No big change in what most police already expected the public to be able to do lawfully.
Citizens May Record Police in Public
By Pam McDonald and Randy Means
Much 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 officer 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 officers performing their duties in public; turning on a microphone, however, triggers ‘Class One’ felony punishment.”
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 filed 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 finding 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 official 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.”
Essentially, the federal appeals court held that First Amendment “freedom of speech” includes the exchange of ideas through recording media, and protects a citizen’s right to record the police conducting law enforcement activities where they can be seen and heard by the public.
Police Response to Private Recordings
Many police officials naturally are sensitive to the idea of being recorded by private citizens. When law enforcement officers hear of members of the public “recording the police,” many imagine the worst. The mention of anyone videoing the police conjures up memories of the endless media coverage that comes with the recording of police doing apparently bad (sometimes really bad) things.
As old as the story is, it’s still hard not to think of the splotchy home video of “the Rodney King beating” (as the clip was named) whenever there is talk of someone recording the police. Police agencies have suffered long-term detriment from relentless media coverage of what might otherwise be relatively minor episodes of police misconduct, if misconduct at all.
Considering the damage that police associate with these private recordings, it’s understandable why a law prohibiting the public from recording police activities might draw some immediate support in law enforcement circles. It is also true that, after some thought, many police officers (citizens themselves) do not support such broad restriction of citizen behavior. There is little if any legal justification for attempting to distinguish between visual and audio recording the way the Illinois statute did.
There may be cause for other legitimate discussions about the dangers of disclosing police tactics, obstruction of justice, or inappropriate recordings of police conversing with a witness or suspect, but as a matter of societal interests and freedom, recording of public behavior of public officials shouldn’t be made a crime, and most police officials know and accept that.
Why the Fuss?
Maybe part of it is that the ACLU was involved and another part the general sensitivity issues discussed above but, despite the publicity and related talk about the courts allowing the public to record the police, the “eavesdropping” case doesn’t cause big change in what most police already expected the public to be able to do lawfully.
In its simplest form, this “eavesdropping case” involved a lower federal appeals court decision striking down an Illinois law as unconstitutional because the law prohibited citizens from audio recording the police in public and called for serious punishment for offenders.
The Supreme Court merely declined to review that lower court’s decision, which could be viewed as the Supreme Court’s tacit approval of it, but even that may not be so. The Supreme Court chooses to actually take on only a tiny percentage of the petitions for review, which it receives and it declines review most of the time. This does not necessarily mean they agree with the lower court. What is certainly true, though, is that in most states citizens have been lawfully recording police activities in public as long as they’ve had the technology to do so and this matter is old news in those many jurisdictions.
The law that was struck down in this case was, in a way, “too good to be true.” It’s hard to imagine that anyone really expected the courts to support a law that called for up to 14 years in prison for making an audio recording of the police in public. Many thoughtful police officers don’t even want such a prohibition (we are a land of freedoms after all), they just want to avoid some of the humiliation that comes from publicizing what appears to be bad police behavior.
Discussion of these issues conjures up bad memories and understandably causes some professional anxiety but, in fact, far more police officers have been redeemed by recordings of them in action than have ever been condemned by such recordings.
Obviously, in most states and countless cases, police themselves have chosen to record much of their public business, including conversations, because such recordings usually protect them from false allegations and help in criminal prosecutions. Many would say the solution to the “problem” discussed in this article is not to outlaw the recording of police behavior in public but for police to refrain from behaviors that make the issue so sensitive.
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 firstname.lastname@example.org.
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 email@example.com.