Video of alleged sleeping cop highlights problems with Illinois’ new anti-recording law

Jacob Huebert

Senior Attorney at Liberty Justice Center, author of Libertarianism Today.

Jacob Huebert
February 4, 2015

Video of alleged sleeping cop highlights problems with Illinois’ new anti-recording law

The Illinois Supreme Court has made clear that the police don’t have a reasonable expectation of privacy when they’re on duty in public.

Are you aware it is now illegal to video record police officers in public?

That’s what a Carbondale, Illinois, police officer was caught on video saying to a Southern Illinois University student who says he found the officer sleeping on the job in his car.

We don’t know whether the officer was actually asleep, but we do know this: he’s wrong. As the Illinois Supreme Court ruled last year, the public’s constitutional right to free speech includes the right to record police when they are on duty in public.

It could be that the officer in the video knew this and was lying. Or it could be that he read Illinois’ new eavesdropping law and was confused.

For decades, Illinois had one of the country’s harshest, most controversial “eavesdropping” laws, which made it a felony to record any conversation – with police or anyone else – unless all parties consented.

Police and prosecutors didn’t show restraint in enforcing it. For example, one man was charged with a felony for recording his own arrest for selling artwork on a sidewalk without a license; another was charged with a felony for recording his own court hearing after the court wouldn’t provide a court reporter; and a woman was charged with a felony for recording her own conversations with police internal-affairs investigators after they seemed unconcerned about her report of an officer’s sexual misconduct.

That era should have ended last year when the Illinois Supreme Court struck the law down and Illinois joined the overwhelming majority of states that have no law against recording interactions with police and others in government.

But in December 2014 a new eavesdropping law, which is much like the old one, was signed by outgoing Gov. Pat Quinn.

The new statute still prohibits recording any conversation without the consent of all parties, but to accommodate the Illinois Supreme Court’s decisions, it makes an exception for conversations where no one involved has a “reasonable expectation” of privacy.

This creates a problem: it is often difficult, if not impossible, to know when another person has a reasonable expectation of privacy. Courts normally figure that out on a case-by-case basis, considering numerous factors, usually in the context of determining whether police have conducted a search that violates the Fourth Amendment. It is not reasonable to expect ordinary people to know that entire body of case law, let alone apply it to their own unique circumstances on the fly.

Still, the Illinois Supreme Court has made clear that the police don’t have a reasonable expectation of privacy when they’re on duty in public, so recording them in that setting is certainly legal under the new law.

But that might not be obvious to everyone – including a police officer – who reads the law but isn’t familiar with those court decisions.

Besides, those decisions don’t explain what counts as recording “in public,” nor do they say whether it would be legal for a citizen to record an encounter with police in a “private” setting. If anything, they suggest by negative implication that they would not protect the right to record police in a private setting. (If so, then it would probably be a crime under the new law to make or publish a recording like this one of officers mocking children with disabilities in a meeting.)

One of the law’s sponsors, state Rep. Elaine Nekritz, says citizens shouldn’t be concerned about the law’s lack of clarity. It doesn’t spell out the circumstances where someone has a reasonable expectation of privacy, she admits, but that’s okay because “we know it when we see it.”

But that officer in Carbondale apparently didn’t know it, and most citizens don’t know it either.

That’s a problem. If people aren’t certain whether recording a conversation could land them in jail, they’re going to choose not to record. So the new law – whatever the intentions behind it – will have the effect of discouraging people from recording police and others in government.

Contrary to Nekritz’s claims, this is not necessary. Even if Illinois doesn’t want to legalize all recording, the legislature can at least amend the law to say that it is always legal to record your own interactions with government officials that pertain in any way to their official duties, regardless of when or where they occur. Then there would be clarity. And citizens would be empowered to better hold police and others in government accountable for wrongdoing in public and private – which is especially desirable in a state with Illinois’ history of crime and corruption at all levels of government.

If legislators refuse to do even that much, then Illinoisans should wonder just whose interests they’re looking out for.

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