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Appellate court halts enforcement of law barring recording of cops

Updated: June 11, 2012 9:04AM

A federal appellate court has ordered Illinois police and prosecutors not to arrest or charge anyone for recording police officers.

The state’s eavesdropping law ­— which makes it a felony to tape-record a police officer arresting someone — is being challenged in the courts and by state legislators.

City officials had already announced they would not be enforcing the law during the NATO Summit this month, because of the court challenges and because “police will have more important things to focus on than enforcing that law,” said Roderick Drew, a spokesman for the city Law Department.

The appellate court threw back to a lower court a case in which the American Civil Liberties Union sued Cook County State’s Attorney Anita Alvarez over enforcement of the law. The appeals court also issued an injunction in the meantime barring enforcement of the ordinance.

“The Illinois eavesdropping statute restricts far more speech than necessary to protect legitimate privacy interests. ... It likely violates the First Amendment’s free-speech and free-press guarantees,” federal Appellate Judge Diane Sykes wrote.

The ACLU filed the suit because it wants to be able to record police making arrests.

The ACLU’s “police accountability program” includes a plan to openly make audio-visual recordings of police officers performing their duties in public places and speaking at a volume audible to bystanders.

Because doing so could make the videographer eligible for a prison sentence of up to 15 years under the current law, the ACLU sought a declaratory judgment from a judge that the state law is unconstitutional before it began the program.

The lower courts declined to make that ruling. But the federal appellate court directed the lower court judges to consider the request.

Illinois is unique among states in prohibiting the audio recording of police in their duties. Ironically, video-taping the officers without use of sound is perfectly legal.

Chicago Police Supt. Garry McCarthy calls the law a bad idea that stops him from being able to record his officers doing their job well. But he has pledged to enforce the law while it is on the books.

“This is a foreign concept to me,” McCarthy has said. “Illinois is the only state in the union that has such a law.”

Illinois is a “two-party consent” state, which means both parties must agree to a recording under the law — unless law enforcement is making a recording in the course of an investigation.

While the lower court judge will make the final ruling on the law, Sykes and another judge on the panel gave the lower court this direction: “Defending the broad sweep of this statute, the State’s Attorney relies on the government’s interest in protecting conversational privacy, but that interest is not implicated when police officers are performing their duties in public places and engaging in public communications audible to persons who witness the events.”

Judge Richard Posner dissented, saying the legislature in 1994 might have had good reason for requiring two-party consent — a higher standard of privacy than other states — even when it comes to recording police officers on public streets: “A person who is talking with a police officer on duty may be a suspect whom the officer wants to question; he may be a bystander whom the police are shooing away from the scene of a crime or an accident; he may be an injured person seeking help; he may be a crime victim seeking police intervention; he may be asking for directions; he may be arguing with a police officer over a parking ticket; he may be reporting a traffic accident,” Posner wrote. “Police may have no right to privacy in carrying out official duties in public. But the civilians they interact with do.”

The union representing Chicago police officers has been fighting an effort in Springfield to bring the eavesdropping in Illinois in line with other states.

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