Illinois Prosecutor Invokes Homeland Security in Recording Cops Case

Christopher Drew, whom I've written about here and here, is a Chicago artist who was arrested in December 2009 for recording his arrest by a Chicago police officer. Drew set out to get arrested. He was protesting a Chicago city ordinance that prevented him from selling art on city streets without a permit. He says he recorded the arrest to document it for the lawsuit he was planning to file to challenge the ordinance.

But as regular readers will know by now, it is illegal to record anyone in Illinois without their permission. And that includes on-duty police officers in public spaces. So Drew has been charged with felony eavesdropping. He faces 4-15 years in prison if convicted.

Drew has already challenged the law on constitutional grounds in Cook County Circuit Court. He lost. But he had another hearing last month in which he argued that the contents of his recorder shouldn't be admissible in court because they were obtained by police without a warrant. Regardless of the merits of that particular argument, some of the arguments raised by Cook County Assistant State's Attorney Jeff Allen during that hearing are ridiculous. (You can read the transcript here (PDF)).

As it turns out, the officer who confronted and arrested Drew was doing foot patrol on a counterterrorism beat. (Why the officer would put that charge on hold to take the time to confront and arrest a guy for selling $1 art is a good question for another time.) He doesn't come right out and say it, but Allen insinuates throughout the hearing that Drew could pose a terrorism threat because his recording device may have picked up audio from the counterterrorism officer's radio. Allen also says at one point that because the device was still on Drew's person and recording once he was taken to the police station, Drew had effectively planted a bug in the police department.

It's a tortured, asinine argument, but you can see how it might have some sway with a jury. We can't have people recording cops, even recording their own arrests, because the recording devices might pick up police chatter about drug informants, counterterrorism strategies, and other secret information about tactics and undercover operations.

As I've written before, this law, and these arguments in particular, are especially troubling in Chicago, which has seen a number of police scandals over the years, including several in which audio and video recordings have shown police to have lied, both in court and in police reports. There's also a still-unraveling scandal going back to the 1980s in which police officers beat and tortured suspects in the police station.

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  • Destrudo||

    Chicago? Nuke the site from orbit.

  • hmm||

    It's the only way to be sure.

    But Chicago has a nuke ban, so we can't do that.

  • PIRS||

    Of course! Laws prevent things from happening! So all Chicago has to do now, if it wants to prevent murder, is to pass a law against it! It will be paradise then!

  • ||

    chicago to extrudo - say that to my face punk.

  • Destrudo||

    Trollololololo

  • The Gobbler||

    Look at what just tumbled out of my ass!

  • Barely Suppressed Rage||

    Ewww... ick! Jesus, dude, fiber - I mean, seriously, start looking at what you eat.

  • Cecil||

    That's the kind of incendiary eliminationist rhetoric that makes paranoid psychotics kill people.

  • Destrudo||

    Are you lean? Are you mean? Are you paranoid schizos? THEN GET ON THE READY LINE!

  • ||

    If the information over the police radio is sensitive national security information, why do they have it on high volume at all times, so that anyone walking by the police officer can hear it? They should have low-volume earpieces like the Secret Service guys do.

    Also, anyone with a police band scanner can hear this information anyway.

  • Cecil||

    Clearly the solution is to ban police scanners. And make it illegal to be within hearing distance of a cop without earplugs in place.

  • In Time Of War||

    Doesn't go far enough. We need those little flashy things from "Men in Black" that erase memory.

    I once considered living in Chicago. I'm glad to see I made the right choice.

  • robc||

    If the information over the police radio is sensitive national security info, it should be encrypted.

  • ||

    This is no time for half measures.

    We need to ban anyone from carrying a recording device within 1000 feet of a police officer.

  • cynical||

    We should simply ban anyone from being within 1000 feet of a police officer. Or, for ease of enforcement, ban police officers from being 1000 feet of anyone.

  • ||

    How about banning police officers? It would save money.

  • cynical||

    The union would never agree to it.

  • Kristen||

    They would if it were "permanent paid administrative leave"

  • ||

    But, they're our last line of defense against street artists and other terrorists!

  • Joe M||

    We need to ban anyone from carrying a recording device within 1000 feet of a police officer.

    Fixed your three-quarters measure.

  • No Name Guy||

    "But as regular readers will know by now, it is illegal to record anyone in Illinois without their permission."

    Hmmm... I guess they're arresting and throwing all kinds of radio and TV reporters in jail, since, fundamentally, what they do is to record people without their permission.

  • ||

    Interesting point. Every time a TV station does a standup on location, it apparently commits multiple felonies.

  • ||

    Freedom of press dude. Look at a Constitution.

    /douchebag_reporter_guy

  • No Name Guy||

    And how is that (a press person doing the recording) any different from Joe Six Pack with a crack berry or Jane Busybody with her I Phone recording the cops (or their school board meeting, or the town council meeting, or...)?

    Something about equal protection under the law and all....

  • ||

    As I've said before, making it illegal to record a cop, especially one making an arrest, means the state has a law against gathering evidence to be used in your defense.

    I would think there's a Constitutional problem with that.

  • ||

    Allen also says at one point that because the device was still on Drew's person and recording once he was taken to the police station, Drew had effectively planted a bug in the police department.

    It's a rhetorical question, to be sure, but...

    Are these people really this stupid?

  • No Name Guy||

    Yes. Yes they are.

  • ||

    By "stupid" I probably really meant "deranged".

  • ||

    Its a comment on the judicial system, as well, that the judge didn't look over this charge, dismiss it with prejudice, call the prosecutor into his office, and tell him that if he ever filed a criminal case as fuckwitted as this again, he would be held in contempt of court and reported to the state bar for an investigation of fitness to practice law.

  • ||

    You don't know many judges, do you? Most judges started out as lawyers, which is like saying most murderers started out stealing penny candy.

  • ||

    You don't know many judges, do you? Most judges started out as lawyers, which is like saying most murderers started out stealing penny candy.

  • ||

    Sorry for the double post. I blame the climate of hatred.

  • gnut||

    The solution to this, from the police-state point of view, is obvious.

    Manufacturers of these recording devices need to include a "terms of use" that prohibits the owner from recording law enforcement.

    Ten years ago, courts required affirmative evidence of agreement to form a contract. No court had enforced a shrinkwrap license, much less treated a unilateral statement of preferences as a binding agreement. Today, by contrast, it seems widely (though not universally) accepted that if you write a document and call it a contract, courts will enforce it as a contract even if no one agrees to it. Every court to consider the issue has found clickwrap licenses, in which a user clicks I agree to standard form terms, enforceable. A majority of courts in the last ten years have enforced shrinkwrap licenses, on the theory that people agree to the terms by using the software they have already purchased. Finally, and more recently, an increasing number of courts have enforced browsewrap licenses, in which the user does not see the contract at all but in which the license terms provide that using a Web site constitutes agreement to a contract whether the user knows it or not.

    Since such a terms of use would be enforced as a private contract, in which the purchaser waived his rights, constitutional and civil liberty concerns need not apply.

    Even if the government were to provide incentives for manufacturers to include, or actually mandate, these hypothetical "contracts", the argument that "the owner agreed to it" could be used against the owner in any civil or criminal action.

    And because such a hypothetical ban on recording law enforcement would be the result of a privatized adhesion contract "agreed" to by the owner, libertarians would have no grounds to object.

  • دردشه عراقية||

    Thanks

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