Seventh Circuit Bars Use of Illinois Law To Prosecute Citizens For Videotaping Police And Slams Cook County State’s Attorney Alvarez For “Extreme” Views

We previously discussed the rather shocking treatment Seventh Circuit Judge Richard Posner gave an ACLU lawyer over the right of citizens to videotape police in public. As discussed in prior columns and blogs, police across the country have been arresting citizens who film them — a clear abuse of their rights and an effort to prevent citizens from creating incriminating videotapes increasingly used against police. The Seventh Circuit has now barred the use of the law to prosecute citizens for videotaping. Posner dissented and showed, again, a dismissive view of the rights of the citizens vis-a-vis police. The court majority slams State’s Attorney Anita Alvarez for her extreme views expressed in the case and effort to strip videotaping of constitutional protections.

Cook County has been on the forefront of cracking down on citizens attempting to film police. The Illinois law allows for sentences of up to 15 years in prison for those who record audio of police conversations without consent. The ACLU challenged the law by saying that they wanted to film police to create a film as part of a “police accountability program.”

Judge Diane Sykes wrote in the majority opinion below that “The Illinois eavesdropping statute restricts far more speech than necessary to protect legitimate privacy interests; as applied to the facts alleged here, it likely violates the First Amendment’s free speech and free-press guarantees.”

Posner would have nothing of it: “Privacy is a social value. And so, of course, is public safety. The constitutional right that the majority creates is likely to impair the ability of police both to extract information relevant to police duties and to communicate effectively with persons whom they speak with in the line of duty.” Posner insisted that the decision would prevent police from speaking with candor to citizens out of fear that they might be monitored — a rather implausible claim in my view. However, Posner insisted that this is about privacy rights — of officers and others speaking with them:

Accuracy is a social value, and a recording of a con- versation provides a more accurate record of the conversation than the recollection of the conversants: more accurate, and also more truthful, since a party to a conversation, including a police officer, may lie about what he heard or said. But on the other side of the balance are the inhibiting effect of nonconsensual recording of conversations on the number and candor of conversations (and hence on values that the First Amendment protects); the baleful effect on privacy; the negative effect on law enforcement; and the litigation likely to be engendered by police officers’ shooing away intruders on their private conversations with citizens. These are significant social costs, and the majority opinion offers no basis in fact or history, in theory or practice, in constitutional text or judicial precedent, for weighting them less heavily than the social value of recorded eaves- dropping.

The ruling of the court is a further indictment of the campaign by Alvarez to reduce the rights of citizens in filming police and effectively deter the creation of videotape showing police abuse. The court details Alvarez’s extreme views:

On the merits the State’s Attorney has staked out an extreme position. She contends that openly recording what police officers say while performing their duties in traditional public fora—streets, sidewalks, plazas, and parks—is wholly unprotected by the First Amendment.

The court does a rather elegant discussion of forms of expression that are protected by the first amendment in rejecting Alvarez’s effort to strip videotaping of such protections:

The process of expression through a medium has never been thought so distinct from the expression itself that we could disaggregate Picasso from his brushes and canvas, or that we could value Beethoven without the benefit of strings and woodwinds. In other words, we have never seriously questioned that the processes of writing words down on paper, painting a picture, and playing an instrument are purely expressive activities entitled to full First Amendment protection. This observation holds true when the expressive medium is mechanical rather than manual.

Alvarez attacked the ACLU for even bringing the lawsuit, calling the challenge is “advocacy under the guise of First Amendment infringement.” It is not clear what Alvarez would view as such advocacy since many citizens have condemned her threats under the law as an effort to chill efforts to target police abuse. The court clearly shares the confusion:

We confess we do not understand the point. The ACLU’s status as an advocacy organization hardly defeats its standing. The organization intends to use its employees and agents to audio record on-duty police officers in public places. The ACLU claims a First Amendment right to undertake this recording, but the eavesdropping statute prohibits it from doing so. The ACLU itself, and certainly its employees and agents (Connell, Carter, and others), will face prosecution for violating the statute. Nothing more is needed for preenforcement standing.

Source: Chicago Tribune as first seen on ABA Journal.

46 thoughts on “Seventh Circuit Bars Use of Illinois Law To Prosecute Citizens For Videotaping Police And Slams Cook County State’s Attorney Alvarez For “Extreme” Views”

  1. Posner is utterly amoral; h8s decisions dating back to the 80s show that. Check out his decision in the DeShaney case. One of the sentences (I cannot now remember it) is truly STUPID as in STOOOOPID, put a Bronx accent on that.

    But the concept that things have to be kept secret to protect someone’s privacy WHO IS VERY INTERESTED IN GETTING THE INFORMATION OUT is an old judicial trick. Cases of child abuse are kept SECRET when the children want them known so they can access protection (as in “Hey listen to me about what he’s been doing to me!”) and files are kept secret based on the “privacy interests” of the people those files are victimizing, in spite of the victims filing FOIA requests, etc. Redaction does not protect the privacy of anyone who is trying to be private; it protects the agencies from being found out for what they are doing.

    And when you see a stupid explanation like this, in the dissent, that the privacy is for the person screaming for help while the police abuse him or her, you see the whole thing laid out in full fakery.

    “We are keeping her from getting this information about what we have done to her in order to protect her privacy.”

  2. Wow, some parts of the dissent are truly foolish , for a court officer!

    Such as …

    “; the people who most need police assistance and who most
    want their conversations kept private are often the
    people least able to delay their conversation until they
    reach a private place.
    If a person has been shot or raped
    or mugged or badly injured in a car accident or has witnessed any of these things happening to someone else,
    and seeks out a police officer for aid, what sense would
    it make to tell him he’s welcome to trot off to the
    nearest police station for a cozy private conversation,
    but that otherwise the First Amendment gives passersby
    the right to memorialize and publish (on Facebook, on
    Twitter, on YouTube, on a blog) his agonized plea for
    help? ”

    People that need police assistance because they are a victim are undoubtedly going to be subpeonaed (under threat of imprisonment)
    into court and have to testify under oath in public. The record of who testified to what and when will be memorialized and archived as a public record FOREVER!

    I guess we should throw away the right to face your accuser while we are at it.

    You respect this guy? For real?

  3. I think I have the perfect solution to this problem. If you are stopped by the police, dial 911 and leave the telephone call open. It might be illegal for a citizen to record the police, but there is no law prohibiting the police from recording the police. At the outset, you could prove you made the call and how long it lasted. If they destroy or spoil the evidence, you’d have them on adverse inference. It may not convict the police for wrongdoing, but it would go a long way as a defense against manufactured police testimony.

  4. I don’t know if Posner lives in Chicago, but Chicago cops used to be some of the most corrupt in the country. When I was at the UofC, I was told to wrap a $20 bill around my driver’s license if stopped for a traffic violation by a Chicago cop. With inflation, it’s now probably $100 around the license. Of course, Posner doesn’t have to worry about any of this. He can just flash his credentials and that will stop any attempted shakedowns.

  5. Tony C.,

    I’ve seen backpack recorders, as well… I don’t know if Brickhouse has them. There’s another site…, but I just can’t remember it. If it comes to mind, I’ll pass it along.

    “An interesting experiment”, as you say…

  6. @anon nurse: Thanks for the links. Some cool stuff there, I might try to cobble something together, between that and the card. It would be an interesting experiment, that’s for sure.

  7. “the baleful effect on privacy; the negative effect on law enforcement; and the litigation likely to be engendered by police officers’ shooing away intruders on their private conversations with citizens. ”

    It would seem to me that the majority of these videos are made in public…bystanders don’t go into someone’s home to tape these ‘conversations’. For years the police (and the courts) have have held that persons have no expectation of privacy in a public setting (the mall, streets, etc). Therefore, it would seem to me that a policeman cannot have a ‘private conversation with a citizen’ in a public place, and what conversation they DO have should be considered public since there is no expectation of privacy in a public place. They can’t have it both ways.

  8. There is no escaping being recorded when you least expect it. I remind our new hires that as far back as 1995, Timothy McVeigh was caught on security camera video parking that Ryder truck in front of the Murrah Federal Building. Since then, the number of video cameras in public places has grown exponentially. If you do not want your actions to be on YouTube, don’t do it. I also tell them their dash cams can be either their best friend or their worst enemy. It all depends on their behavior in front of it.

  9. Considering that every day of my life I am videotaped in public without any express consent, whether it be at the ATM, the convenience store, the gas pump, the supermarket, the zoo, the school, the park, the highway, or downtown… I don’t have any objections to the police being videotaped. Many might feel that recording conversations would fall in the same category, yet I don’t believe that many of the video recorders capturing my image are using audio recording.
    So if we feel that recording audio of police officers without their consent is acceptable, and then using that audio to prosecute them is acceptable, we should expect that recording our own private conversations in public is acceptable, and using our conversations to prosecute us is acceptable. I’m actually ok with it working both ways… nobody gets to lie and get away with it when it pertains to a criminal act, and in some cases, it might even prove innocence, should dishonest people consort to dishonest means to accomplish things!
    We are all accountable for our actions, and only people who don’t wish to be accountable have any objections to being recorded in public. I am not concerned if a security guard records me thumping a melon to see if it is ripe. I’m actually glad my bank records my image when I’m at the ATM… if my card is stolen… an image of who’s using it helps! And anything I might say in public IS public… write it down and quote me, record it, whatever you wish. If I said it, it’s because that’s what I think or feel. I don’t care who hears it, because I don’t feel embarrassed or ashamed or feel that I have anything to hide.
    Big brother is watching! He has been for a long time! So what! He’s watching for our protection… your computer internet use is monitored. Your phone use can be, if there is need… your GPS can tell them where you are and where you’ve been. It’s 2012, and electronic surveillance is the norm , and will only increase. And that should apply to the police also. If you act in a manner that is responsible and respectful, you will have no objections to being held accountable for expressing those qualities.

  10. Jebus, you sound like a fucking nightmare.

    Cops probably talk for years afterwards about the wannabe cop psych with his head up his ass.

  11. Tony, when I am looking at a prospective LEO, attitude is everything. Sometimes I think I am interviewing Barney Fife. Too nervous to be issued a gun, let alone a bullet to put in it. How they react to stress and surprise, or sudden twists and turns in the interview tells me volumes. I have been doing these kinds of interviews for almost forty years, so I have had a lot of practice. The one that I cannot shake was the guy who had a breakdown during the interview. I told him to call his doctor and get an appointment. Instead, he went home and put a 9mm round through his head.

  12. @OS: I have a secret interview technique I invented about 25 years ago that has not failed me once. I teach.

    Specifically, I teach the applicant how to solve a certain type of real-world problem that requires them to remember three simple rules; it takes about five minutes to teach on the white-board. I ask them at each point if they understand it, when I am done I tell them it is important they understand this, and I ask if they have any questions. When they have no more questions, I erase the whiteboard completely, hand them the marker, stand aside, and say, “Good. Teach it to me.”

    I continue interviewing until I find a person that can.

    I have used variants of that approach to interview all kinds of employees, even secretaries and graphics artists. It works great, at least for me. You get people that can listen and comprehend. I figure if you have that much to work with, everything else can be fixed.

  13. When interviewing a new hire, I always pull out my cell phone and ask the applicant what it is. They always answer, “Cell phone.” My reply is that is correct, but point out the lens and tell them it is also a video camera. Then remind them that every fifteen year old in the country has one and knows how to use it. Then I ask the applicant if they know what the Cloud is. Some do, some have never heard of it. I show them the cell-top app and tell them that I can not only take their picture, but can upload it to the internet in real time. That means even if they tried to delete it, the video is already gone. As was mentioned above, new officers are reminded there is no way to avoid being on candid camera.

    At that point I usually show them a few YouTube videos of officers making fools of themselves. And tell them that if they ever end up as the star of a viral internet video, we are going to have another talk and it will not be fun.

  14. But Judge Posner – if the cops aren’t doing anything wrong, what do they have to worry about? Isn’t that what the cops tell the citizens they detain and question?

  15. Sorry but another comment.

    We had a May day deomonstration here in Seattle. Watching the news overlooking the scene using helicopter cameras police arrested a handfull of people and you could see many, many people with cameras videoing the events of the arrests. Nobody here was worried they would be arrested fo doing this. We can do this in Washington.

    LONG LIVE WASHINGTON STATE and Article 1 Section 5 of our state Constitution

  16. I never had any issue with people videotaping me when I worked for the Sheriff’s Office. Public place? So what? No expectation of privacy while conversing in a public area. (or at least in My State for the most part. Thank GOD I live in Washington State) The only time I asked someone using a camera phone videoing me to move was when they had inadvertently walked too close when I ws dealing with a person I was about to arrest. I just asked them to move about 20 feet way for their own safety. They did, and we were all good to go.

    When I was in the academy one of the instructors there said to “always act as if the news was filming you.” I thought it was good advice. If you act reasonably and professionally what is there to worry about?

    I also fail to see what the difference is between watching the police with your own eyes, and recording what you see into your own memory, and using an electronic device to do the same.

    When I was in high school I went on a tour in the Soviet Uinion. Yes, the Soviet Union. When we got there we were told not to take pictures of government buildings, military, or the police. One of the students in our group got lost and walked into a “restricted area” and was arrested, and later released. I never thought this would happen here in America. Sad to see the Soviet Mentality is still in existence.

    I would say WT? but, I’m too saddened by what I see to summon the will to do so.

  17. IMHO, Judge Posner’s position on this has severely tarnished his entire reputation as a distinguished jurist. I am amazed that a man in such a position can have such views. Naivete I suppose.

  18. @Michael Lee: Wow, that is pretty cool, and just $100 bucks. Now I just need to figure out how to get a necklace that snaps a photo every 5 seconds. Or maybe a camera that looks like a pen in my pocket or something.

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