We have yet another person arrested for recording a police officer in public. Louis Frobe felt he was wrongly stopped for speeding and decided to use his phone to videotape and record the stop and its surroundings. When he held the phone outside of the window to videotape the surrounding area, the officer proceeded to arrest him and charge him with a felony in Illinois. The arresting officer is identified in a lawsuit as Ralph H. Goar of the Village of Lindenhurst.
Upon seeing the phone, the officer confronted Frobe:
Officer: “That recording?
Frobe : “Yes, Yes, I’ve been…
Officer: “Was it recording all of our conversation?
Frobe: “Yes. Officer: “Guess what? You were eavesdropping on our conversation. I did not give you permission to do so. Step out of the vehicle.”
He was charged with a felony and kept overnight in jail. As in many of these cases, the charges were later dropped but the point was made. If you do not want to spend the night in jail and face a felony charge, do not try to record police in public. There is again no report of any punishment or discipline of the officer. The result is that a hostile officer can continue to use arrests as a deterrent to anyone who tries to record him. The Chief of Police insists that this officer was “merely enforcing the law.” Frobe has now filed suit.
Here is the complaint: 110314-frobe-v-lindenhurst-11cv1722
The complaint alleges violations based on (1) the first amendment, (2) false arrest, (3) unlawful search, (4) conspiracy, (5) Monell liability and (6) malicious prosecution. The last claim raises questions of false statements by the officers:
75. Defendant Officers willfully and wantonly initiated criminal proceedings against Plaintiff without probable cause to believe he had committed a crime.
76. With malice, willfulness, and/or reckless indifference to Plaintiff’s rights, Defendant Officers created, or acquiesced to, false and/or inaccurate police reports, causing him to be prosecuted for a serious felony offense.
77. In addition, Defendant Officers gave false accounts regarding their investigation to other police officers and/or Assistant State’s Attorneys and/or fabricated evidence.
78. The criminal proceedings against Plaintiff were terminated in his favor, in a manner indicative of innocence.
Among the defendants are Lake County State’s Attorney Michael Waller and Defendant Attorney General Lisa Madigan.
Source: ABC
Police usually don’t want no one to see what they are doing just incase they decide to beat the person up or do something else illegal to them.
The Recording Of Police Officers In Public Places Is Never Illegal…
Honorable Federal Judge Richard Smoak struck down Florida Statute 843.17 on April 30, 2010 that was unconstitutional on its face and as applied for a false arrest that made it a crime to publish police officers’ addresses and phone numbers to intimidate, hinder or interfere with their duties. U.S. District Judge Richard Smoak ruled that the law violates free speech rights to Rob Brayshaw And All American Citizens. Smoak ruled in favor of a Tallahassee man, Robert Brayshaw, who challenged the law with help from the American Civil Liberties Union. Brayshaw had been charged with violating the law for posting on the Ratemycop.com website the address and cell phone number along with criticisms of a Tallahassee police officer. The charge was dismissed because the state violated Florida’s speedy trial law. Smoak also ordered the city to pay Brayshaw’s $25,000 in legal expenses for his false arrest as unconstitutional for being falsely and wrongfully applied to the law. The State of Florida paid $35,000 for the attorney fees for the legal challenge of the law being unconstitutional on its face. The ACLU attorney fees alone to Rob Brayshaw were $60,000 for the challenge to the City Of Tallahassee And State Of Florida. Sources state that the case cost over $100,000.00 to tax payers for the illegal investigation, false arrest, two false charges and the Constitutional Challenges to both the City And State. If publishing any name, address or a phone number was a crime, all americans would be criminals. Wired Magazine billed the case as the “Dumbest Ever” as handled by the City of Tallahassee. Judge Smoak clearly stated that the actions of Rob Brayshaw were “constitutionally protected” as there was no threat to a police officer at all. This means that if the law was even written as constitutional to be applied by the City of Tallahassee, it did not apply to the actions of Rob Brayshaw for the false arrest by Tallahassee Police Officers. Federal Judge Richard Smoak clearly stated that “The publication of truthful personal information about police officers is linked to the issue of police accountability through aiding in achieving service of process, researching criminal history of officers, organizing lawful pickets, and other peaceful and lawful forms of civic involvement that publicize the issue. Furthermore, Plaintiff as an individual is afforded no less rights than those afforded to the media, nor is the level of First Amendment scrutiny altered by the fact that the internet was the medium used by Plaintiff. See Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 784, 105 S.Ct. 2939 (1985); Reno v. ACLU, 521 U.S. 844, 870, 117 S.Ct. 2329 (1997). Thus, Plaintiff’s speech, and that proscribed by § 843.17, is protected by the First Amendment.”
http://www.aclufl.org/news_events/?action=viewRelease&emailAlertID=3829
http://www.tcpalm.com/news/2010/jul/05/randall-c-marshall-suspect-who-outed-police-of/
Anyone have an explanation of why Illinois has such strong laws against one party recording the other party without permission?
75 years is just insane; a penalty more suited for bank robbery with gunfire.
So, the pattern for the Illinois law seems to be that officers are free to arrest people, charge and hold them, then drop the charge so that the law never gets directly challenged (and thus, potentially declared unconstitutional) in appellate proceedings coming directly from criminal proceedings. (Can a civil case be used to have a criminal law declared unconstitutional?)
This can’t be the first time in the history of US law that such a pattern has been used to keep a problematic law on the books. What were some other similar examples? How were those laws eventually overturned? Can such history be used to strengthen arguments for sanctioning the police and prosecutors who are engaging in this pattern?
It’s better in New England: 1st Circuit upheld a right to video police in public places – Aug 26, 2011:
http://www.righttorecord.org/wp-content/uploads/2011/08/10-1764P-01A.pdf
I agree with blhlls that the dashcam should be construed as consent… if I’m ever pulled over again, I will ask to conduct any conversation in front of the dashcam.
Seems to me Frobe’s counsel could make an additional argument grounded in the 6th amendment plus the due process clauses… an argument uniquely to be claimed by persons accused by the police. Everyone knows that human memory is far less reliable than audio or video recordings. Shouldn’t modern notions of due process demand that accused persons have the right to access the best available evidence for their defense? And should not that right commence at the moment of first encounter with police?
Until the courts establish that right I would suggest that people in Illinois who are stopped by the cops ask the police to consent to recording the encounter – in front of the dashcam, if there is one. If the officer refuses to consent, the defendant should use that at trial to establish reasonable doubt – after all, the cop could have allowed an accurate record to be made. The refusal raises doubt about the officer’s motives and veracity. (Granted, that argument would work better with a jury than a judge, so it isn’t going to help in most traffic cases.)
Yes, it’s lovely here in Illinois…
I am in the middle of a similar federal case and its going well so far as I have a district judge that appears to be solidly on our side. Trouble is…the 5th circuit often sides with the government and everyone knows it
they should allow cops to change their names upon completion of police training. if cops like ralph goar or the cop in ny, tony baloney could call themselves Dick Steele or Bar None maybe they wouldn’t feel the need to act out like this.
Don’t forget … they carry guns and a growing number of them are certifiably nuts …
Separate from the first amendment/public policy arguments, it seems to me that the officer’s own dashcam recording should, as a matter of law, establish that the officer has consented to being recorded.
Citizens who are being told they were driving too quickly or maneuvered improperly on a tax bought road…should not be subject to a tax paid cop abusing them. Basically we have created an environment where violent or weak people know the police force is the most protected, and violent place they can be. where else can you spray poison into someone’s eyes bc they don’t follow your commands? Where else can you be defended for electricuting a person for not answering you? Pretty awesome place for psychopaths to just pretend to be sane for a bit…
Has the police union jumped in to express the near deity character of the officer yet?
OS,
Great link. This kind of obstruction of the First Amendment cannot be allowed to stand. I hope the plaintiff has the financial ability to appeal this up the ladder.
I remember that case. Thanks for the update, OS. This trend of encouraging jackbooted thuggery in the police of this country ends only one way: badly.
In cases like this, the last thing the defendants want is case law going against their policies. I predict this will settle out of court.
Some may remember the Utah state trooper who tasered a man in the back as he walked away following refusal to sign a ticket. Then the man’s very pregnant wife got out and the officer threatened to taser the pregnant woman trying to assist her husband. The state settled that one for $40K and no admission of wrongdoing.
http://www.deseretnews.com/article/695260666/Utah-to-pay-40000-in-Taser-settlement.html
If there is any justice this law suit will hammer the defendants as an example to others. The police cannot be allowed to abuse their authority.
Question for professor Turley or any other lawyers in the audience:
What if Mr. Frobe stood silent and refused to answer officer Goar’s question about recording?
Will a Motion for SD be filed…of course that is the “Legal” thing to do…Should the motion be granted..Not if there is suffricient argument for the change of the law….Will it .be appealed….Of course..in either case….
The law is the..should it be changed…Yes…a sign of the times….Unless you’re in Chicago….there is always the river walk….