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Nov 28 2012

Supreme Court Upholds Legality of Videotaping Police

This Monday, the U.S. Supreme Court declined to review a decision by the 7th U.S. Circuit Court of Appeals blocking the enforcement of an Illinois eavesdropping law. The broadly written law makes it a felony to make an audio recording of someone without their permission, punishable by four to 15 years in prison. In most states, like NY, only one person needs to consent, so the consent of the person who is recording it is enough to make it legal.

Many states, however, including Illinois, have “all-party consent” law, which means all parties to a conversation must agree to being recorded before recording it can be done. But in all of those states — except for Massachusetts and Illinois — the laws include a provision that the parties being recorded must have a reasonable expectation of privacy for it to be a crime to record them. Since police do not have an expectation of privacy while they are doing their work on the public street, video or audio recording of a police officers would not be banned.

The Illinois legislature took out “the reasonable expectation of privacy” exception specifically to make it illegal to videotape police officers. The Illinois law then became one of the most toughest eavesdropping laws in the country. It was often used to arrest people who attempted to record on-duty police officers and other public officials. Of course, it contains an exception to allow law enforcement to record folks without their consent for valid law enforcement purposes. It also exempts broadcasters.

The lawsuit that led to this decision was filed by the American Civil Liberties Union, which is planning a Police Accountability Project in Chicago that will involve recording police officers while they’re on duty. The ACLU wanted to be sure its employees and volunteers wouldn’t be charged with felonies.

In May of this year, The Federal Appeals Court that covers Illinois, the 7th Circuit found a specific First Amendment right to record police officers. The Illinois State Attorney General had actually argued that the law does not prohibit free speech, it merely makes it illegal to record audio. The 7th Circuit rejected that narrow approach, stating the obvious:

Audio and audiovisual recording are communication technologies,and as such, they enable speech. Criminalizing all nonconsensual audio recording necessarily limits the information that might later be published or broadcast—whether to the general public or to a single family member or friend—and thus burdens First Amendment rights. If as the State’s Attorney would have it,the eavesdropping statute does not implicate the First Amendment at all, the State could effectively control or suppress speech by the simple expedient of restricting an early step in the speech process rather than the end result. We have no trouble rejecting that premise.Audio recording is entitled to First Amendment protection.

It’s the second federal appeals court to strike down a conviction for recording police. In August 2011, the U.S. Court of Appeals for the First Circuit (covering Massachusetts) ruled that a man wrongly arrested for recording cops could sue the arresting officers for violating his First Amendment rights. That decision also found a broad First Amendment right to record on-duty government officials in public:

“Gathering information about government officials in a form that can readily be disseminated to others serves a cardinal First Amendment interest in protecting and promoting ‘the free discussion of governmental affairs.'”

The Supreme Court this Monday refused to grant certiorari (review) in the case. This means no opinion was written by the Supremes, the court just denied further review of the issue. Denial of certiorari also doesn’t necessarily mean the justices endorse the lower court’s ruling. It does mean, however, that at least six of the nine current justices weren’t so opposed to the ruling that they felt the case needed to be heard.

It is now technically legal to record on-duty police officers in every state in the country.Unfortunately, people are still being arrested for it and will likely continue to be arrested for it. Police officers who want to make an arrest to intimidate videographers can always use broadly-written laws that prohibit “disorderly conduct,” “obstruction of governmental administration” or similar ordinances that give law enforcement wide discretion. In fact, earlier this year I represented a man on Long Island who was arrested for disorderly conduct for videotaping officers during a drug bust occurring on a public street. The charges were subsequently dropped before he even had to appear in court. Yet, he was arrested, handcuffed, brought into the precinct and more importantly prevented from continuing the taping of the arrest. He was happy to not be charged and did not want to bring any more attention to himself, so he declined to bring a lawsuit or to make a public statement of any kind. Who won in that battle?

This decision does strengthen the right of citizens to videotape police officers in public. Let’s hope it also makes police officers more aware that courts will not support the arresting of individuals who are just exercising their Free Speech rights.

17 comments

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  1. Merci

    Since videotaping cops is legal cops are violating the law by arresting the public for this.
    Now the question is: When will a legal authority hold them accountable for false arrests?

  2. Oscar Michelen

    Good luck with that! Part of the problem is that the amount of damages awarded for these types of cases makes lawyers reluctant to bring them. Unless you can prove a true civil rights violation and get in to Federal Court, you are usually not awarded your attorney’s fees so that is another obstacle.

  3. Nay

    So we need lawyers that truly care about protecting the constitution and not just filling their pockets.

  4. Dr. Hubert Kleinpeter

    The Americans are in the grips of its own delusions and government lies. Always the obvious violations of the Creed of a society being assaulted and battered by the very entity (government) that claims to be the protector of those Creeds (Bill of Rights). Your society is the laughing stock of the World, but a deadly one that lectures about human rights which they deny their own people in the name of freedom: e.g., routine torture scandals, mass death by constant predatory war making, secret laws with shadowy courts which only a few select get to know of. Snowden revealed the truth of that deadly cartoon called America – that a deluded general is running his own fiefdom of spying on his own village in violation of the Creed. Obviously, the US and her racists European friends in tow, are a global threat to World Peace when she always “kicks-off” her marauding adventures with a bible, a gun and a bottle of whiskey.

    Dr. Hubert Kleinpeter

  5. Joseph Slabaugh

    Hello, a few years ago, I had a group of people living on my land, and in a trailer I owned, and one day while outside talking to some friends on that property, 9 Marshals showed up and wanted to arrest my tennent. I videotaped this, and a Marshal erased that video under the threat of me getting arrested if I dont allow him to do so. Do I have a case against these guys?

    My number is 567-203-7025

  6. Oscar Michelen

    Hello Joseph: You have three distinct problems: First you say it occurred “several years ago” so you are probably beyond the statute of limitation for suing any municipality that employed the marshals but you should check with a lawyer admitted to the State of Ohio for certainty. Second, you say you erased the video so all these years later it would be hard to prove your case at all. Third, there are really very little damages. Even if your rights were violated, you suffered no real harm other than the violation of your rights itself and the deletion of the video. Most lawyers who handle civil rights violations do so on a contingency basis meaning they only receive a percentage of the recovery so it will be difficult for you to find counsel.

  7. Dawson Dravis

    Can someone actually point the rest of us to the actual ‘law’…because I’m not finding it online…thanks!

  8. Oscar Michelen

    The law is found first off in the First Amendment to the Constitution that allows you to freely assemble on public streets. Not all law is found in code books. Judicial decisions are law as well. For specific law in your state, tell me what State you are in and I will point you to a particular case that applies there. For example, in Illinois, it would be the case I wrote about. The 7th Circuit is the Federal Appeals court that covers Illinois and what they say about someone’s Federal Constitutional rights can only be overturned by the US Supreme Court. Since they declined to hear the case, the decision discussed in the blog post is the law of the land in all the States covered by the 7th Circuit and is the only “law” you need. Hope this helps

  9. Ann Carpenter

    I am in New Hampshire and I would like the law code if possible and when it was enacted. I will then proceed to contact my elected officials to see what can be done to repeal it! Please email me as I am not sure I can find this site again ( I have too many bookmarks and out of sight out of mind also.) Thank you.

  10. Oscar Michelen

    Ann: Since New Hampshire is covered by the First Circuit Court of Appeals, the decision you need to read and rely upon is Glik v. Cunniffe 655 F.3d 78 C.A.1 (Mass.),2011. It is discussed briefly in my article and I am sure you can find it online. I also emailed this to you just now. Good Luck

  11. Dr. Hubert Kleinpeter

    Why is it illegal, unethical for citizens to eavesdrop, but the American police state can do so? In the ancient days of cooperative survival, members of a village lived their creed; their religion; their beliefs. What kind of society with great fanfare proudly announces their Bill of Rights, their creed, yet daily, habitually violates the creeds? I believe this particular society is a disturbed, violent, and usurious enterprise; starting first with their own citizen slaves. I am a teacher in China, and today in class, we joked how the US Government tortures and spies more on their own people than here. This particular deluded society lies to itself, which most other nations see through, as well as many powerless citizens. Who runs that country, the President. I think not, when the NSA declares Obama did not know about spying on people without due cause. In other countries its called a military dictatorship; and the the Americans have cleverly disguised it in civil government.

    Dr. Hubert Kleinpeter, Canton, China

  12. Illinois Corruption

    The illinoiscorruption.net has issued an informational video and a press release, to help the media and the general public in the upcoming oral argument at the Illinois Supreme Court hearing in Annabel Melongo’s eavesdropping case. The hearing is scheduled for January 14th, 2014, at the 18th floor of the Michael A. Bilandic Building, 160 N. LaSalle Street, Chicago at 9.30 am.

    Video: http://www.illinoiscorruption.net/common/video-pressrelease.html
    Press Release: http://www.illinoiscorruption.net/common/pressrelease.html

    Please support this cause. The Illinois Eavesdropping law at its very core creates a two-class legal system wherein the conversations of the powerful and well-connected are protected to the detriment of the less powerful. The upcoming oral argument presents a unique opportunity for the common citizen to re-establish that legal balance that will unequivocally establish a right to record public officials in their public duties.

    Therefore, please contribute to this all-important hearing by either attending it, writing about it, spreading the word or just forwarding the below video and press release to anybody who might be of any help.

  13. Randy Mccloskey

    “Here is what we do know: the Fourth Amendment does not permit the police to enter anyone’s home without a warrant unless there is a real emergency – even if it’s called a ‘welfare check,’” he wrote.
    Read more at http://www.wnd.com/2012/12/family-sues-cop-for-forced-entry-into-home/#wHuZGUgJ7sgDekGL.99

  14. Michael

    how about in Michigan??

  15. Oscar Michelen

    The Constitution is a Federal document. A state can grant MORE rights than the US Constitution but it cannot grant less rights.

  16. Ray Brown

    One thing people don’t realize is that you have a First Amendment right to make one party consent audio recordings of police acting officially anywhere. It’s ridiculous to thank that right is limited to some specific area. The courts only answer questions specifically else as in Glik v Cunniffe which referenced other cases-not involving police-that spelled out First Amendment rights. Like the Glik cops some other dumb cop will not comprehend that and will violate someone’s rights some distance from the curb.

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