Police

Off the Record

The Illinois Eavesdropping Act shields public officials from public scrutiny.

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On January 13, 2009, Michael Allison brought a digital recorder to the Crawford County Courthouse in Robinson, Illinois, where he was contesting a citation, because he had been told there would be no official transcript of the proceedings. He was immediately confronted by Judge Kimbara Harrell, who accused him of violating her privacy and charged him with eavesdropping, a felony punishable by up to 15 years in prison. 

Because Allison had recorded conversations about his legal situation with police and other local officials, he soon faced four more eavesdropping charges, raising his possible sentence to 75 years. The case against Allison vividly shows how the Illinois Eavesdropping Act, the target of a constitutional challenge that was recently heard by a federal appeals court, undermines transparency, civil liberties, and legal equality. 

The law's double standard is clear. It allows police officers to make audio recordings of their encounters with citizens but forbids citizens to do the same without permission. Recording police, prosecutors, or judges is a Class 1 felony with a maximum sentence of 15 years, while recording anyone else is a Class 4 felony with a maximum sentence of three years. 

The law seems deliberately designed to shield police from public scrutiny. In a 1986 case involving a motorist who recorded the conversation between two officers while he was being detained in their patrol car, the Illinois Supreme Court ruled that eavesdropping occurs only in "circumstances which entitle [the parties] to believe that the conversation is private and cannot be heard by others." The Illinois legislature responded by amending the eavesdropping statute to eliminate that requirement. 

Under current law, anyone in Illinois who records cops—even in public, even while they are performing their official duties—can be charged with a felony. Whether charges are brought may depend on how embarrassing the recording is. 

In August, for instance, a former stripper named Tiawanda Moore was tried for eavesdropping after she used her Blackberry to record a conversation in which she said two internal affairs investigators encouraged her to drop a sexual harassment complaint against a Chicago police officer. "I think it's something we can handle without having to go through this process," one investigator says in the recording. The jury acquitted Moore. 

Moore's prosecution is one of the cases that the American Civil Liberties Union of Illinois cites in its challenge to the eavesdropping law. It is asking the U.S. Court of Appeals for the 7th Circuit to rule that "the First Amendment protects people from criminal penalty for openly audio recording the conversations of police officers in the performance of their official duties in public places and forums, while speaking at an ordinary volume—that is, conversations where there is no reasonable expectation of privacy." 

The ACLU says this standard, which the vast majority of states have adopted, is required by the First Amendment. Last month, in an eavesdropping case involving a man who recorded an arrest on the Boston Common because he believed the police were using excessive force, the U.S. Court of Appeals for the 1st Circuit agreed that "a citizen's right to film government officials, including law enforcement officers, in the discharge of their duties in a public space is a basic, vital, and well-established liberty safeguarded by the First Amendment." 

Fortunately for Michael Allison, a Crawford County judge found that argument persuasive. "A statute intended to prevent unwarranted intrusions into a citizen's privacy cannot be used as a shield for public officials who cannot assert a comparable right of privacy in their public duties," Circuit Judge David Frankland wrote two days after the 7th Circuit heard the ACLU's arguments against the eavesdropping law. "Such action impedes the free flow of information concerning public officials and violates the First Amendment right to gather such information." Although Frankland dismissed the charges against Allison, prosecutors are expected to appeal, lest uppity citizens get the idea that it's OK to document the public performance of public officials.

Jacob Sullum is a senior editor at Reason and a nationally syndicated columnist.

© Copyright 2011 by Creators Syndicate Inc

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    1. You’re still dead, Suki.

      1. Empty talk from a series cancelled a century ago.

        1. You’re Reason’s own Tinkerbell.

          1. Tinkerbell was a hairy middle-aged man with at tenuous grasp of reality?

  1. .– …. .- – …. .- – …. -.– — ..- .-. –. — -.. — ..-. ..-. — — .-.. … .– .-. — ..- –. …. – ..–.. -. .- – ..- .-. .- .-.. .-.. .- .– — -.– .- … … –..– – …. . –. .- — . .. … .- ..-. — — –

    1. If you refuse to use proper punctuation, I can’t take your claim seriously.

    2. That’s a nasty SA arrhythmia you have there, sport.

    3. Your comment does not appear to be written in the English language.

    4. Translation:
      WHAT HATH YOUR GOD OF FOOLS WROUGHT? NATURAL LAW MY ASS,THE GAME IS AFOOT

      1. Scruffy must be a Ham. Just a guess.

    5. Dunbar, with the advent of the telephone morse code fell out of favor as a means of communicating. with the advent of the internet, civil speech is falling out of favor as well.

      Hat tip to the nerf herder for the translation indeed

  2. In early September, Allison’s story went viral. He was mentioned by the likes of Glenn Beck, the Drudge Report and the Huffington Post, prompting a flood of angry calls to local city and county offices from across the country.

    It’s a shame prosecutors can’t go after those angry phone harassers.

    1. Slow your roll, sport; we’ll get around to it.

  3. Although Frankland dismissed the charges against Allison, prosecutors are expected to appeal, lest uppity citizens get the idea that it’s OK to document the public performance of public officials.

    The nerve of such a plebe, asserting his rights and holding our betters to account. Tulpa, is this what you had in mind with your “vaccine of liberty?”

    1. according to the prosecutors every so often the Tree of Liberty needs to watered with urine…

  4. It allows police officers to make audio recordings of their encounters with citizens but forbids citizens to do the same without permission.

    This is just as it should be, since police officers are in positions of *authority*. You libertarians just don’t get it. /sarc

  5. I don’t understand… if the police are not doing anything wrong, they have nothing to fear.

    Oh wait, that line only works when the police search a law-abiding citizens car.

  6. He was immediately confronted by Judge Kimbara Harrell, who accused him of violating her privacy and charged him with eavesdropping, a felony punishable by up to 15 years in prison.

    I wonder how many times this stupid cunt ruled against a defendant’s Motion to Suppress “finding” there was no reasonable expectation of privacy.

    1. How the hell can a judge who is on the bench and hearing cases expect “privacy”? Is this some kind of fucking star chamber? No right to record criminal proceedings against you? I can’t believe anyone is saying this shit with a straight face.

      1. If the judge doesn’t get privacy protection some guy might sit in the courtroom at a stenotype machine recording everything she says. That would be unacceptable.

    2. Judge Kimbara Harrell is a cunt.

  7. Prosecuting citizens for protecting themselves from police or other government misconduct? We live in a police state! Why isn’t this bigger news?

    1. Because it’s not news.

      1. “However, in the end, what is really needed is a fundamental rethinnking of the notion that the state, rather than private markets, must monopolize the provision of justice and security. This is the fatal conceit.”

        Llewellyn Rockwell,
        September 27, 2011.

        We have to make it news every single time some public sector parasite crosses the line.

        1. But it’s not news. It is taken for granted that public sector parasites are going to cross the line.
          There is no public outrage because the public knows that they can’t do a damn thing about it.
          There is one set of rules for us, and another for them.
          The frontier is gone. The American Experiment is over.
          The brief blip of liberty that once was America will be nothing but a footnote in future history books as the humanity settles back into its default state of submitting to authoritarian rule.

          1. what about a Red Dawn rising? Is it in us?

            1. “Is it in us?”

              Nope. It’s been bred out of us. We’re the domesticated descendants of a wild and free breed of man which no longer exists on this Earth.

              1. Okay, I’ll buy that is the norm.

                However, are there no John Galts at the ready, prepared to lay waste to leviathan?

                1. There’s no Galt’s Gulch.

                  There’s no place to which we can to to escape.

                  There’s no dropping off the radar.

                  America “worked” because you could always “go West”.

                  Just look at history. When did the federal government explode? When was the frontier conquered?

                  I do not believe it is coincidence that the federal government’s growth accelerated once there was no place to run.

                  1. So, we are doomed, without any hope?

                    1. “So, we are doomed, without any hope?”

                      Yup.
                      This nation was formed based upon the revolutionary concept of liberty. You have unlimited rights until the government takes them away. You are free to do that which is not prohibited. It was a new concept.

                      Throughout history and in the rest of the world you start with no rights. Government grants you your rights. You are free to do what you are allowed to do and nothing more.

                      Liberty is fading, and once it is gone it will be gone forever.

                      The American Experiment failed.

          2. It IS news. Public recording of officials is a modern issue – it wasn’t even possible until modern times.

            Much as DNA testing has revolutionized and improved our criminal justice system, newer monitoring technology allows us to revolutionize and improve our monitoring of public officials. Attempts at halting this progress ARE major news.

            1. “newer monitoring technology allows us to revolutionize and improve our monitoring of public officials.”

              To what end?
              Police are captured on video beating people to death and they get paid vacations.

              The international symbol for “good idea” is outlawed and we put the same fools back into office.

              It doesn’t matter if we can monitor these people if we’re not going to hold them accountable for their actions.

              1. your handle is sarcasmic, not depressingmic.

                1. Sarcastic Irish are allowed to get depressed, right?

              2. If {post} contains “paid vacations” then call BIGOT

                call RULEOFLAW

              3. True, we desperately need accountability for our police and other public officials. It is essentially absent today. Police have carte blanche to arrest anybody for any reason and DA’s have carte blanche to prosecute anybody for any reason. They are essentially currently immune from punishment for seriously unethical and malevolent acts. We need serious systemic reform which addresses this problem. Unlike you, I don’t think it’s impossible – although I recognize there does appear to be any great hope in the short term given the predominance of corrupt inept statist cretins in political office.

                1. Dave – the problem is that the people who would change the system for the better are not the people who seek out the positions that would allow them to do so.
                  People do not seek power so they can destroy it. They seek power so they can wield it and expand it.
                  Nobody’s who would remove the police and DA’s carte blanche is going to seek a position where they could so. It might come in handy some day.
                  We have a predominance of corrupt inept statist cretins in political office because those are the people who seek out political office.
                  Honest people who do not want power over others do not seek political office, just as people with no desire to beat people over the head with a club do not seek to become police officers.

      2. Fools, it’s only news if WE say it’s news. You peons leave the news to us, we know what’s good for you!

  8. If the Government can use it’s overwhelming force to relieve me of the reasonable compensation for my labor; I can expect that it is accountable in it’s performance of legally constituted duties. Recording the efforts of it’s employees is my right and ensures accountablity.

    1. Explains the strategically placed lipstick cam in the shitter.

  9. This article makes me recall a saying – What’s good for the goose is good for the gander. This statement, “Such action impedes the free flow of information concerning public officials and violates the First Amendment right to gather such information.” does seem to make sense, but upon deep thought, it did seem fit for the judge to dismiss the case.

  10. Morning Slinks?

    1. no! not another lunch links. We want yummy breakfast links!

      1. The fucking intern overslept again.

        1. Did someone say something about fucking an intern?

  11. I’m utterly baffled by the lack of a due process argument in these court cases.

    How can it possibly be a felony to preserve evidence for possible defense use in a criminal trial?

    1. As you know, “due process is flexible, and calls for such procedural protections as the particular situation demands.” Morrisey v. Brewer, 408 U.S. 471, 481 (1972).

      Monopoly justice enables the judiciary to make the bill of rights into a decalogue of suggestions.

      1. “a decalogue of suggestions”

        I’m totally stealing this.

    2. Yes, it seems to blatantly violate due process. How can anybody defend themselves adequately in a criminal trial if they are not allowed to obtain and preserve evidence.

      1. I know, but I haven’t heard of anybody pushing this argument.

        Its all First Amendment, which frankly seems a little bit of a stretch to me. Probably still a winner, but still . . . .

        I think a lot of civil liberties types see the First Amendment as a magic bullet. Its about the only one that SCOTUS has shown any enthusiasm for applying adversely to the government.

      2. Not to mention any post conviction relief. How can someone file an appeal or a habeas petition if there is no record of what happened???

  12. “He was immediately confronted by Judge Kimbara Harrell, who accused him of violating her privacy and charged him with eavesdropping, a felony punishable by up to 15 years in prison.”

    A court reporter is present and taking down verbatim everything that is said by the judge and attorneys (unless they request an off the record conference) so that a record can be made on appeal. In my experience, a tape recorder is also used to correct any transcription errors by the court reporter.

    Furthermore, courtrooms are open to the public so that nothing that is said or done by the judge is private since it is done in “open court.” Judge Harrell therefore cannot possibly contend that her privacy was violated by the defendant’s tape recorder. This only goes to further show that judges and the other chosen ones consider themselves above the law. If you seek justice in this country, stay out of the court system.

    1. IIRC from an article at theagitator, there was no court reporter present and no system for recording the proceedings when Allison’s case was heard. That’s precisely why he wanted to record it himself. I am befuddled that anyone could make an argument he had no right to record criminal proceedings against him in court.

    2. I would add that in some lower-level courts (esp. courts that handle traffic tickets and local ordinance violations) a court reporter might not be routinely provided. This varies from one jurisdiction to the next. In such cases one needs to either request a court reporter in advance, or actually bring along their own court reporter. “If it’s not on the record it didn’t happen.”

      1. Yes, you’re right but even if there was no court reporter present, it’s still open court and thus a public proceeding. Also, just because “he had been told there would be no official transcript of the proceedings” doesn’t mean that there was no transcript being taken. Besides, a judgeship is a public office. This fact alone should have caused the matter to be dismissed. But once again, judges act like little emperors on their thrones who don’t have to abide by the same standards as you and me.

        1. Yep. I think one reason some smaller local courts do not record proceedings is that the judges and prosecutors cannot be held accountable for what they do if there is no record. I’ve heard lots of horror stories of rural courts here in GA where defendants were herded into court and basically duped into entering guilty pleas without being provided an attorney. It’s harder to get away with stuff like that if there is a record.

  13. “lest uppity citizens get the idea that it’s OK to document the public performance of public officials…in public.

    I love (?) that a judge whose public-taxpayer-paid speech is being transcribed by a court reporter thinks that recording her violates her privacy.

  14. Damn, I was primed to see more of dumphy’s trademark policecop apologetics but I guess he must be on patrol right now. What a shame. I was looking forward to seeing him explain how we’re all bigots because we think the policecops should be held to the same standard of transparency and accountability as the rest of us. Personally I think that since our policecop overlords are given a license to you know… kill us based on their own discretion… then holding them to a HIGHER standard and subjecting them to intense scrutiny (including recording by citizens) would be appropriate.

  15. I think the people of Illinois should be ashamed of themselves!

    Now what’s all this about illegal recordings?

  16. There appears to be no toilet big enough to flush the cesspool wasteland called the Illinois Judicial System.

  17. you can choose what you like best from them. They are all free shipping and not

    tax.

  18. Scary fact: Given the wording of the complete law text, you don’t even need to use a recorder to run afoul of the law.

    Simply writing down what the officer said, from memory, is good for 15 years in prison. The same is true if someone else writes down what the person who heard the conversation remembers.

    Good luck defending yourself in court if simply giving a deposition is a class 1 felony.

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  20. I’ll amazed at the bias shown by Chicago Press in reporting Eavesdropp?ing cases. In Cook County there were three Eavesdropp?ing Cases: People v. Moore, People v. Drew and People v. Melongo. However, the Chicago Press has completely ignored the Melongo’s case and focused all its attention on the Drew’s case. Melongo recorded conversati?ons with Pamela Taylor for an allegedly altered court transcript?. Melongo has spent 22 months in jail for this offense, is currently out on house arrest. I’m extremely shocked at what’s happening here.

    Melongo’s Motion to dismiss: http://www?.scribd.co?m/doc/8109?6353/Amend?ed-Motion-?To-Dismiss?-Illinois-?Eavesdropp?ing-Case

    State response’s to Melongo’s motion: http://www?.scribd.co?m/doc/8175?0317/State?-Response-?Amended-Mo?tion

    Melongo’s arguments on her motion to dismiss will be heard on March 13th, 2012.

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