Below is my column today in the Sunday Chicago Tribune on the recent denial of review by the Supreme Court in the Illinois eavesdropping case that we discussed earlier.
Cook County State’s Attorney Anita Alvarez ended up empty-handed last week — and all of Chicago can celebrate. Alvarez lost a U.S. Supreme Court mission that would likely surprise most citizens of this progressive city Chicagoans: to strip them of their First Amendment rights and to allow her to prosecute citizens for videotaping police in public.
Alvarez’s position was denounced as extremist by a federal appellate court and civil libertarians around the country. However, she refused to yield to the courts, to the Constitution or to the public — making Chicago a leader of a national effort to bar the use of a technology widely considered the single most important deterrent of police abuse. Alvarez is not alone in this ignoble mission, and this threat to the public is not likely to pass with her latest defeat.
It was 21 years ago that a citizen filmed the savage beating of Rodney King by Los Angeles police officers after a high-speed car chase. The most chilling fact in the King case was that, absent the videotape, this would have likely been dismissed as another unsupported claim of police abuse.
Since that time, numerous acts of abuse by police have been captured by citizens — exposing false charges and excessive force often in direct contradiction to sworn statements of officers. These cases have increased exponentially with the explosion of cellphones with videotaping capabilities. Chicago has seen a long litany of such cases.
Last month, the Chicago Police Department settled a case with an alleged gang member who alleged that Officers Susana La Casa and Luis Contreras took him to the turf of a rival gang and allowed Latin King gang members to taunt and threaten him. It is the type of case that would ordinarily be dismissed on the word of the officers, who allegedly gave false statements regarding the case. Lawyers for Miguel “Mikey” Castillo, however, found a videotape from a witness showing the officers laughing as Castillo cowered in their police SUV. It is the type of act that Alvarez argued should have been a crime — not the police harassment (which her office declined to prosecute) but the filming of the police harassment.
The same is true for the still-pending case of Brad Williams, who filed a lawsuit against the Chicago Police Department in 2011 after he claimed to have been beaten by police in response to his filming an officer holding and dragging a man outside his squad car. Williams was told by officers that it was illegal to film police in public — the position advocated by Alvarez.
Loyola University Chicago professor Ralph Braseth was told the same thing in November 2011. Braseth was also videotaping an arrest as a journalist when he was detained and told that he was committing a crime. He was let go but not before a Chicago police officer deleted his video.
There remains a striking contradiction in the policies of Chicago officials. While Alvarez and others are pushing for the arrest of citizens who photograph police in public, Chicago authorities are also pushing for more and more cameras to videotape citizens in public. Thus, an American Civil Liberties Union report estimated more than 10,000 surveillance cameras are linked throughout the city to allow police to monitor citizens while Alvarez is trying to imprison people who monitor police in public.
When the latest case went before the U.S. 7th Circuit Court of Appeals, the panel described Alvarez’s arguments as “extreme” in arguing that citizens filming police in public is “wholly unprotected by the First Amendment.” Alvarez did not have to adopt such an extreme position and she did not have to seek a reversal from the Supreme Court. Yet, she sought to overturn a decision by Judge Diane Sykes that chastised her for disregarding “the First Amendment’s free-speech and free-press guarantees.”
Alvarez, however, was not without one supporter on the court. Judge Richard Posner admonished the ACLU lawyer who sought to defend the rights of citizens and journalists. In oral arguments, Posner interrupted the ACLU lawyers after just 14 words stating, “Yeah, I know. But I’m not interested, really, in what you want to do with these recordings of people’s encounters with the police.” He then stated openly what is usually left unstated by those seeking to jail citizens: “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.”
Alvarez and others appear to share the same suspicion and hostility. Across the country, police and prosecutors continue to arrest or harass citizens who film police — even after numerous courts have stated that such filming is a protected constitutional right.
The latest such case occurred last week in California. Daniel J. Saulmon was filming an arrest when he was stopped by a police officer demanding his identification and an explanation — neither of which Saulmon was inclined to give since he was engaged in a clearly lawful activity. The officer promptly arrested him, and he was held in jail for four days — ultimately charged with resisting, delaying and obstructing an officer. The video shows Saulmon standing at a distance from the arrest and never resisting in any way.
As a native Chicagoan, it was distressing to see the Cook County state’s attorney seek the reduction of guarantees of free speech and free press. With a crime wave sweeping the city and daily murders recounted in national media, one would think that Alvarez would have a few things more important to attend to than stripping away the rights of the citizens that she swore to protect.
Jonathan Turley is a law professor at George Washington University and editor-in-chief of the legal blog jonathanturley.org.
Date: Chicago Tribune, December 2, 2012