Judge Posner Fears 'Snooping Around by Reporters and Bloggers' If People Are Allowed to Record the Police

Yesterday the U.S. Court of Appeals for the 7th Circuit heard arguments for and against the Illinois ban on audio recording of police in public places. Illinois has one of the country's strictest eavesdropping statutes, requiring consent from all parties even for recording police on the street while they are performing their official duties. Doing so without permission is a Class 1 felony punishable by a prison sentence of up to 15 years, exposing people to the risk of arrest and prosecution for recording public events such as protest rallies or their own encounters with the police. Meanwhile, the police are free to record citizens during traffic stops or other interactions. The American Civil Liberties Union of Illinois is asking the 7th Circuit to correct this double standard by barring prosecution of people for exercising their First Amendment rights by "recording police officers performing their public duties in a public space." The group's legal director, Harvey Grossman, explains:

In order to make the rights of free expression and petition effective, individuals and organizations must be able to freely gather and record information about the conduct of government and its agents—especially the police. Organizations and individuals should not be threatened with prosecution and jail time simply for monitoring the activities of police in public, having conversations in a public place at normal volume of conversation.

But the Chicago Sun-Times reports that one member of the 7th Circuit panel seemed deeply troubled by the prospect of allowing citizens to monitor the police, instead of the other way around:

"If you permit the audio recordings, they'll be a lot more eavesdropping.…There's going to be a lot of this snooping around by reporters and bloggers," U.S. 7th Circuit Judge Richard Posner said. "Yes, it's a bad thing. There is such a thing as privacy."...

"The gangs who are interested in monitoring each other will rejoice in your case," Posner told the ACLU.

He said gang members who want to snoop on each other could start secretly recording conversations and say they're protected because they were taping suspected police informants.

They could say that, but they'd be wrong, since they would be recording private citizens in private places, as opposed to public servants in public places. There is indeed "such a thing as privacy," but an arbitrarily defined legal right to privacy that is unmoored from property rights and contract rights is a menace, as this case shows. Even worse is a concept of privacy that offers less protection to ordinary citizens than it does to police, who have far more power to abuse.

The Sun-Times cites a recent case (noted here by Radley Balko and Nick Gillespie) that illustrates the dangers of these lopsided rules:

Last month, a 20-year-old Indiana woman was brought to trial on charges that she secretly recorded police officers. The woman, Tiawanda Moore, said she taped internal affairs officers on her Blackberry because they were trying to convince her to not go forward with a sexual harassment complaint.

Moore said she didn't know about the Illinois Eavesdropping Act, which prohibits the recording of any private or public conversations without the consent of all parties.

A jury acquitted her.

One more thing: Posner's speculation about the dire consequences of letting people record the police is not backed up by the experiences of other states, the vast majority of which already allow such recording. "The law in Illinois is an aberration," Grossman notes. "It's virtually unheard of for law enforcement officers in other states in our country to be able to use eavesdropping laws as a weapon against citizens who seek to do nothing more than record their activities and oral expressions." 

The ACLU of Illinois has more on its case here. If you have not read Balko's revealing January cover story about "The War on Cameras," you should do so without delay. Reason.tv covered the subject in May:

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  • wef||

    Posner, power worshipper?
    Posner, police-state apologist?
    Or Posner, posing puzzling points?

  • The Hamilton||

    How about just plain old Posner The Asshat?

    Excuse me...I'm fixin' me up a bacon sammich....

  • TRTB||

    Posner, prick.

  • ||

    "If we allow people to do it, more people will do it."

  • mad libertarian guy||

    Remember: in this country being legal is exactly the same as endorsing.

  • ||

    Clearly he was asleep for most of the law school course on constitutional law.....His comment should be sufficient to remove him from the bench.

  • ||

    Clearly he was asleep for most of the law school course on constitutional law.....His comment should be sufficient to remove him from the bench.

  • ||

    damn internet squirrels....excuse the double posting

  • Menthols Washington||

    I think that bared repeating anyway.

  • ||

    What's bared repeating? Is that a euphemism for porn?

  • Art-P.O.G.||

    'Beared' repeating of course brings to mind an ursine with some sort of speech impediment.

  • Art-P.O.G.||

    'Bore' repeating brings to mind Ben Stein in Ferris Buehller's Day Off.

  • ||

    Boer repeating means fighting those pesky South Africans yet again.

  • Art-P.O.G.||

    Indubitably.

  • Tex Winter||

    I find your double-posting offensive.

  • Heroic Mulatto||

    What they really fear is more evidence of the power of Caribbean riddims upon policemen.

    It works on Bobbies too!

  • Heroic Mulatto||

    God dammit! They ate my first link!

  • ||

    Awkward.

  • ||

    I used to be in a krewe for the Gasparilla and other parades here in Tampa. Pretty shocking stuff goes on, but let me tell you, the cops are part of it. Which, by the way, I think is perfectly fine, but it is a little hypocritical, because they are the same people who will crack down on it when the city decides tits must not be flashed this week.

  • ||

    I make it a rule not to flash during Gasparilla day parade, as there are children, but at the night parade, when I'm in Ybor, I don't feel...constrained. After all, that's why they have the separate parades. At the night parade, this fat female cunt cop saw me flash and told me if I did it one more time that she would arrest me. Later on, a whole group of pirates surrounded me in a tight circle and tried to get me to flash. I refused because of that fuckin cunt, and they peristed, and then she marched up to the circle, yanked them away from me, grabbed their beers and poured them out. The crowd on both sides of the street were so pissed off at her that every time she bent over to pick up beads on the ground, everone in the crowd pelted her huge target of an ass with beads.

  • ||

    And as for cops participating, one time when I was in NO for Mardi Gras, one of the cop cars IN THE PARADE (there are usually patrol units between every handful of floats or so...) had four cops in it. It stopped in front of me, a cop in the front seat pointed at me and called me over. He then held up a nice set of beads and said, "Show me your tits." I was taken aback, and certainly didn't want to tempt fate by flashing someone who could arrest me. Also, I was in the Garden District, which is full of families. I only flash in the French Quarter, away from kids. I said, "You're a cop." His answer: "So what?" I just refused by saying there were kids around. He actually gave me the beads anyway.

  • Almanian||

    A jury acquitted her.

    AND NOTHING ELSE HAPPENED!

  • ||

    Happy to see that my little tagline has become a meme here at H&R. Clearly I touched a nerve.

  • rsi||

    Just not the way you intended.

  • Derp Durr Hurr Derp Durr Hurr||

    Clearly I touched a nerve.

    And nothing else happened.

  • ||

    And nothing else happened.

    Please, the tagline is, "Nothing else happened."
    No superfluous "And."
    Thank you for your support.

  • ||

    The nerve was not unresponsive.

  • ||

    The nerve was not unresponsive.

  • ||

    You can say that again!

  • ||

    Apparently, though, the server squirrels were unresponsive.

  • ||

    How is this even debatable? I mean, okay, if someone is actually physically interfering with an arrest by shoving a camera into the cop's face, maybe I could see some objection, but the mere fact of recording a public act? Sorry, there's boatloads of caselaw saying that precise act is okay. So what if the cops are the subject? In fact, I'd say that's even more defensible, as a public official in the process of acting in his official capacity has no privacy rights.

    This is an absolutely insane trend, and it shows how far we've gone towards an unfree society that it's even debatable.

  • { }||

    How is this even debatable?

    It isn't. Let's debate it anyway.

  • Chupacabra||

    My guess is that the judges are being paid by the police unions.

  • ||

    paid=elected
    paid=protected
    The cops are the mechanism for enforcing the court's rulings. Without police action, the court is powerless.

  • Abdul||

    Pro Lib is right. All states have some law about "interfering with a police investigation." If your paparazzi tactics interfere with police work, you can be charged. I think that could even include using cameras or recorders to pick up cops' deliberations that were meant to be private (e.g., they walk back to the cruiser to decide who they want to question, or who they should arrest and who should be let go).

    Anything else that can be observed by ordinary means by ordinary by-standers should be fair game.

  • ||

    HeY ProLib, remember that guy in our area who was recording chicks' asses in Target. He got caught and there were close-ups of asses all over his phone or vid camera. In the end, they couldn't charge him with anything because it was all recorded in public. I assume there was audio recordings with the vids, though I don't think there were important to the perv.

  • ||

    Perfectly legal, if creepy. The audio can be another story, as Florida is a two-party consent state.

  • No Name Guy||

    In all of these cases, I'd LOVE to see it when Action News at 6PM shows up with their cameras at some big public gathering and is taping away, including taping of cops.

    Now - Why is that any different than me with a cell phone camera taping away? Answer: It isn't, and in neither case is it a crime.

  • ||

    I'm not 100% sure about this, but I think there's also some pretty good law on the freedom of the press not being a special right of established press. In other words, we all have whatever rights the "press" have under the law. This may stem from the fact that the government can't really determine what is and isn't press; otherwise, you end up with press that say bad things about the government losing their status as legally recognized press.

  • Almanian||

    Well, until Sean Penn totally Chavezes the US - THEN only card-carrying media will be recognized.

    THAT will be a banner day.

  • ||

    correct. there's also been recent case law on this covered at volokh.com

    there are some very narrow exceptions to this concept, but it'[s a general truism

  • Fist of Etiquette||

    One must consider the "press" in freedom of the press as the printing press (and assumption of all like mechanisms that followed), not the occupation.

  • ||

    I'm remembering most of this from a First Amendment seminar in law school. I think we decided that the freedom of the press was really just a subset of the freedom of speech.

  • ||

    that is correct. it's not an institution, it's an activity

  • Anonymous Coward||

    Shorter Richard Posner:

    Sorry, but we can't allow you to have freedom. Some bad person might do some bad thing at some unforeseeable point in the future.

    And an extra serving of DERP on "gangs might record each other and say its protected." Cute, but not the controversy at hand. The question is, can a citizen record a public official, paid with public money, in a public place?

  • Almanian||

    God DAMN it, Sullum, now I can't get this fuckstick Posner out of my head.
    Therefore.....(clears throat)....

    SUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUULLUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUU

  • In Time of War||

    It's tired, I know, but:

    If they have nothing to hide, they have nothing to fear.

  • ||

    we need MORE snooping around by reporters, bloggers, and average joes.

    open govt. is a good.

    looking into what govt. does is a good

    GOOD cops support people recording them.

  • Chupacabra||

    "GOOD cops support people recording them."

    Let us know when you find one.

  • ||

    well, reason's own nick gillespie says MOST do...

    "Most law enforcement people are upstanding in executing their duties (and they welcome and sometimes even insist on surveillance"

  • ||

    Ah, yes. The Appeal to The Jacket fallacy.

  • Art-P.O.G.||

    You've got to admit it's a pretty awesome fallacy. No homo.

  • ||

    suck it!!!

    appeal to the jacket = teh awesome

  • ||

    Which is the flip side of Kneejerk contradicting Lord Doomcock fallacy.

  • Jerry||

    Wasn't there a link on Reason to some California cop who had no trouble getting filmed when he pulled someone over? Nothing else happened...

  • ||

    heck, i was filmed (that i know of) twice in one week.

    it's common as hell.

    apart from that reason link (which i applaud them for showing), there are literally thousands of times a day cops are filmed and have no problem with it whatsoever.

    there absolutely are abuses, both in the law (in those states that prohibit it) and in practice (those cops that act regardless of the law, which in some cases is unclear, but policy should ALWAYS be to allow filming if they aren't interfering )

    as gillespie says, most cops are good cops and most cops have no problem with filming

    i don't. i just make sure i don't pick my nose unless i am sure there are cameras around.

    that's about the worst thing an honest cop can fear from filming

  • Federal Dog||

    There are plenty of good cops. That is why I hate the bad and stupid ones so much.

  • Art-P.O.G.||

    What Federal Dog said.

  • Fluffy||

    If anyone who audiotapes any person anywhere in Illinois without their consent is subject to arrest, why can we just follow news crews around in Chicago, talk in the background while they're taping their reports, and then demand their arrest?

    And why can't we just go to touristy places in Chicago, find some tourist taping, and do the same thing?

    Why is it only the fucking pigs who possess this privilege?

  • ||

    Only three states actually make it illegal to record police (instead of some asshole cops just trying to claim it is)-- Illinois, Massachusetts, and Maryland.

    Interestingly, one thing all three have in common is legislative domination by Democrats for many years.

  • ||

    i am so entirely UNshocked by that.

  • Brian D||

    "Only three states actually make it illegal to record police (instead of some asshole cops just trying to claim it is)-- Illinois, Massachusetts, and Maryland."

    Sadly, New Hampshire is also on that list, at least as far as audio recordings go.

    http://www.techdirt.com/articl.....stop.shtml

  • BakedPenguin||

    The good news is that NH cops are going to have to cut that shit out.

  • ||

    And after living in NH for 10 years I had no idea until you told me. Go figure.

  • Deja Moo||

    Interestingly, one thing all three have in common is legislative domination by politicians for many years.

  • ||

    Is that similar to cases where politicians illegally order police to toss people out of meetings, and the police just bow to 'officials' and do it without any legal justification other than 'important person said to duhh'?

  • Federal Dog||

    You apparently missed the recent Glik case.

    Only secret recording of oral communications is illegal in MA.

  • ||

    yup, as long as you aren't surreptitiously recording, glik protects you, as i understand it

  • Federal Dog||

    The state wiretapping statute protects you. Just make sure to hold that camera prominently so that no one can claim secret recording.

    Glik was about the liability of officers arresting and charging Glik without first familiarizing themselves with applicable law. It followed (in federal court) after the state court summarily dismissed the groundless wiretapping charges.

  • ||

    iirc, glik ALSO protects you openly recording, regardless of state law.

    i'd have to review some volokh.com posts to be sure, but iirc (and it's a big "if" ) that was the thrust of the commentary.

    surreptitious recording can still be prohibited

    oh wait, i just looked it up.

    i was right :)
    http://volokh.com/2011/08/29/f.....in-public/
    "to be sure, the right to film is not without limitations. It may be subject to reasonable time, place, and manner restrictions. We have no occasion to explore those limitations here, however. On the facts alleged in the complaint, Glik’s exercise of his First Amendment rights fell well within the bounds of the Constitution’s protections. Glik filmed the defendant police officers in the Boston Common, the oldest city park in the United States and the apotheosis of a public forum. In such traditional public spaces, the rights of the state to limit the exercise of First Amendment activity are “sharply circumscribed.” Moreover, ... the complaint indicates that Glik “filmed [the officers] from a comfortable remove” and “neither spoke to nor molested them in any way” (except in directly responding to the officers when they addressed him). Such peaceful recording of an arrest in a public space that does not interfere with the police officers’ performance of their duties is not reasonably subject to limitation."

  • Federal Dog||

    That's the First Amendment argument key to the federal liability claim, not the actual wiretap argument.

  • ||

    fair enuf

  • criminal gangster||

    I would like to monitor rival criminal gangs to make sure our prices and SLAs for murder and kidnapping are competitive without crushing my margins. I would bug them but I really worry about wiretapping charge.

  • Paul||

    And if there's one thing we don't want, it's reporters snooping around our public officials.

  • sevo||

    Can't have reporters 'snooping around', can we?

  • sevo||

    Can't have reporters 'snooping around', can we?

  • sevo||

    "Your comment has been posted"
    Yep, twice!

  • ||

    Supposedly Posner has some street cred with libertarians, but every time I've encountered anything uttered by him, it is always as a sniveling apologist for the state and the status quo.

    He's on record as saying that failing newspapers should be funded by the state, so his credibility on speech issues is strained, to say the least.

  • Fatty Bolger||

    Supposedly Posner has some street cred with libertarians

    I think he indicated some tepid support for limited drug legalization once upon a time. That would probably explain it.

  • TRTB||

    "The gangs who are interested in monitoring each other will rejoice in your case," Posner told the ACLU.

    What the fuck does that even mean? We have to surrender this right so that... gangs... won't be able to... legally record each other? Huh?

  • mad libertarian guy||

    That sure is a mighty big man of straw there, ain't it?

  • ||

    Police are gangs, so we can't have police agencies monitoring each other?

  • Fist of Etiquette||

    That Sun-Times story is either very slanted or poorly written.

  • Mustakrakish||

    Since when did gangs care about legality?

  • ||

    Since Xeones isn't around here, someone has to say it:

    Yo, fuck Richard Posner.

  • ||

    Non-rhetorical question: Do you think there should be a right to record a jury deliberation. (For some reason that I can't rationalize (you should change the name of the magazine to Rationalization) my answer is "no." But I think you have a right to record a cop or congresscritter on duty. Go figure.

  • sevo||

    "Do you think there should be a right to record a jury deliberation."
    VERY interesting question.
    Yes, I do.

  • ||

    i think not. for several reasons. but recording cops, or anybody else in public (or cops recording you in public, like on their traffic stop) no problemo

  • sevo||

    "i think not. for several reasons."
    OK, my reason is that those folks are deciding the (possibly nasty) future of some one, and recording it might make you think twice when you open your mouth.
    Yours?

  • ||

    i don't think the process could proceed as well IF the jurors knew they were being recorded, and especially - broadcast.

    i don't want people debating the merits of evidence, their perception of credibility or lack thereof in witnesses, etc. to have to worry about what others watching them outside the jury room will think about their statements etc. during their deliberations, because it will necessarily change their deliberations (not to get all quantum physic'y and stuff, but...)

    i just think it would interfere with their perception of freedom, at a minimum, and i want them making the arguments their hearts and heads guide them to, NOT the ones they think will look best on teevee, or in soundbites, etc.

  • EDG reppin' LBC||

    I don't think they need to film jury deliberations. My reasoning is that the quorum of twelve peers acts as sort of check on faulty logic. That is, the eleven other members of the jury will call bullshit if one member is biased, or tainting the process. Now if there only two jurors per trial, it would be another story.

  • Typical Cop||

    If I arrrested them, they're guilty.
    If they weren't guilty, we wouldn't need a trial.
    Jury's are a waste of time.

  • ||

    i don't know ANY cop who thinks all arrestees are guilty.

    far fromt it. especially when we HAVE to make arrests in some cases, where the evidence is weak (e.g. DV's), there is no way on earth that anywhere near all people that get arrested are guilty

    that's some kind of weird stereotype you hold.

  • Typical Cop||

    guilty of something. not necessarily what we arrest them for.
    amirite?

  • ||

    no, often just plain fucking innocent.

    again, this a weird stereotype you hold. but whatEver

  • sevo||

    EDG and Dunphy:
    "My reasoning is that the quorum of twelve peers acts as sort of check on faulty logic. That is, the eleven other members of the jury will call bullshit if one member is biased, or tainting the process."
    Anecdotal, but my experience says otherwise; peer pressure for a bad decision. And, no, I remained the hold-out.

    "i just think it would interfere with their perception of freedom, at a minimum, and i want them making the arguments their hearts and heads guide them to, NOT the ones they think will look best on teevee, or in soundbites, etc."
    Agreed about 'soundbites'; editing (or 'enhancing') can make anyone look the fool, but I'm real uncomfortable about 'their hearts'.
    If your 'feelings' are part of your decision, you ought to be willing to defend them to others.

  • ||

    a juror NEED defend his decision to nobody except his conscience (which is why jury nullification also exists i might add).

    and it takes 12 to agree before somebody can be found guilty.

    we can disagree on this, but i think it's an awful idea to make jury deliberation subject to any sort of public disclosure UNLESS (and many jurors do this) they decide to discuss the whys and wherefores AFTER they make their decision.

  • ||

    dunphy - the only troll anywhere on the internet who actually is intelligent, reasonable, and adds substantially to the discourse.

    You hit on the heart of the matter with your mention of jury nullification, which is despised by most courts. If jury deliberations were recorded, judges could review them, find some justification to claim the jury excercised their right to nullify, and vacate the verdict, call mistrial, or punish the jury. I know, the power of juries to nullify is not only legal, it is the very reason juries exist. But, like posner claiming a perfectly legal activity should be illegal, judges will certainly try to emasculate juries. They do all the time. Just ask Dick Posner. One quick google of ' Richard Posner jury nullification ' will bring up a few links to show he opposes it in principle. What a surprise.....

    It is an interesting question Bob_R. I would say no to recording them as classifying this as free speech would eradicate the right to trial by jury.

  • Art-P.O.G.||

    I don't consider dunphy (or MNG) a troll. But to undercut myself, it took forever for me to see that joe from lowell was a troll.

  • ||

    ok, that's the worst insult ever. to be put in ANY proximity or comparison to MNG

    now THAT hurts!!!

    but thanks, suthenboy

    fwiw, i don't consider myself a troll because i dare believe that

    1) most cops are good cops
    2) don't rush to judgment in use of force incidents *(reasonoids tend to always believe anti-police claims and never believe police claims)
    3) cops who abuse their power should be punished, to include criminal prosecution when appropriate under the law

    etc.

    that's not trolling, unless one has to be an anti-cop kneejerk bigot to be a (not) troll

  • ||

    I assume you are the same Jack Dunphy that writes for Pajamas? Great article there on 'fast and furious' btw. See my comment.
    I only use the word troll because I suspect you are paid to come here and stir us up, and occasionally inject to reason into the conversation. You only show up for cop related stories, and since you are an 'expert' in that area.....well you see my reasoning. Considering how things go here sometimes, you are probably not getting paid enough. I did not mean 'troll' as an insult.

  • ||

    i am not jack dunphy. my name is an homage to him

    i am not paid to be here, but if you want to send me money, i'll accept.

    i don't limit myself to cop threads, but unlike many people here, i don't comment on stuff i know jackshit about.

    i comment on a lot of other stuff here, but primarily cop stuff, that is true.

    i'm also very into first amemdment and 2nd amendment stuff

  • ||

    ah, ok. Then you are a (not) troll. My apologies.

  • ||

    np. frankly, i'd be surprised if anybody CARED enough about reason.com to pay somebody to troll here.

    it's actually kind of a "you arrived" moment if it's true

  • EDG reppin' LBC||

    Groupthink is always a problem. I don't know if filming deliberations would eliminate that. Maybe juries should be moderated by a "jury-judge" that would ensure all jurists get to explain their reasoning. The moderator would not have a vote on the jury, but would guide the deliberations to discuss facts of the case, encourage individual input, and balance "stronger personalities".

  • ||

    um, no. not imo. fwiw, juries have foremen, but they are jurors.

    a fundamental concept of the jury system is that there is no hierarchy of outside power to tell them HOW to deliberate or what to think, accept, or reject while they are deliberating

    it's actually a very libertarian complete empowerment of the individual w/o state control thang, and arguably even has anarchist (god forbid) appeal

    the LAST thing i want is some agent of the state intruding on jury deliberations in ANY way

  • rsi||

    Jurors are not public employees, plus the results of their actions are made public.

  • Hugh Akston||

    Moore said she didn't know about the Illinois Eavesdropping Act, which prohibits the recording of any private or public conversations without the consent of all parties.

    A jury acquitted her.


    Jury Nullification FTW.
  • Hugh Akston||

    Oh god dammit.

  • cynical||

    "There's going to be a lot of this snooping around by reporters and bloggers"

    So, basically, he's explicitly citing hostility to a watchdog press as his justification for upholding the law. If I sucked that bad at my job, I'd be fired on the spot.

  • Dude - WTF?||

    "Privacy

    He famously opposed the right of privacy in 1981, arguing that the kinds of interests protected under privacy are not distinctive. He contended that privacy is protected in ways that are economically inefficient."

    Not famously enough for him to hear about it, I guess.

  • Dude - WTF?||

    Quote is from wikipedia.

  • Binky||

    having conversations in a public place at normal volume of conversation

    This string of expressions should keep the lawyers busy for years. For example, is a monolog a "conversation"? Are conversations on the "wrong" side of police tape being had in a "public place"? If deaf people are signing what does that do to the "normal volume" stipulation? Etc.

  • twv||

    The Panopticon's cameras are to go only one direction, mein Führer.

    Posner is reviving the worst elements of Benthamic utilitarianism.

  • ||

    Judge Posner is a smart guy. Smarter than me by a mile. How can someone that smart be this spectacularly and obviously wrong?

  • ||

    Maybe you should check your premise that Posner is "a smart guy."

  • mad libertarian guy||

    ^^THIS^^

    It's like continuing with the fallacy that Obama is a "smart guy". If everything you do as a result of all of those brilliant thoughts you have is a colossal fuckup, the notion that all of those brilliant thoughts aren't all that brilliant should be considered.

  • ||

    But Posner has written a lot of other brilliant stuff. And I generally agree with him. That is what makes this so inexplicable.

  • ||

    He's smart, but he loves his pet theories too much and isn't too concerned about their actual application in the real world.

  • ||

    no, the fundamental disconnect is the *usually liberal* idea that if we only let smart people rule us, everything will be ok

    i prefer the WFB jr. idea that i'd rather be "ruled" by names chosen at random from a phone book, than a bunch of academic elites.

    iow, the reality is this - one can be very very smart and still come to very stupid conclusions

    unless one tautologically defines being smart as only coming to smart conclusions, FOR the user's definition of "smart conclusions", one accepts that intelligence does not mean you will come ot the right decisions in politics. too much other stuff applies

  • Fatty Bolger||

    Sometimes I think that judges should be required to have an average IQ. Intelligent, articulate people tend to be far too capable of arguing from either side of a position, which means they tend to argue for the one they want, not the one logic lead them to. They don't hesitate to do it because they have been successful with it their entire lives. You can see it clearly in SCOTUS opinions. Hell, you can see it right here with MNG's comments.

  • ||

    There is some truth to that I think. Also, I don't think anyone should be on the bench for more than five or six years. The longer they are on there the more arrogant and detached from reality they become.

  • ||

    Ah, the Hruska* ploy. An oldie, but a goodie.

    *Roman Hruska. Wikipedia it.

  • hallllo||

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  • ||

    I think people are looking at the wrong Amendment.

    To me, the laydown argument is that your right to defend yourself in court. Since when are the police allowed to arrest you for preserving evidence that may be used at trial?

  • Brian D||

    I suspect they will point out that evidence illegally obtained by police (warrantless searches, etc.) is normally not admissible either.

    /devil's advocate

  • tarran||

    Evidence illegally obtained by the a private citizen is admissible - see the Von Bulow case regarding the black bag (privately searched without a warrant by his step-kids).

  • ||

    correct, unless there are specific statutes excluding it.

    for example, WA's 2 party consent law means that recordings taken in violation of it WHETHER by cops or others are not admissible in any criminal (and iirc) civil trial as well.

    but yes, generally speaking, absent statutory prohibitions, evidence illegally obtained by people NOT acting as agents of police is admissible

    if you burglarize your neighbor's home and discover evidence he is guilty of a crime, that evidence IS admissible.

    you are still culpable for the burglary, though

  • ||

    Yes, which is another argument for the anti-camera side.

  • BakedPenguin||

    Ha ha - the evidence obtained in the burglary could be used at your burglary trial...

  • ||

    But, of course, if a statute excludes you from introducing exculpatory evidence, that merely raises the question of whether the statute is Constitutional.

    I would take the position that the right to introduce exculpatory evidence cannot be abridged, and that source of the evidence is therefor irrelevant.

    By extension, of course, you cannot be prohibited from preserving (potentially) exculpatory evidence. And neither can anyone else.

    Yes, this is a double standard, as gathering and preserving incriminating evidence can be barred. I have no problem with that. Criminal trials aren't supposed to be a fair fight; that whole "beyond a reasonable doubt" thing isn't "fair" to the prosecution. And that's a good thing.

  • ||

    i would agree with you RC Dean. i was speaking of the law (in WA), not normatively.

    fwiw, the 2 party consent law in WA which applies to SURREPTITIOUS RECORDING (if you openly record, it's not a problem), does only apply to "private conversations"

    the case law generally states that cop/non-cop interactions in public and/or during investigations are not "private conversations" which is the correct analysis

    many cops are afraid to record , but imo if you are responding to a call, and record it surreptitiously, it's not a "private conversation" so the law does not apply

  • Typical Cop||

    This just in: dunphy arrests a lot of innocent civilians.

  • EscapedWestOfTheBigMuddy||

    I chuckled.

  • ||

    there is no cop alive who works patrol , who makes arrests, who does not sometimes arrest innocents.

    neither the law, nor common sense precludes that OR could preclude it

    DV's are the most obvious example, since we BY LAW have to arrest for many DV crimes given PC.

    in other cases, when the facts aren't crystal clear, we can always forego arrest and just do an investigation w/o arrest.

    but not in DV's

    DV's are also the only crime where in my state officers have "good faith" immunity from lawsuits *if* they arrest, but suffer significant liability if they do NOT arrest.

    and also the only crime where the law ENCOURAGES arrest when the facts are NOT clear.

    if the law required certainty of guilt (iow the person absolutely "did it" ) before arrest, there could be almost no arrests whatsoever, even of very violent criminals who have just committed heinous crimes

    it would be a terrible injustice.

  • EscapedWestOfTheBigMuddy||

    Yeah, we get it. That's what makes it funny.

  • ||

    Click the link to the next article if you want to see Chapman get raped by Rothbardians.

  • NotSure||

    Ok, so next time I see some cops brutalising someone I will first ask for their consent to record their actions.

  • Fluffy||

    i don't know ANY cop who thinks all arrestees are guilty.

    How do you explain Sheriff Joe down in Arizona then?

    Most of his prisoners are awaiting trial.

    But he wants them all punished in whatever ways he can devise.

    Seems to me that he can't possibly assert that all his prisoners require punishment without collaterally asserting that all of his prisoners are guilty.

  • ||

    I have worked in the criminal justice system. Have many friends who still do. Everyone cop, government and defense thinks the vast majority of arestees are guilty. You can't help but think that because most of them really are. That is just reality. And it makes you jaded as hell.

  • ||

    absolutely true. dershowitz and many other defense attorneys admit this

    i am saying MOST people who get arrested are guilty.

    but FAR from all of them

  • Doc||

    i am saying MOST people who get arrested are guilty.

    but FAR from all of them

    Obviously the weasel words give you an out here, but "far from all" generally equals "some" and not "most". Sounds like you're trying to have it both ways.

  • ||

    no, i'm not. MOST

    i would guess (depending on the crime obviously) about 90% are guilty iow actually did it

    in some crimes/arrests, though it's not definitional as to whether one is guilty (iow "did it") , it's as much a matter of how does one parse (somewhat unknown facts) as to who actually IS guilty, if anybody. many DV's and some fights fall into this category).

    then, there's the third category, where even IF they did what they are accused of, whether that meets the crime is problematic- these are cases like "ok, he did X, but is X really a violation of the statute and /or is the statute constitutional/proper, etc"

  • ||

    and to clarify, with some crimes, it is probably as low as 70% and others as high as about 95%+

  • ||

    Much as it pains me to defend the usually indefensible, but Maricopa County =does= treat convicts and "mere" detainees differently. Those awaiting trial are held in more-or-less standard facilities (though, granted, even the best such facilities are distinctly lacking in hominess); those serving an actual sentence are the ones sitting in Tent City or out on "chain-gang" duty. (Said duties generally consisting of nothing more depraved than picking up trash along roadways or after public events.)

    Yes, both classes -are- housed under similar general rules about media (I suppose a case could be made that leaving TVs tuned to TWC and C-SPAN all day runs afoul of the Eighth Amendment), and inmate clothing for both -is- designed to minimize inmate violence (horrors!), but these aren't exactly measures designed to punish (except in the sense of "failing to reward", I guess).

  • ||

    sheriff joe is a cop-o-crat.

    i do not include sheriffs, police chiefs, etc. as "cops" in the real sense, and i have been entirely consistent in that. many have little to no actual police experience.

    a cop-o-crat compared to a cop is like comparing the CEO of an auto company to an assembly line worker.

    cop-o-crats are politicians first, and MAYBE cops second.

    i have stated taht about a dozen times here.

  • Eduard van Haalen||

    "what if gang members record each other"

    vs.

    "what if cops prosecute a woman for a felony because she filed a sex-harassment claim against one of their own, they tried to get her to drop the charge, and she filmed them trying to obstruct justice?"

    No, too implausible.

  • AmericanConfuzious||

    Everything which is not allowed is forbidden.

  • mad libertarian guy||

    And everything that is allowed is specifically endorsed.

  • ||

    CHICAGO’S VIDEO SURVEILLANCE CAMERAS:
    A PERVASIVE AND UNREGULATED THREAT
    TO OUR PRIVACY: http://il.aclu.org/site/DocSer.....docID=3261

  • 16th amendment||

    What is the recording law in CA, say when you stopped by the CHP on a freeway? Is there a different law in San Francisco?

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