Eavesdropping on the Police

Respectfully submitted by Lawrence Rafferty (rafflaw)–Guest Blogger

Here in Illinois it is currently illegal for citizens to audio tape record public officials while they are doing their public duty, even in public.  “Illinois’ eavesdropping ban was extended in 1994 to include open and obvious audio recording, even if it takes place on a public street where no expectation of privacy exists and in a volume audible to the “unassisted human ear.” ‘  Chicago Tribune   When I first heard of this law, I was at first shocked and then my shock turned to anger.  The police can make recordings of citizens out in public while they are in the midst of a traffic stop or even when one is exercising their First Amendment rights on the streets of Chicago.  But, private citizens are not allowed to record those same police officers when they abuse the public or take liberties with constitutional guarantees.

The good news is that the ACLU here in Illinois is fighting this theft of our civil rights and the case is currently pending in the 7th Circuit.  ” The American Civil Liberties Union of Illinois today asked a federal appellate court to block future prosecutions of the ACLU and its staff members for recording police officers performing their public duties in a public space as a violation of the First Amendment. The oral argument on Tuesday morning is the latest action in an ACLU lawsuit filed in federal court in August of 2010. The ACLU of Illinois is defending its program monitoring police conduct and practices on the streets of Chicago.”  ACLU

Why is the ACLU making a Federal case out of a street artist’s arrest?  The easy answer is that if no one is allowed to audio record police officers on the street, how will the citizens of Illinois and the other states who have similar laws, be able to monitor the actions of over zealous police officers who go beyond the law?  The ACLU routinely monitors demonstrations to make sure that the police are not abusing the protestors and violating their constitutional rights.  This legislation would prevent the ACLU and citizens from being able to prove that the police are breaking the law. It is not surprising that the police union supports this restrictive law that protects police criminality.  “Officials with the Fraternal Order of Police in Chicago have said the union supports the law because it prevents people from making baseless accusations against officers by recording them and then releasing snippets that don’t reveal the full context of the incident.”  Tribune

Let me see if I understand the argument put forward by the Fraternal Order of Police (FOP).  If citizens are allowed to record what police officers are saying then the citizens will be able to take conversations out of context and put the officers in a bad light.  Interesting claim, but if the police are already recording us on their video cameras in the squad cars and with the many street cameras set up all around the City of Chicago, how are citizens going to be able to get away with the actions claimed by the FOP?  The answer is that they won’t.  The ban on recordings prevents the truth being told on how officers are treating citizens on the streets.

The good news is that the ACLU suit is backed by many media organizations and there is even a new law working its way through the State House in Springfield that would allow citizens to audio record police officers on any street in Illinois.  House Bill 3944   This battle is not just a concern for those of us who live in Illinois.  If you are a citizen of Maryland or Massachusetts, you are also laboring under similar laws that prevent you from making audio recordings of police officers in the line of duty.  Some may think that the ACLU is making something out of nothing.  If you agree with that line of thinking, at which point do you say that the police and the State have too much control over our right to monitor police activities in public? Should we just sit back and allow the police to be able to say and do anything to us in the streets?  Even if that action or those words prevent us from exercising our First Amendment rights?

What if a Federal agent was disrupting a legal demonstration and was recording what the demonstrators were saying and doing?  Shouldn’t the demonstrators have the right to record just how the government is infringing on their rights?  My Mom also used to tell me what is good for the goose is good for the gander.   Maybe the State of Illinois and the City of Chicago should also be required to follow that logic.  What is your take on this subject?  Should the State have a right to stop citizens from monitoring State actions?

ACLU vs. Alvarez Complaint

Additional ACLU vs. Alvarez court filings

29 thoughts on “Eavesdropping on the Police”

  1. Oops. It was Kirkland & Ellis which was counsel on Littleton and Kendrick cases for the Cairo cases.

  2. That is a very interesting oral argument. The disdain that the one judge has for the ACLU is evident and one wonders how old this guy is. His questions are so smug. He keeps suggesting that drug dealers are going to go around and eavesdrop on cops talking with snitches and tape record it.
    This oral argument should be taught in law schools. The lawyer for the ACLU held his own so well. The other two judges were fairly good and insightful.

    I read the Complaint, Amended Complaint and briefs on the ACLU link. The ACLU is doing the right thing but there is a bit of breadth to the thing. Some pugilists would argue for a narrower focus– as the vociferous judge kept harping on. The Amended Complaint is excellant by the way. The Appellate Brief and Reply Brief are excellant.

    I am presently reading the biography and tribute to Thurgood Marshall written by Roger Goldman, a Professor at Saint Louis University. That book demonstrates the absolute need for organizations like the ACLU and the NAACP. The legal aid societies are doing nothing to advance issues for the poor or the rights of us all. They did thirty years ago but no longer. The Chicago ACLU is out in front. The law firm Sidley and Austin is counsel on this ACLU case. That firm was of counsel and on board on many cases over the years including Littleton v. O’shea a Cairo Illinois case from the ’70s (U.S. Supreme Court) cited in the brief. I believe that they were also counsel on Kendrick v. Walder, 7th Circuit 1975, at large aldermanic system attacked in Cairo. A law firm which puts forth efforts for the good of society and civil rights over the course of four or five decades is rare and exceptional.

    This is an excellant topic brought to the blog by Rafflaw and was appreciated by this dog.

  3. I urge you all to go to the link above where it says Additional ACLU v. Alverez postings. Negotiate through that and click on the Oral Arguments in the 7th Circuit. Mr. O’Brien from the ACLU is excellant and holds his ground. I believe it is Judge Posdner who monopolizes the conversation in the opening round and this guy is truly amazing. In the reply argument the other two judges chimne in and they are quite reasonable. Ya gotta hear this. I am playing it at the kennel tonight.

  4. “Every society gets the kind of criminal it deserves. What is equally true is that every community gets the kind of law enforcement it insists on.”

    Robert F. Kennedy (1925-1968)
    U.S. Attorney General and Democratic politician

    In his book The Pursuit of Justice (1964)

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