Court orders ban on enforcement of Illinois eavesdropping law

A federal appeals court ruled Tuesday that the controversial Illinois law prohibiting people from making audio recordings of police officers in public "likely violates" the First Amendment and ordered that Cook County prosecutors be prevented from enforcing it.

The ruling from the 7th U.S. Circuit Court of Appeals in Chicago is the strongest blow yet to the state's eavesdropping law, which critics had feared could be used to arrest protesters who record police during the May 20-21 NATO summit.

The ruling follows last month's announcement by Chicago's corporation counsel that the city would not enforce the law during the NATO summit, when thousands of people are expected to demonstrate in the city.

The law makes it a felony to record audio of any conversation without the consent of all parties. It carries stiffer sentences — up to 15 years in prison — if a police officer is recorded without his or her knowledge, but it does not prevent people from recording silent video of police.

In its ruling, the appeals court said the law is "the broadest of its kind" in the country and "likely violates the First Amendment's free-speech and free-press guarantees."

The law "restricts far more speech than necessary to protect legitimate privacy interests," wrote Judge Diane S. Sykes, who was joined in the decision by Judge David F. Hamilton. Judge Richard A. Posner dissented.

The ruling stated that Cook County State's Attorney Anita Alvarez staked out "an extreme position" in her support of the law.

"She contends that openly recording what police officers say while performing their duties in traditional public (places) — streets, sidewalks, plazas and parks — is wholly unprotected by the First Amendment," according to the ruling, which calls the stance "an extraordinary argument."

Officials at the state's attorney's office were still reviewing the 66-page ruling Tuesday afternoon and had no immediate comment, spokeswoman Sally Daly said.

The ruling stems from a lawsuit filed in 2010 by the American Civil Liberties Union of Illinois that sought a preliminary injunction barring Cook County prosecutors from enforcing the eavesdropping law.

A federal district judge denied the request, prompting the ACLU to appeal to the 7th Circuit. Tuesday's ruling requires the lower court to issue a preliminary injunction preventing Cook County prosecutors from enforcing the law, a process that usually takes at least three weeks.

The state's attorney's office could seek a rehearing of the decision by the same three-judge panel or a review by the entire appellate court.

Judge Posner, in his dissent, wrote that the ruling could "impair the ability of police both to extract information relevant to police duties and to communicate effectively" with people in public.

Harvey Grossman, legal director of the ACLU of Illinois, said the ruling is crucial because so many people carry smartphones capable of recording video and quickly posting it online.

"I think it's a very, very persuasive opinion that enforcing the Illinois law in this manner would run afoul of the Constitution," Grossman said.

Debate over the law picked up in August, when a Cook County jury acquitted a woman charged with recording Chicago police internal affairs investigators she believed were trying to dissuade her from filing a sexual harassment complaint against an officer.

In February, the McLean County state's attorney cited flaws in the law when he dropped charges against a man accused of recording an officer during a traffic stop. Circuit judges in Cook and Crawford counties also have recently declared the law unconstitutional.

In the Cook County case, the defendant was Chris Drew, 61, an artist who was charged with eavesdropping after he recorded police who arrested him in 2009 for selling artwork on a downtown street without a permit. Drew died of lung cancer Monday, said his attorney, Joshua Kutnick.

Tuesday's appellate ruling is in line with a recent decision from another federal appeals court and the position of the federal Department of Justice.

The 1st U.S. Circuit Court of Appeals in Boston ruled last year that people have a right to record police working in public after a man was arrested by Boston police for recording them while they arrested another person on the Boston Common. The city settled a lawsuit stemming from the case for $170,000 last month, according to the ACLU.

In January, the Department of Justice argued in a Maryland case that "the First Amendment protects the rights of private citizens to record police officers during the public discharge of their duties."

Chicago police Superintendent Garry McCarthy has said he doesn't object to allowing people to record police working in public, but the city's police union has opposed efforts to change the law. A union spokesman didn't return a call seeking comment on Tuesday's ruling.

State legislators are considering a bill that would allow people to record police officers working in public.


Original report here




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