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.