By: Jonathon C.A. Blevins
If anything is protected by the First Amendment, audio/video recording a public servant in a public place while performing a public function is protected. One does not need to be a First Amendment scholar to conceptualize the basic foundation of this concept. However, a respected jurist, Judge Posner of the US Court of Appeals for the Seventh Circuit, seemed puzzled.
Chris Drew was arrested in 2009 for selling artwork without a permit. Apparently, this is an arrest- able offense in Chicago, IL. While being arrested, Mr. Drew recorded the events. Unfortunately for Mr. Drew, the act of recording an officer in a public place is a violation of state law. The entire “eavesdropping law” can be found here. The law prevents anyone from eavesdropping on conversations of other people without Court approve. Here is the portion that applies to Mr. Drew:
(b) The eavesdropping of an oral conversation or an electronic communication between any law enforcement officer, State’s Attorney, Assistant State’s Attorney, the Attorney General, Assistant Attorney General, or a judge, while in the performance of his or her official duties, if not authorized by this Article or proper court order, is a Class 1 felony
The ACLU accepted Mr. Drews case and sought an injunction. The 7th Cir. ruled in favor of an injunction against enforcement of the law. Unfortunately, Mr. Drew did not win his battle with lung cancer. He did not witness his victory. As a result, Chicago announced that it will not utilize the law against demonstrators during the NATO summit in two weeks. Without going into the nuances of why this law will fail, suffice it to say that it is failing in the most basic First Amendment concepts (overbreadth, TMP, content based, etc).
The full 66pg opinion is found here. The Chicago Tribune’s summarized Judge Posner’s dissent. Posner opined:
“the ruling could impair the ability of police both to extract information relevant to police duties and to communicate effectively with people in public”
Those that find fault with those that expose LEO often cite this same reasoning. However, the ability for LEO to perform their duties is outweighed by the people’s right to know. Further people have a right to check the balance of power. Anyone that has contact with the criminal justice system is aware that what an officer says is generally regarded as accurate. The only way for an individual to expose LEOs is to produce audio or video that suggests a different set of events. Also, it says volumes that LEO organizations do not want to allow the public to make these recordings. The recording is as a close to an unbiased “witness” as one can hope to produce. Thus, supporting the law seems to convey that LEO organizations are afraid of what will be captured on video. If this is a legitimate fear, then the redress is to train LEO better and/or hire LEO that utilize better judgment in their performance of a public function.
To demonstrate the need to allow a robust marketplace for public recordings of public officials, here are some examples of when video is useful. The people on the receiving end of police conduct would have no other means of “proving” the events occurred but for video:
- Girl is arrested in downtown Orlando for two felonies. She was booked for Battery on LEO and Resisting With Violence. The total possible punishment for her charges is 10 years in prison. Video actually shows girl was accosted by LEO. Here is the article – Here is the video. SAO dropped all charges against the woman but the civil suit against the LEO is ongoing.
- Recent arrest of two CA officers that beat a mentally challenged, homeless person to death. Judge ruled the officers can stand trial. Video.
- Rodney King.
- Occupy demonstrators on CA campus being pepper sprayed at close range. Video.
It is important to note that not all LEO act like those in the videos. In fact, it is fair to say that most LEOs will go their entire career without an episode like those captured above. But, the people have a right to capture the few instances when it does occur. To make these videographers felons for exposing illegal/improper/unwanted behavior is anithetical to the purpose of the First Amendment.
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The Legal Satyricon 
It is clear that the public has a stronger interest in recording LEOs than in having unrecorded conversations with LEOs in public places. It is also clear that the true purpose of this law is simply to re-inforce the “blue wall.”
What’s more important is making the misbehaving LEOs accountable in court (civil and criminal both). What’s most exceptional about the four cases you cite is that that may happen. Most of the time, LEOs can’t be touched, both because they have immunity and because they own the prosecutors’ offices. That has to change.
We also need to impose some decent rules of engagement on all LEOs. For instance: no beating, Tasing, or pepper spraying anyone just for arguing with an LEO: the cop must either have clearly told the person they’re under arrest (or at least shouted Halt!) or they have to be physically fighting somebody.
I recover, restore, and occasionally enhance audio material from a wide range of sources. As part of my work, I’m occasionally asked by our law enforcement agencies to perform minor forensic work on recordings – recovering and restoring recorded material from damaged or drowned recorders, that kind of thing. I’m not involved in internal investigations, except for one instance.
A couple of years ago, an officer contacted me after hours and requested some assistance with a damaged covert surveillance device. I was simply to extract the recording, convert it to a permanent digital format, and return it, there was no need to analyse or piece together the material. In fact, it was made quite clear that this was an unusual situation, which naturally piqued my curiosity.
While I can’t describe everything I heard as part of the recovery, I *can* say that the recording was of a social event (a back yard BBQ) where a number of officers (more than a dozen) were (how can I put this?) enthusiastically congratulating themselves on being acquitted, after an internal investigation, of using, er, “unusual tactics” when apprehending female drivers. In fact, to a man they had been wrongly acquitted, judging from the stories recorded.
I initially thought the recording was a joke, or a spoof or copy of a play or something like that; but there were a few indications that it wasn’t scripted, and the laughter was a bit too hearty for my liking. This particular recording was later used to reopen the case (the officer who contacted me later let me know what transpired), and I understand that each of the policemen in question received an appropriate sentence (or punishment, or whatever you call it). I never learned how the device had been damaged (backed over repeatedly by a vehicle, I suspected), but I’m fairly sure that recording wasn’t supposed to have survived. I don’t know how that fitted into the rest of the story, apart from it needing me to get involved.
I’ve got a very high regard for law enforcement officers generally in Australia. Most of them do and see things that most of us wouldn’t be able to deal with, physically or emotionally, and they do it for ridiculously low salaries. I’ve never met a cop I didn’t respect, even though mostly they were doing things to me that I didn’t necessarily agree with (I used to be a biker with a bit of a lead foot). But while I’d heard of many problems with corruption and so on within the force, I had until this time never actually heard or seen evidence that this happened.
I guess as a result of my little dabble in the sidelines, I’m on the side of keeping the keepers honest. It’s a difficult enough job already, and I’m certain that some members of the public will make it even more difficult with camera phones and so on (and we are sadly becoming a ridiculously litigious society). But preventing evidence of actual unacceptable behaviour from being captured or used would be a pretty bad thing, even though there’s obviously going to be many people abusing the privilege for personal gain or revenge or just plain stupidity.
I guess nothing these days is really clear cut any more, huh?
Actually I think it’s absolutely clear cut. I believe the majority of police in all nations get away with all kinds of illegal activity on a routine, daily basis. The Stanford Experiment showed how quickly people will start abusing power if they are protected from the consequences.
As a science-fiction writer, in the early 1980s, I envisaged a future in which small airborne video devices could evesdrop on people in all levels of government. This was of course a utopian vision. I did not imagine everyday consumers with iPhones; but the principle is the same. Technology has partially corrected an imbalance of power. It is one of the few pieces of wholly good news in the last 5 years or so.
It’s strange, isn’t it… Nearly everyone I know who knows of the Stanford experiment (myself included) swears black and blue that it couldn’t possibly happen to them, no way, no how, nuh-uh. I guess the determinant is the freedom from consequences. I’m not sure the ability to record law enforcers is without consequence, but it’s not hard to see the balance swinging that way. There was an awful lot of footage during a recent clash in Canada (I believe a photo of a couple kissing in the aftermath made the rounds), but that was used against the hooligans – who were by and large out to get the police, not protest anything.
[You really made my day, Charles… when I was a young’un, I remember reading “Twilight of the City” until my eyes bled… Now, just about every time I hear of some new modern idiocy, I get a flashback to sequences from Twilight… Anyway, it was so nice to be in virtual contact (however ephemeral) with one of my all-time favourite author-idols. I’ll stop there. Sorry. :)]
Judge Posner’s comments surprise me here. After the good work, at least in my opinion, he has done in the smartphone IP wars, I expected a little more of the man.
Several months ago I witnessed an innocent neighbor being tackled to the ground by several officers in front of his own 1st floor apartment home as his child looked on in tears and horror. Dad cried over and over again, “you can’t do this, my son is alone, his mother is not here right now, you can’t take me away from him”. Concentrating intently on memorizing this event as it was happening, I was hugely relieved to spot the 2nd floor tenant hanging out of his window filming the whole thing. The young father was only looking out his door, as were the rest of the neighbors, at the rental next door to him where a gang fight broke out. The trouble makers walked. I’m very confused these days about LEO’s. I want to trust and have confidence in them but seeing this first hand has shaken my foundation.
Is “eavesdropping” a legal term that has a different meaning from the general use? I would not expect recording of a conversation to which I’m a party to be “eavesdropping.”
My respect for the police is in direct proportion to my need for them and my use of them over the years. Precisely zero.