re only as good as your last movie”. Just substitute “verdict” for “movie”- it works.

  20. Posner’s one of those keen minds that instinctively clings to order. It’s a common flaw and one with particular appeal to middle aged white males with assets. Police, good; journalist, concerned citizens, bad is the usual matrix. It flows right along with his law as buttress for economics theory and one reason I have no use for the school of thought.

    While scholarship and jurisprudence are certainly important considerations when evaluating Judge Posner, I find compassion for people of lesser station and steadfastness to the rights articulated in the Constitution more important. Keen minds breed a certain arrogance that leads to monsters even they cannot control. “You are my creator, but I am your master. Obey!” Wasn’t that the point Mary Shelly was making?

  21. This is a case where the law will never catch up with technology. Like it or not, cameras are everywhere. Whether you’re a police officer, a celebrity, or just a regular guy, you should always act as if people are watching you, because they probably are.

  22. “Posner’s one of those keen minds that instinctively clings to order. It’s a common flaw and one with particular appeal to middle aged white males with assets.”

    Mespo,

    Perfect insight.

  23. John Lally1, September 20, 2011 at 9:10 am

    This is a case where the law will never catch up with technology. Like it or not, cameras are everywhere. Whether you’re a police officer, a celebrity, or just a regular guy, you should always act as if people are watching you, because they probably are.
    —————————–
    let’s hope they do catch up, quickly!

    http://www.npr.org/blogs/thetwo-way/2011/09/20/140626752/next-step-for-drones-may-be-automated-killing?ft=1&f=1001

  24. ” Posner theorized there were possible dangers in changing the law with regard to gang members.

    “The gangs who are interested in monitoring each other will rejoice in your case,” Posner told the ACLU.

    He said gang members who want to snoop on each other could start secretly recording conversations and say they’re protected because they were taping suspected police informants. ” Chicago Sun-Times (9/13/11)

    I still can’t wrap my head around this. Appellate Justices need to take a day or two every year to stroll through the trial courts. The idea that a gang-banger is going to admit to an on-going criminal conspiracy (taping his drug dealing competitors) to defend against an eavesdropping case is absurd. I still can’t understand the “theorized” affirmative defense of taping “police informants” . My only guess is that Posner might have just read a Walter Maksym brief immediately before hearing arguements on this case.

    The gang bangers I know, the “Hey man, can’t you do one dem Motions to Squash?” kind of gang bangers, are no doubt waiting for the written opinion before they make up their minds on the issue.

  25. “I still can’t wrap my head around this. Appellate Justices need to take a day or two every year to stroll through the trial courts. The idea that a gang-banger is going to admit to an on-going criminal conspiracy (taping his drug dealing competitors) to defend against an eavesdropping case is absurd.”

    Seamus,

    Methinks Judge Posner watches too much TV and commits the worse mistake of believing what he sees on the various crime shows.

  26. Cops and the like are forever sneering at citizens who don’t like the invasive surveillance and spying going on around us. And they often insult us with the insipid comment “If you are not doing anything wrong you don’t have anything to worry about”.

    See what babies and thugs they are when the tables are turned? They don’t even go by their own standard.

  27. Why would you “admire Posner’s contributions to the law”? Overlaying it with fallacious radical right wing economic dogma has done it, and all under it, a grave disservice.

  28. “Cops and the like are forever sneering at citizens who don’t like the invasive surveillance and spying going on around us. And they often insult us with the insipid comment “If you are not doing anything wrong you don’t have anything to worry about”.

    Tootie,

    Something we agree about.

  29. It’s easy to imagine Posner in 1770 in the robes of the British Judiciary convicting the colonist who made a video recording of the Boston Massacre.

  30. seamus
    1, September 20, 2011 at 12:36 pm
    ….
    He said gang members who want to snoop on each other could start secretly recording conversations and say they’re protected because they were taping suspected police informants. ” Chicago Sun-Times (9/13/11)
    ————–

    I really don’t think that was a mistake. He must know that the issue is recording officers in public who are performing their duties (typically in uniform). This has nothing to do with allowing the recording of “suspected informants” in private situations.

    I think this brings us to the 3 possible explanations for goofy statements: 1) too stupid to understand, 2) grossly ignorant of what is being discussed or 3) intentionally lying.

    Explanation #1 is clearly out in Posner’s case, and #2 seems very unlikely.

    I can only imagine that his statement is an intentional, disingenuous twisting of the issue. Maybe he knows that his desire is to support an untenable position and he’s desperately clutching for excuses?

    It’s sad. It also would seem to disqualify him from participating if/when one of these laws is challenged in the Seventh Circuit.

    That soccer riot video is totally appropriate – by actually improving professionalism on the part of the police and respect for police on the part of the public, it will make life much safer for the police themselves, and make them more effective in protecting our communities.

  31. All of the details … came from the body microphones on the officers and from the surveillance video at the bus depot that night. “Had that video not been rolling and had those microphones not been rolling on those officers”, the district attorney said today, “we would not be here and charges would not have been filed.” -KTLA video (previous link)

    Citizens provide yet another line of defense…

  32. Posner apparently thinks that determinations of actual innocence is a secondary consideration when it comes to law enforcement. Who needs more information? He’ s in bad company with the likes of Justice Scalia who wrote these incredible words in 2009 that “… this Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent.” Trials as processes for determining truth and justice be damned, we need finality!

    The Romans used to say you could judge a people by the quality of those they place in high office. I’m not sure we’d fare so well in their eyes.

  33. mespo,

    “The Romans used to say you could judge a people by the quality of those they place in high office. I’m not sure we’d fare so well in their eyes.”

    Towards the end….W hat did they say….Oh yeah….You said the “Romans “USED” to say.”…..

  34. “He’ s in bad company with the likes of Justice Scalia who wrote these incredible words in 2009 that “… this Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent.” Trials as processes for determining truth and justice be damned, we need finality!”

    I think we saw that last night in Georgia.

  35. Mike S.

    “I think we saw that last night in Georgia.”

    *********************************
    Take a look at Judge Wm Moore’s opinion concerning the “actual innocence” hearing for Troy Davis who was executed last night. While I do not support the eye-for-an-eye jurisprudence that the death penalty entails and deplore Scalia words in dissent (I think he does it for “shock value” as much as anything), I do not believe an innocent man was executed last night:

    http://multimedia.savannahnow.com/media/pdfs/DavisRuling082410.pdf

  36. “I do not believe an innocent man was executed last night”

    Mespo,

    Who knows? My attitude is this though, I’m not against the death penalty per se, but my standards for its’ application are much higher than beyond a reasonable doubt. Mistakes have happened and can happen. One mistake is one mistake too many. I read enough to feel that he should have been reduced to life without parole, which is no pony ride either.

  37. Mike,
    I agree that enough questions were raised that any honest judciary should have halted the execution. I am not in favor of anyone getting executed, but there are some that push me to my limit. Like the dragging death creep that was executed recently.

  38. rafflaw:

    Davis got two stays and an actual innocence hearing conducted by Judge Moore. His 174 opinion is damning in my book, and the news reports of witness “recantations” are overblown and sometimes just outright wrong. I think Davis was guilty but I still don’t see how an unplanned act involving the murder of an off-duty police officer is a capital offense.

  39. Mespo,
    I understand that Davis got hearings, but if half of the recantations are true, then something is wrong. And besides, I am anti-death penalty anyways. I also agree with you that if it was an unplanned act with an off duty cop it should not have been a death penalty case.

  40. Mespo and Raff,

    I am an unashamed watcher of murder reconstruction shows like 48 hours. What gets me is the diversity of sentencing that occurs, usually due to plea bargaining and the convictions on what seems to be skimpy evidence. Unless the law can be universally applied, in concordance with the Constitution, then I don’t think we can use capitol punishment. I’ve heard of some cases where I’d frankly like to beat the murderer to death, but without total certainty my own sense of morality would be offended if we allow the State to do it.

  41. rafflaw:

    Take a look at that opinion by Judge Moore, I provided. I think you’ll see none of the recantations are credible–most aren’t even recantations , just bad memory. One supposed retractor witness wouldn’t even let her signature be notarized. It’s all a very contrived argument in favor of actual innocence, in my judgment.

  42. “Once all this stuff can be recorded, there’s going to be a lot more of this snooping around by reporters and bloggers . . . I’m always suspicious when the civil liberties people start telling the police how to do their business.”

    I’m most curious about the words at the ellipsis.

  43. […] One high profile judge has commented “Once all this stuff can be recorded, there’s going to be a lot more of this snooping around by reporters and bloggers . . . I’m always suspicious when the civil liberties people start telling the police how to do their business.”  George Washington University Professor Jonathan Turley details some judicial ambivalence to the First Amendment here. […]

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