Issue link: http://lawandordermag.epubxp.com/i/109778
ON THE JOB NEWS EYE ON EDUCATION DISCIPLINE SOCIAL NETWORKING JUST HANDED DOWN MISSION CRITICAL SYSTEMS Citizens May Record Police in Public No big change in what most police already expected the public to be able to do lawfully. By Randy Means and Pam McDonald Randy Means is a partner in Thomas & Means, a law firm specializing entirely in police operations and administration. He has served the national law enforcement community full time for more than 30 years and is the author of ���The Law of Policing,��� which is available at LRIS.com. He can be reached directly at rbmeans@aol.com. In her 20-year career with law enforcement, Pam McDonald has been a patrol officer, a felony investigator, a felony prosecutor and a college professor in the area of police law. She currently serves as head of the Thomas & Means publications section and assists Randy Means in much of his work. She can be reached at pammcdonaldfirm@aol.com. M uch recent chatter in police circles involves the meaning of the recent Supreme Court action in ���that case that allows people to record the police.��� Just listening to the talk, one might conclude the Supreme Court suddenly allowed citizens to start recording the police. What actually happened is this. A lower federal appeals court struck down as unconstitutional an Illinois state law that attempted to prohibit people from audio recording police in public (ACLU v. Alvarez, 7th Cir. 2012) and the Supreme Court declined to review that decision. So, there is no new Supreme Court ruling that would affect law enforcement nationally and, in most states, none of this would be viewed as particularly controversial. Illinois Eavesdropping Law For many years, Illinois has had a law that (with a few exceptions) made it a felony to audio record a conversation without consent of all the parties, whether or not the communication was intended to be private. That law also made it a higher ���Class One Felony��� with enhanced punishment (4 ��� 14 years) if one of the individuals recorded was a police offcer conducting law enforcement duties. In reviewing this law, the federal appeals court wryly notes the Illinois statute ���does not prohibit taking silent video of police offcers performing their duties in public; turning on a microphone, however, triggers ���Class One��� felony punishment.��� 14 LAW and ORDER I February 2013 ���Eavesdropping��� Case The American Civil Liberties Union (ACLU) of Illinois planned to promote a ���police accountability program��� in the Chicago area, and part of their plan was to openly make audio-visual recordings of police officers conducting police business in public places within earshot of bystanders. The ACLU fled suit against the Cook County State���s Attorney (Chicago), asking the trial court to prevent the state court prosecutor from enforcing the Illinois ���eavesdropping��� statute against their members, arguing it violates First Amendment freedom of ���expression.��� The ACLU lost at the trial level, the court fnding there was no First Amendment ���right to record.��� The federal court of appeals, however, found that the trial court���s decision was based on a misunderstanding of First Amendment law and reversed it. According to the United States Court of Appeals for the Seventh Circuit: ���The question here is whether the First Amendment prevents Illinois prosecutors from enforcing the eavesdropping statute against people who openly record police officers performing their offcial duties in public.��� The Court then decided that in fact the First Amendment does prevent the prosecutor from punishing citizens for recording the police in public. They reversed the trial court���s decision and ruled in favor of the ACLU on its First Amendment claim, stating the ���Illinois eavesdropping statute restricts a medium of expression commonly used for the preservation and communication of ideas, thus triggering First Amendment scrutiny.���