Appeals Court Rules Against Police on Recording

Very good news out of Illinois, where the 7th Circuit Court of Appeals issued a preliminary injunction against enforcing that state’s ban on recording police officers on duty without their permission. Illinois is one of only two states that make such recordings explicitly illegal, but this is the third court to come down against it (two state, now one federal).

A federal appeals court in Chicago ruled today that Illinois’ eavesdropping law “likely violates” the First Amendment and ordered that authorities be banned from enforcing it.

The ruling from the 7th Circuit U.S. Court of Appeals in Chicago is the strongest blow yet to the law, which is one of the strictest in the country and makes it illegal for people to audio record police officers in public without their consent.

It’s only a preliminary injunction at this point, but it’s still good news. The district court refused such an injunction initially, but the appeals court has reversed and the case now goes for a full trial. And just in time for the NATO summit, where one can expect a fair amount of police abuse and misconduct against protesters.

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  • Gregory in Seattle

    These kinds of laws have always confused me. Law enforcement has been video- and audio-taping the public, saying that “What happens in public is public.” And yet turnaround is a criminal offense.

    I am glad to see that the courts are starting to recognize that “What happens in public is public” is not a doctrine for police only.

  • Matrim

    Good. Nothing a police officer on normal duty does should be undocumented.

  • baal

    Even better that it’s a Federal Appeals Court. That means the ruling will have precedent for Wisconsin, Indiana and Illinois when it comes out.

    Also, it’s appalling that abuse of protesters is more a matter of will happen rather than might happen.

  • Ben P

    Posner was a dissenter to this opinion, which I find interesting. I generally respect his opinions to a pretty high degree.

    The focus of judge posner’s dissent I think is on p.63 of the slip opinion.

    Police may have no right to privacy in carrying out

    official duties in public. But the civilians they interact

    with do. The majority opinion “acknowledge[s] the difference

    in accuracy and immediacy that an audio

    recording provides as compared to notes or even silent

    videos or transcripts” but says that “in terms of the

    privacy interests at stake, the difference is not sufficient

    to justify criminalizing this particular method of preserving

    and publishing the public communications of

    these public officials” (emphasis in original). The assertion

    lacks a supporting argument, and by describing the

    recording as a “method of preserving and publishing

    the public communications of these public officials”

    neglects the fact that the recording will publish and

    preserve what the civilians with whom the police are

    conversing say, not just what the police say.

  • Ben P

    I was going to add, I think he’s probably overstating the concern, but it’s a legitimate one.

  • frankb

    What Ponser is not taking into account is the fact that when the police enter a situation, that situation becomes public even if it is in the bedroom or bathroom of a private home. The police are free to gather recordings and other evidence and to quote what anyone says. Private citizens should have the right to record these very public events too. Laws against trespass will prevent private citizens from hearing and seeing what they have no right to hear and see. I am not a lawyer, so these are just my thoughts.

  • BubbaRich

    Thanks, Ben P! I had seem some judges whose position I couldn’t understand, but that makes the opposing interests clear. I still think this should be legal, with the current police problems we have. But now I have to take into account the TMZ losers and I won’t think of people who oppose recording as necessarily being evil incarnate.

  • D. C. Sessions

    Judge Posner is being quite disingenuous. The testimony of police is, barring extreme circumstances, impossible to impeach because they are considered impartial officers of the Court. Any attempt on the part of citizens to contradict them becomes “he said, she said” with the police holding all the trumps.

    Video and audio evidence is the only effective way to impeach police testimony — as we are seeing.

    So claiming that the laws against citizen recording of police conduct somehow protects the citizens is … well, fill in your own adjective.

  • psweet

    My understanding of the law is that it doesn’t specifically outlaw recording police — rather, it makes it illegal to record anyone without their explicit permission. The original ruling against was based on the likelihood that someone would accidentally record someone — say, when videotaping your kid’s soccer game. (I think that was the example the ruling used, actually.)

  • matty1

    Just reading the excerpt from the dissent here I think the judge was thinking of third parties videotaping not saying that you violate your own privacy by doing so.

    Suppose you record police beating a man who appears drunk. Does the victim have a privacy right not to have footage of him drunk circulated in ways he cannot control?

  • lancifer

    TV news cameras are constantly recording people in public. It would seem that Judge Posner’s opinion would make this illegal.

  • lancifer

    Also outdoor security cameras, both official and private, are recording people in public spaces. ARe these to be banned should Judge Posner’s opinion become law?

  • dingojack

    What’s Judge Posner’s address? Perhaps I could send him some videotape of ‘COPS’, ‘The first 48’ and etc. to see how they handle privacy concerns (they pixelate or blur the images, they’re not a unknown effects).



  • fastlane

    Gregory in Seattle @1;

    First, howdy from a fellow northwester!

    I don’t think this should be a surprise at this point. The police often use ignorance as an attempted excuse for their own wrongdoings, while claiming that ignorance of the law is no excuse when arresting/ticketing someone for an infraction of an often arcane and little known law somewhere. Their hypocrisy seems to know no bounds.

    It’s one reason I would like to see all police misconduct automatically double the time/fines if convicted. They should be held to a higher standard, since they are the ones who are supposed to be enforcing the laws.