Illinois Prosecutors Planning To Appeal Ruling That Said Recording Police Is Protected By The First Amendment

from the of-course-they-are dept

Thu, Sep 29th 2011 7:18am — Mike Masnick

Earlier this month, we wrote about the ridiculous criminal case against Michael Allison, who was facing 75 years in prison for the horrible crime of recording the police. The details of the case made it quite clear that the charges against him were vindictive, in response to attempts by Allison to challenge a questionable fine he'd received. Thankfully, an Illinois state court tossed out the lawsuit, noting that the law pretty clearly violated the First Amendment.

Of course, for whatever reason, Illinois state law enforcement has taken particular interest in the case, with the state Attorney General office coming in to help with the case, and the Illinois Assistant Attorney General flat out claiming that there's no First Amendment right to record police. So, it should probably come as little surprise that the state has indicated that it's planning to appeal the ruling (via Radley Balko). Perhaps this isn't a surprise -- but it does suggest a really broken system where the state is so adamant in trying to vindictively punish a guy for defending his own rights.

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Filed Under: free speech, illinois, michael allison, police, recording

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Cloksin (profile), 29 Sep 2011 @ 6:37am

What a sad state
it is when those put in a position to supposedly protect and represent the citizens go out of their way to block any checks and balances the system has in place. (how appropriate, Pennywise's F**k Authority just started playing on my iPod as I'm writing this).

With the evidence recently of how important it is for us to be able to record police, as proved by the pepper spray incident in NYC, not only do we need to make sure that the courts realize this is a first ammendment right, but it is also necessary for our physical safety.

The police need to realize that just because they've been given a badge, that does not give them the right to trample on our civil liberties.
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Hephaestus (profile), 29 Sep 2011 @ 7:10am

Re: What a sad state
"The police need to realize that just because they've been given a badge, that does not give them the right to trample on our civil liberties."

Its called Deindividuation. Philip Zimbardo, did an experiment at Stanford, where he study of the psychological effects of becoming a prisoner or prison guard. The same effect can be seen in most law officers.
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aguywhoneedstenbucks (profile), 29 Sep 2011 @ 7:23am

Re: Re: What a sad state
I had forgotten that study until you just brought it up. Thanks for reminding me.

It makes me wonder: Is the effect worse when someone has a predisposition of being a bully? It would seem to me that someone that enjoys lording power, size, and control over others would be the first person that would apply to be a police officer (not that all police officers are like that) and that the effect found during the Stanford Prison Experiment would just compound an already crappy attitude towards others.
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Chris Meadows (profile), 29 Sep 2011 @ 7:37am

Perhaps if we're lucky this case will go all the way to SCOTUS and set a nationwide precedent that it's allowed.

Of course, if we're unlucky it will go all the way to SCOTUS and set the wrong precedent.
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Anonymous Coward, 29 Sep 2011 @ 7:40am

With a ruling like this, they pretty much absolutely have to follow it to it's logical conclusion (SCOTUS). Public officials do have some expectation of privacy, example when they are in a car, windows closed, talking to someone. Should people be allowed to breach all of their privacy because they are "public" officials? It seems that at some point, it would begin to obstruct the officers work.
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anonymous, 29 Sep 2011 @ 7:43am

Re: Re: Re: What a sad state
'someone that enjoys lording power, size, and control over others would be the first person that would apply to be a police officer'.
seems like all those entertainment industry execs should apply, then. they fill the criteria nicely!
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anonymous, 29 Sep 2011 @ 7:44am

Re: Re: Re: What a sad state
'someone that enjoys lording power, size, and control over others would be the first person that would apply to be a police officer'.
seems like all those entertainment industry execs should apply, then. they fill the criteria nicely!
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Deus Invictus, 29 Sep 2011 @ 7:46am

I don't buy it
I don't buy it, it's not like any part of Illinois is known for it's corruption or anything.
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Ninja (profile), 29 Sep 2011 @ 7:47am

That's sad. The fact they are actually even considering an appeal.

The police is a force maintained by tax money with the sole goal of protecting the very same ppl that pay their wages, the citizens. And wow, incidentally they are citizens too, just like us.

What is sad is that the Illinois PD seem to think they are above the constitutional rights. There is no laws that forbid ppl from recording police activity (and there shouldn't be any anyways) thus making this an exercise of your FREEDOM. You are FREE to do it because it is NOT AGAINST the law. They may argue that it's not morally correct (srsly...) but morals have NOTHING to do when you have your rights secured in the law (or lack of a law forbidding).

In the end it is yet another Governmental outfit in the process of killing (or trying to kill) the American Constitution to step over its ashes afterwards. Sometimes I pity the American.
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Jes Lookin, 29 Sep 2011 @ 7:48am

Hey ! Then Someone Owes Somebody Something
And that could be TechDirt's new copyrighted song title !
But... seriously (sort of) who owns the rights to that video ? It looks like the state is 'pirating' some footage for personal profit... say, whatever the fine$ worth. And just how did they obtain it ? Through some DCMA/ACTA naughty type physical piracy or 'illegal' download ? That smacks of mo-money to Mr. Allison !
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Chronno S. Trigger (profile), 29 Sep 2011 @ 7:51am

Re:
True, and I don't think you'll get much argument here about that, but they also should expect the same kind of lack of privacy that normal people have. If they're out on the street, they can be recorded. If they barge into someone's house, they can be recorded.

Now, since they are police and are suppose to work for the public, they should be subject to a higher level of scrutiny. Especially if they can affect so many lives in a negative way legally.
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Pixelation, 29 Sep 2011 @ 7:53am

Re:
From the judge's ruling...
"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,"

Key wording "public duties" It doesn't say Private duties, meaning there is some expectation of privacy.
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Richard (profile), 29 Sep 2011 @ 7:54am

Re:
Public officials do have some expectation of privacy, example when they are in a car, windows closed, talking to someone.

No the public officials don't have any expectatation of privacy even in that case - however the "someone" that they are talking to might - and I think that is where your confusion arises from.
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Harrekki (profile), 29 Sep 2011 @ 7:55am

Re:
they have some expectation of privacy (like behind closed doors). But when you are out in the public, you have no right to privacy. Great example, the several thousand video camera system in NYC. as a US citizen (regardless of job, title, or position) you no longer have a right to privacy in the city, and are being recorded at all times. How are the 2 any different? Just because one is put in place by the government and one put in place by a private citizen should not matter.

The Law enforcement will jump at the chance to use a private citizens camera footage if it helps them make a conviction, such as security cameras and private web cams set up in a house. But when the camera helps to prove the guilt of one of their own, it's a "legal violation". You can't have it both ways.

If they come back and say you cannot video tape police,as a violation of wire tapping laws, then they need to offer any criminal in jail due to video evidence a new trial with the video tape evidence excluded.

So how does THAT make any sense?
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Ninja (profile), 29 Sep 2011 @ 7:56am

Re:
Because if some1 record an image of me talking with whoever inside a car with closed windows I can obviously sue for breach of privacy. Dude... Privacy when you are outdoors? So let us all close our ears so we won't accidentally overhear some1 talking about some private subject while taking a stroll? Dude... Srsly? And, if I'm recording from a distance without getting in the officer's way I'm obstructing their work? Srsly? Are you a cop?
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Harrekki (profile), 29 Sep 2011 @ 7:58am

Re: Re:
stopping someone through use of law, or arresting someone is never a "private duty", so that statement has no place in this discussion.
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Prisoner 201, 29 Sep 2011 @ 7:58am

Re: Re:
They should accept being recorded every instant that they are exercising their authority.

If they are just sitting in their car, leave them alone. On the toilet, office whatever. No problem.

As soon as they arrest, fine, pull over, detain, pepper spray or tase someone, that should be 100% ok to tape by whoever.

We dont want to know what size of breasts they prefer, just what they do when they break out the authority.
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Jeremy7600 (profile), 29 Sep 2011 @ 7:59am

Re:
You mean, on the job, when they are getting paid?

I'm pretty sure if I was sitting in my car, windows closed, talking to someone, while I was on the clock, my boss wouldn't like it very much.

As an analogy, I'm not supposed to txt or make phone calls where I work. I can leave the area where I work to make brief phone calls, and I might get some privacy if I walk away from people, but a police car is their office. I, as a taxpayer who pays their wages, have every right to tape them while they are in their car talking to someone. Want to talk to your wife/SO/etc? Do it where its less likely to be confused with you doing your job. (IE: i'm supposed to take breaks in the breakroom so there is no confusion)

How would I obstruct their work, when they aren't doing their job in the first place since they are on the phone? (if they are on a personal call)
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Jeff (profile), 29 Sep 2011 @ 8:10am

No... The vast majority of police in this country are honest, hardworking individuals who genuinely care about the communities they work and live in. However, by allowing corrupt activities of the few to pollute the well of this honesty, the *entire* well is now poisoned. All activities should be videotaped by as many parties as possible to uphold the integrity of the many against the corruption of the few. A public official (sworn or not), should have *no* expectation of privacy in the performance of their official duties -

Stars, hide your fires!
Let not light see my black and deep desires.
-- Macbeth, Scene IV
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Jeff (profile), 29 Sep 2011 @ 8:12am

Re:
damn - this was supposed to be in response to the green snowflake AC above... sigh
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Frankz (profile), 29 Sep 2011 @ 8:14am

Thankfully, an Illinois state court tossed out the lawsuit, noting that the law pretty clearly violated the First Amendment.

No, that's not what they said. They said using that law against someone for recording the police was a violation of that person's first amendment. The law itself was not.
Yes, it makes a difference.
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Gordon (profile), 29 Sep 2011 @ 8:14am

Re: Re: Re:
It may have been types poorly or you may not have understood the statement, but your arguing against a point that actually agrees with your thinking.

Just saying.
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Thomas (profile), 29 Sep 2011 @ 8:16am

Typical for the cops..
they go to any lengths to pursue vindictive attacks on people. Remind me not to visit Illinois; next thing you know possession of a videocamera will be a felony. How corrupt is the state anyway? The corrupt cops hate the cameras, the honest ones welcome thm.

I spoke to a police officer in my town about it; he said "We know there are cameras - we ignore them and pay attention to doing our job. They are actually an incentive to being careful about how we go about things. The cameras can help us in cases where the police officer is attacked."

So not all the cops are corrupt cretins.
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Gordon (profile), 29 Sep 2011 @ 8:16am

Re: Re: Re: Re:
....typed....
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Pixelation, 29 Sep 2011 @ 8:17am

Re: Re: Re:
His comment/ question was...
"Should people be allowed to breach all of their privacy because they are "public" officials?"

Sorry, it does have a place here as a response. Thanks for playing though.
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S, 29 Sep 2011 @ 8:21am

Re: Typical for the cops..
What town is this?
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Hephaestus (profile), 29 Sep 2011 @ 8:22am

Re: Re: Re: What a sad state
"It makes me wonder: Is the effect worse when someone has a predisposition of being a bully?"

No, just a democrat. You know that whole lack of thought, mob mentality, shout down the opposition, lack of logic, follow any leader who promises you "free stuff", thing. ;)

Kidding aside, as a guess I would have to say predisposition to bullying, and the blue fraternity thing, in the case of police officers, probably does compound the effect.
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AC, 29 Sep 2011 @ 8:22am

Re: Typical for the cops..
No, not all cops are corrupt cretins. Most are NOT.

But most will still protect the ones who ARE corrupt cretins and/or do nothing about their abuses.

That makes them partly responsible for the bad behavior of the few.
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Anonymous Coward, 29 Sep 2011 @ 8:35am

I thought they dropped this case, now it's turned into a zombie.
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aguywhoneedstenbucks (profile), 29 Sep 2011 @ 8:59am

Re: Re: Typical for the cops..
Exactly. Cops are a bit like religious folks. Most are good people who live and let live. They want to be happy and they want others to be happy. However, a very loud vocal minority are what we hear about because they make the news more entertaining (plus, you know, they're LOUD).
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Lord Binky, 29 Sep 2011 @ 9:12am

I wonder what the cops are going to do when they find out they have been recorded in court.....
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MrWilson, 29 Sep 2011 @ 9:25am

Re: Re: Re:
I think this is the point some people miss. Cameras on citizens says that the government cares about its power and authority. Cameras on cops says that the government cares about its citizens.
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DCX2, 29 Sep 2011 @ 9:54am

Re:
Police who commit crimes should lose their badge, gun, and pension. A cop who does nothing (or worse, lies to defend) when they see another officer commit a crime is an accomplice to that crime, just as corrupt as the officer who broke the law, and should be punished like any other accomplice, as well as losing their badge, gun, and pension.

They must be hit in the wallet and those who fail to enforce the law against other officers must be punished, or nothing will change.
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DCX2, 29 Sep 2011 @ 9:57am

Re: Re: Re: Typical for the cops..
The silent majority protect their "brothers" from punishment when they find them breaking the law. They are not good people if they look the other way when one of their own commits a crime.
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aguywhoneedstenbucks (profile), 29 Sep 2011 @ 10:10am

Re: Re: Re: Re: Typical for the cops..
The silent majority aren't in a position to do anything about it. The silent minority of their superiors are. Haul them in front of IA, but regular cops can't do a thing to stop or reprimand someone for doing something like this.
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New Mexico Mark, 29 Sep 2011 @ 10:18am

Gray areas
While this particular sequence of events stinks of corruption, I suspect these issues will not be cut and dried, because this is not just about the rights of citizens to record public officials doing their duties, but the need (at times) for privacy in the performance of those duties.

For instance, the rights of a "presumed innocent" citizen being questioned or arrested might be violated if recording equipment picks up private information about that citizen from a radio, conversation between an officer and suspect, or laptop/tablet display. PII is routinely transmitted/received in police communications, and this information needs to be have reasonable protection. If I can effectively stand over your shoulder and take pictures with a telephoto lens or listen to a whisper from fifty feet away with a parabolic microphone, many of those protections are lost.

There may have to be something that allows public servants the chance to ask people they are interacting with whether they would prefer to opt out in situations like this. Or maybe permit recording, but hold those doing the recording accountable if they publish sensitive or inappropriate information. (Not a real problem to blur out a driver's license, or even a suspect's face.)

Personally, I think in most cases I'd rather have someone else recording. However, I can think of very reasonable situations where this could be an invasion of privacy, damaging, or even dangerous. Witness protection program? Informants? Wrong suspect?
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nasch (profile), 29 Sep 2011 @ 10:22am

Re: Re: Re: Re: Re: Typical for the cops..
The silent majority aren't in a position to do anything about it.

They can testify against the criminals. But the police culture says testifying against a criminal is a betrayal if the criminal wears a badge. If police were honest, they would welcome Internal Affairs. Instead, that department is hated (or so I hear). If the police were honest, turning in another cop for breaking the law would be celebrated. Instead, it's condemned.
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nasch (profile), 29 Sep 2011 @ 10:25am

Re: Gray areas
If I can effectively stand over your shoulder and take pictures with a telephoto lens or listen to a whisper from fifty feet away with a parabolic microphone, many of those protections are lost.

AFAIK, every one of these cases is about someone clearly and openly recording in plain sight of the officers. Someone recording covertly from a distance could be a different matter, legally. Only for the reason you say though, the privacy and confidentiality of non-police citizens.
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Jordan (profile), 29 Sep 2011 @ 11:04am

Can't wait until a defense attorney uses this to get security video tossed.
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Steve, 29 Sep 2011 @ 11:23am

Re: Anonymous Coward,
With a ruling like this, they pretty much absolutely have to follow it to it's logical conclusion (SCOTUS). Public officials do have some expectation of privacy, example when they are in a car, windows closed, talking to someone. Should people be allowed to breach all of their privacy because they are "public" officials? It seems that at some point, it would begin to obstruct the officers work.

When they're doing their job, yes. Why does everyone throw out this stupid argument on every story like this? Then someone has to answer it. When they are doing their job as employees of the public, they do not have a right to "privacy." Your boss has a right to read all of your emails at work, ask what you're doing, and record you. When you're on the job you have no expectation of privacy. When cops are doing their job, they have no expectation of privacy.
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Mr Bad Example (profile), 29 Sep 2011 @ 11:29am

The Fascistas
This kind of behavior is why people think they pay too much in taxes. Between these prosecutors, the NYPD targeting witnesses, the joke that is TSA flight security theater and the everyday threats and harassment that much of the public goes through at the hands of our government wronglers, I've come to the humble opinion that no one should be allowed to work for the government, in either an elected,appointed. or hired job, until they've demonstrated some competence in the modern workplace. Most of these people are simply gang thugs in suits, and wouldn't last a day in a job where they actually had to provide customer service to someone.
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Anonymous Coward, 29 Sep 2011 @ 11:40am

Give them a badge and a gun and they think they rule the world.that is what a pig is !!!
And a pig is a pig.there is no other way to look at it.
and it is high time for you pigs to realize we can film you and your brutality and now we don't have to talk about it because we have EYE WITNESS and we put it right up on the net for all of the world to see.
You Piggies can not hide behind your damn badges anymore.you want to be a policeman and serve the public or did you just want to be a stupid pig.
we will now know just what you are made of.
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aguywhoneedstenbucks (profile), 29 Sep 2011 @ 12:59pm

Re: Re: Re: Re: Re: Re: Typical for the cops..
We'll just have to agree to disagree on this. I think the good and honest police officers would and do testify against the idiots who do retarded things. I think that the ones that don't get pressure from superiors (many of whom rose in the ranks for the same reason government officials rise....they're sociopaths). That's still not a problem with the officer. That's a problem with the people up the chain who withhold promotions and make people's lives hell for cooperating.
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hmm (profile), 29 Sep 2011 @ 1:25pm

awesome!
This is so awesome...because they are challenging directly it means a speedier path to the supreme court and a final decision that police are NOT allowed to beat anyone with nightsticks just because they're black (sorry I mean have a camera)........
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hmm (profile), 29 Sep 2011 @ 1:27pm

btw
TSA isn't a joke anymore..due to the pathetic goings on whats the bet there are DOZENS of active terrorists who are now working for the TSA and giggling everytime they pat down an offduty soldier or cop?
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Anonymous Coward, 29 Sep 2011 @ 1:52pm

Perhaps this isn't a surprise -- but it does suggest a really broken system where the state is so adamant in trying to vindictively punish a guy for defending his own rights.

I don't think the system itself is broken. Just some of the people in the system.
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The Devil's Coachman (profile), 29 Sep 2011 @ 2:18pm

Illinois - the same state where the Chicago Police Riots happened?
Yeah, folks, the same state where the police ran rampant during the 1968 Democratic National Convention. And people think anything ever really changed there in the last forty or so years? Sure it did. Daley died. Fascism didn't. That's about it.
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nasch (profile), 29 Sep 2011 @ 5:03pm

Re: Re: Re: Re: Re: Re: Re: Typical for the cops..
I'm not sure it's accurate to say it's not a problem with the officer, but it's definitely a problem with the leadership and a problem with the culture.
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btr1701 (profile), 29 Sep 2011 @ 11:43pm

Re: Re: Anonymous Coward,
> When they are doing their job as employees of the public,
> they do not have a right to "privacy.

Even that statement is too broad. If a cop is discussing something with a confidential informant, he's on the job, but he has a reasonable expectation of being able to keep his discussion private, even if it's a meet out on a city street.

It would be perfectly acceptable for him to object to someone walking up and sticking a microphone between him and the informant and demanding to be able to record the conversation merely because he's a public official on duty.
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Niall (profile), 30 Sep 2011 @ 5:01am

Re: Re: Re: Anonymous Coward,
That is a rather different situation though. Closed off in a car together is somewhat more private. He'd be daft though if he got upset because someone used lipreading techniques or sophisticated distance-based technological methods if he meets in public.
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nasch (profile), 30 Sep 2011 @ 7:30am

Re: Re: Re: Anonymous Coward,

It would be perfectly acceptable for him to object to someone walking up and sticking a microphone between him and the informant and demanding to be able to record the conversation merely because he's a public official on duty.

Object, yes. Arrest, no.
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btr1701 (profile), 30 Sep 2011 @ 9:53pm

Re: Re: Re: Re: Anonymous Coward,
> Object, yes. Arrest, no.

I agree that it would be inappropriate to arrest for 'eavesdropping' or some similar charge, but if the person's behavior with the camera scared off the informant, for example, it would be completely legitimate to make an arrest for obstruction or impeding an investigation.
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nasch (profile), 1 Oct 2011 @ 9:13am

Re: Re: Re: Re: Re: Anonymous Coward,
I agree that it would be inappropriate to arrest for 'eavesdropping' or some similar charge, but if the person's behavior with the camera scared off the informant, for example, it would be completely legitimate to make an arrest for obstruction or impeding an investigation.

I don't agree, that standard would be ripe for abuse and create a chilling effect on recording police. Any time an officer is talking to someone you might be afraid to record him because he could arrest you for intereference. You know it would happen.
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chris, 2 Oct 2011 @ 11:36pm

That's interesting. Usually only guilty verdicts can be appealed.
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nasch (profile), 3 Oct 2011 @ 6:24am

Re:
This was not a verdict of not guilty, it was a ruling that the law he was being charged with doesn't apply to his circumstances.
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Joe, 19 May 2012 @ 10:52am

"Perhaps this isn't a surprise -- but it does suggest a really broken system where the state is so adamant in trying to vindictively punish a guy for defending his own rights."

Same state where there's a city where self-defense isn't considered a right. Chicago is extremely anti-gun, anti-sunshine(exposure like cameras), pro-crime, pro-corruption.
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ALice Skeris, 23 Feb 2014 @ 7:31am

Ahh the common factor as to why the state is even considering the appeal and its biggest self interest is fed thru and by the lawyers who are paid to appeal and who gets to hire the appeal attorneys ahh but wait who gets to pick the appellet lawyers oh did u say another lawyer do u the taxpayer see the self reciprocating self patronizing practice and still cant find one person to admit they voted for quinn go ahead right now turn to whoever is rt nxt 2 u u c u get th pause just like the deer in the headlites expression quinn gives how did he get there .
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