IL County Attorney Declares He'll Selectively Enforce Wiretapping Law Found Unconstitutional By Seventh Circuit Court

from the I-don't-know...-I-never-heard-of-no-'constitution' dept

Tue, Aug 13th 2013 11:57am — Tim Cushing

In May of last year, the Seventh Circuit Court finally buried an oft-abused aspect of Illinois' "eavesdropping" law, an outdated statute meant to ensure privacy by requiring both parties to consent to recording. In theory, this prevented secret recordings. In practice, it was the go-to justification for cops to arrest citizens filming their activities. The state's attorney general aided in this abuse by throwing the bad law at as many people as the cops could round up.

A round of courtroom challenges culminated in the Seventh Circuit Court declaring the law was likely unconstitutional, at least in respect to citizens filming law enforcement officers. The Cook County state's attorney appealed but was shot down by the nation's top court, which refused to hear the appeal.

As it stands now, the court has stated that using this law to curtail the recording of police is unconstitutional. (The circuit court booted it back down the line, suggesting the lower court repeal the law altogether.) But that isn't stopping Robert Bonjean, state's attorney for Morgan County, IL, from prosecuting people using an unconstitutional law.

A Jacksonville man who had his phone seized for recording an on-duty police officer is not likely to be charged under the state’s controversial eavesdropping law.

Morgan County State’s Attorney Robert Bonjean said Monday that he is not anticipating prosecuting an eavesdropping charge against Randy Newingham — at least not at this time.

You would think that the state's attorney would have ended his sentence before that troubling em-dash. An unconstitutional law isn't something you can just decide to enforce randomly... or at all. True, the law is still on the books, but this particular aspect -- recording an on-duty law enforcement officer -- isn't a prosecutable offense.

Bonjean seems to think higher court decisions are nothing more than vague guidelines.

“We’ll review those reports and we’ll continue to monitor the decision from the 7th Circuit court,” Bonjean said. “I don’t foresee myself making any blanket decision, just taking it on a case by case basis.”

It would seem to me that the blanket decision has already been made for Bonjean, but there's no deterring an attorney bent on pursuing "justice," even if said justice might need to be put on the back burner until no one's paying attention.

“Quite honestly, I haven’t made a decision,” Bonjean said. “Officially I’ve [indicated] to [Police Chief Tony Grootens] that I won’t file charges. But technically it’s a felony charge, so I have three years from the date of the offense to file a charge.”

Yep. Just wait it out and keep "monitoring" the decision, just in case the Seventh Circuit Court decides to reverse its decision in order to keep Illinois law enforcement free from public scrutiny and servile prosecutors like Bonjean occupied tossing cell phone owners in jail.

Police Chief Grootens threw in his two cents as well, the ignorance of which indicates that Grooten's two cents was perhaps one cent more than his coin purse of a mind contained.

Grootens said he believed that Newingham was sincerely ignorant of the law.

Could be. Many citizens are. Please go on.

“Believe me, [the State’s Attorney’s Office is] busy enough,” Grootens said. “There’s more pressing things on their plate right now than to go with that. I already took care of it. … I told him not to be doing it. He honestly thought he was OK to do it, so now if he continues to do it, I can’t tell you that he certainly won’t be arrested.”

Hmm. That's an interesting interpretation of a law that says preventing citizens from filming law enforcement officers is a violation of their First Amendment rights. It's so interesting, it's completely wrong! Grootens' statement indicates there will be more arrests of citizens wielding cameras because you simply can't have citizens enjoying protections the police have failed to recognize. That way lies anarchy. And madness. And accountability.

The article indicates the police still believe a blanket decision that covers the whole of Illinois somehow doesn't cover Morgan County. Perhaps it's all a big misunderstanding. Cook County appealed the circuit court's decision and was rebuffed by the Supreme Court. Using the same sort of logic currently impairing the attorney and police chief, we can extrapolate this to mean that the law only applies to Cook County and the rest of the counties are free to jail anyone training a camera on a cop.

They might want to be careful, though. Among the things not included in Morgan County's tattered copy of "I Can Law! (And So Can You!)" is the fact that violating citizens' rights opens up the violators to civil suits, as was pointed out by DaveSs in Reason's comment thread.

42 U.S.C. § 1983, commonly referred to as "section 1983" provides:

Every person who under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, Suit in equity, or other proper proceeding for redress...

So, there's that. If Bonjean decides to drop the hammer on Newingham at some point over the next three years, he can expect the hammeree to drop one right back for depriving him of his rights. The same goes for Morgan County law enforcement officials. Before that happens, someone might want to talk to these two gentlemen and try to get them on the same page as the rest of the state.

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Filed Under: 4th amendment, eavesdropping, illinois, morgan county, robert bonjean, wiretapping

25 Comments

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Ninja (profile), 13 Aug 2013 @ 11:16am

I'm astonished. Talk about a rogue Executive branch. At all levels it seems. It seems an epidemic, law enforcement and the Executive don't give a shit to laws, judicial decisions and the Constitution. Triple combo!

Americans need to put the Executive back in their place. And the two other powers should also do their share of slapping, they should be very worried with the way the Executive is acting like the absolute despotic leader.
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Anonymous Coward, 13 Aug 2013 @ 12:13pm

I think that last part is the most significant. Officials get immunity when enforcing many laws even if the law is later found unconstitutional. Which makes sense, because they can't know how the court is going to rule. But if they continue to arrest and prosecute AFTER it is found unconstitutional, they lose that immunity and are PERSONALLY liable. That county attorney and that police chief could be paying out of their own pocket if they continue arresting and prosecuting people for filming police.
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- Anonymous, 13 Aug 2013 @ 2:14pm
  
  Re:
  Well, what if it worked that way for us ordinary peons out here?
  
  JUDGE: "This court finds you guilty of violating the law."
  CITIZEN: "Your Honor, I didn't know I'd be found guilty. Now that I've been found guilty, I promise to never do it again."
  JUDGE: "Okay. We cool, then."
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Anonymous Coward, 13 Aug 2013 @ 12:21pm

Ignorant?
"Grootens said he believed that Newingham was sincerely ignorant of the law."

I wonder if we can say the same about Chief Grootens? Does he sincerely not understand why he is wrong? Or does he just not care?
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- TasMot (profile), 13 Aug 2013 @ 12:25pm
  
  Re: Ignorant?
  He just doesn't care. He's the Gxx Dxxx Law and he'll arrest anybody he wants to, F'en US Constitution or not. Can't you get that through your thick skull.
  
  Actually, he'll probably wait until the news "cools" and arrest someone else believing that they haven't heard about this, 'cause you know, he's the law and the masses will just forget he lost already.
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Trails (profile), 13 Aug 2013 @ 12:24pm

Declaratory Judgement?
I'd like to see the ACLU or similar take on this case and seek a declaratory judgement, and perhaps some finding of harassment (Assuming they have the available resources).

You'd also think the whole "I'm not going to charge now, and may choose to sit on this for up to 3 years" would violate Mr. Newingham's right to a speedy trial, or at least provide grounds for such a claim should Schmucko vonJusticar decide to file charges later on.
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- That One Guy (profile), 13 Aug 2013 @ 1:26pm
  
  Re: Declaratory Judgement?
  The county attorney not so subtly mentioning that he has three years to file a felony charge, should he choose to, while the police chief also not so subtly mentioning that if the one accused repeats his actions he'll likely be punished for it... yeah, cases like this are exactly what declaratory judgements are made for .
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Anonymous Coward, 13 Aug 2013 @ 12:27pm

Hmmm, I think I'll go hang out at the station there on weekends with my camera and film.
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- Anonymous Coward, 13 Aug 2013 @ 12:30pm
  
  Re:
  One of these days, people should protest things like this by just standing in a public area and filming the police station. Of course, that would require people to actually bother protesting something relevant.
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- Anonymous Coward, 13 Aug 2013 @ 6:54pm
  
  Re:
  I see a pay day in your future, a favor from Grootens
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Anonymous Coward, 13 Aug 2013 @ 12:32pm

hey guys stop being so hard on them. im selective about which laws i follow too!
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Anonymous Coward, 13 Aug 2013 @ 12:36pm

Queue Streisand. Sounds like it is time for a whole bunch of ACLU and EFF card carrying activist photographers to descend on the county and press the issue.
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out_of_the_blue, 13 Aug 2013 @ 12:42pm

When scofflaws get into gov't. -- I bet this guy pirate movies too!
Yeah, it's a dig. I know you pirates will argue that your petty thefts aren't in the same category as official malfeasance, but you're only sort of right because moral cheating is NEVER wise! It's that TREND thing again, see? Even if I can't directly connect and put numbers to it, I can link this to scoffing at copyright and it's obvious that TRENDS are definitely bad. Here at Techdirt the opinion seems to be that all laws and morality are optional -- at least for YOU -- I'm sure that you wish public servants to observe EVERY punctillio. So even you pirates should insist that everyone follow laws: you don't want the country to get any worse!

Catchphrase: No snowflake thinks it's responsible for the avalanche.
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- S. T. Stone, 13 Aug 2013 @ 12:51pm
  
  Re: When scofflaws get into gov't. -- I bet this guy pirate movies too!
  Wow.
  
  This is so blatantly off-topic and ridiculously ignorant of the actual issue being discussed that I�m voting it �funny� because goddamn, son, I couldn�t have laughed harder unless you�d actually given this your best effort.
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  - That One Guy (profile), 13 Aug 2013 @ 1:07pm
    
    Re: Re: When scofflaws get into gov't. -- I bet this guy pirate movies too!
    That's pretty much blue's M.O., comments so clueless and offtopic you can't help but laugh/groan at them.
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- DP, 14 Aug 2013 @ 2:57pm
  
  Re: When scofflaws get into gov't. -- I bet this guy pirate movies too!
  Does anybody know what this complete load of gibberish is supposed to be about? OOTB might just as well be speaking a different language, for all the sense it makes.
  [ link to this | view in chronology ]
Anonymous Coward, 13 Aug 2013 @ 12:53pm

Yeah, but this is Illinois, "where the Governors make our license plates"
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- Anonymous Coward, 13 Aug 2013 @ 1:07pm
  
  Re:
  so the place is one giant liberty city?
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Baldaur Regis (profile), 13 Aug 2013 @ 1:04pm

Hmmmm.
So if AG Bonjean interprets this no-eavesdropping law ("an outdated statute meant to ensure privacy by requiring both parties to consent to recording") so strictly, what are his views on police dash cams?
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Anonymous Coward, 13 Aug 2013 @ 1:47pm

hmmm...
So if the government (albeit state, but still) can selectively follow only the laws it wants to I guess I can too.
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- Anonymous, 13 Aug 2013 @ 2:50pm
  
  Re: hmmm...
  Who doesn't?
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Anonymous Coward, 13 Aug 2013 @ 2:27pm

The only way to end this above the law mentality by public servants is to hold them accountable with criminal charges for violating the constitutional rights of their constituents. In short, I want to see these fucks sent to prison for what they are doing to my country.
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davnel, 13 Aug 2013 @ 3:29pm

How Can You Expect Anything Different?
"Bonjean seems to think higher court decisions are nothing more than vague guidelines."

Considering what his mentors in the Justice Department are doing, how can you expect him to regard the Constitution as anything but guidelines, to be applied as you wish. Laws are there for Law Enforcement to use for revenue and to silence critics, what else could they possibly be for?
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Anonymous Coward, 14 Aug 2013 @ 7:02am

The problem with all this government crap is that it is a monopoly and one way.

Maybe what is needed is to break the monopoly and one way crap and allow private citizens to prosecute government officials and place them in jail while sewing them for all their assets.

This would seem to be fair.

Government official do unto private citizens and private citizens do unto government officials.
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Anonymous Coward, 16 Aug 2013 @ 3:38am

Title 42, Section 1983 is civil law. But the violation of rights is also a criminal law violation, under Title 18, Sections 241 and 242.

All but one state (North Carolina) allows people to make citizens arrests for felonies, and most of them don't exempt police officers from arrest. While a basic violation of Section 242 isn't a felony, ANY violation of 241 is. And if the 242 violation includes a threatened or actual use of a dangerous weapon (pepper spray and TASERs both count) then it DOES become a felony.
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