May 20, 2010

Last week, an Illinois judge rejected Chicago artist Christopher Drew’s motion to dismiss the Class I felony charge against him. Drew is charged with violating the state’s eavesdropping statute when he recorded his encounter with a police officer last December on the streets of Chicago. A Class I felony in Illinois is punishable by 4 to 15 years in prison. It’s in the same class of crimes as sexual assault. Drew will be back in court in June to request a jury trial.

I’m currently working on a feature for Reason about man in a more rural part of the state charged with six violations of the same statute, all of them for making audio recordings of on-duty public officials. For several of the counts in that case, the police were actually on the man’s property. He started recording his conversations with police because he felt he was being unjustly harassed for violating a town ordinance he thought was unconstitutional.

Like our host, I’m of the opinion that it should always be legal to record on-duty police officers, both as a matter of policy and under the free speech, free press, and right to petition the government provisions in the First Amendment. We saw the power and potential of audio and video recording technology to expose government abuse in the Iranian protests last summer. But we also see it here in the U.S. with the thousands of  police misconduct videos uploaded to YouTube in recent years.

Typically, police who want to arrest someone for recording them while on duty use a strained interpretation of state wiretapping laws or whatever state or local law addresses obstructing or  interfering with law enforcement. These incidents are troubling enough, and I think state legislatures should consider passing laws explicitly making it legal to record on-duty law enforcement officials. Those laws should include remedies for people wrongly arrested, or who have had their cameras or cell phones illegally confiscated, damaged, or destroyed.

But in Illinois the situation is quite a bit worse. In Illinois it actually is illegal to make audio recordings of on-duty cops–or any other public official. Illinois is one of a handful of states that require all parties to consent before someone can record a conversation. But the other all-party-consent states also include a provision in their statutes stating that for there to be a violation of the law the nonconsenting party must have a reasonable expectation of privacy. On-duty police officers in public spaces have no such expectation.

Here’s where it gets even worse: Originally, the Illinois eavesdropping law did also include a similar expectation of privacy provision. But the legislature stripped that provision out in 1994, and they did so in response to an incident in which a citizen recorded his interaction with two on-duty police officers. In other words, the Illinois legislature specifically intended to make it a Class I felony, punishable by up to 15 years in prison, to make an audio recording of an on-duty police officer without his permission.

Given the spate of recent stories about cops in Chicago caught on video misbehaving (some of whom were subsequently held accountable only because of the video), the legislature’s already-awful-when-it-passed 1994 amendment hasn’t aged well.

I suspect most state officials know this law is unconstitutional. While several people have been charged under the statute for recording public officials, I’ve so far been unable to find anyone who was actually convicted, much less had a conviction upheld. (If you know of someone who has, please email me!) Prosecutors tend to either drop the charges or offer a plea bargain before the case gets to trial. It isn’t difficult to see why someone would take a misdemeanor plea and a clean record instead of challenging a bad law and risking up to 15 years in prison and a felony record if they lose.

Before Drew the closest anyone came to challenging the law came in 2004, when documentary filmmaker Patrick Thompson was arrested for recording police interactions with patrons outside of bars and restaurants in Champaign-Urbana. He was looking to document allegations that police were treating white patrons differently than black patrons. (See the ACLU’s brief on Thompson’s behalf here). But Thompson took a plea bargain before his case went to trial.

So the law remains on the books. Which Illinois police officers remain authorized by state law to detain, arrest, and jail people who record them while on-duty, and they can continue to confiscate the recordings.

(Cross-posted at Reason‘s Hit & Run.)

UPDATE/CORRECTION: Eugene Volokh emails to say that Massachusetts also doesn’t appear to recognize an expectation of privacy exception to its all-party-consent law, and has upheld a conviction for recording on-duty police officers.