IL County Attorney Seeking To Enforce Unconstitutional Law Draws The Attention Of The ACLU

from the lack-of-blanket-statement-meets-blanket-legal-decision dept

As was recently covered here, a Morgan County, IL state's attorney by the name of Robert Bonjean declared his intentions to selectively enforce a state law declared unconstitutional by the Seventh Circuit Court.

The law in question was the 1960 Eavesdropping Law that forbade recordings without the consent of both parties. The court stated that using this statute to prevent citizens from recording police was likely unconstitutional. Shortly thereafter, a citizen (Randy Newingham) was detained for doing exactly that. Bonjean said he wouldn't issue a "blanket statement" on citizens' recordings and would take it on a "case-by-case" basis.

The local police chief, Tony Grootens, added to the mess by declaring the detained citizen was ignorant of the law governing recordings, issuing a statement that showed it was actually the chief who misunderstood the law. Bonjean then issued a low-key threat, mentioning he had three years to toy with the recording citizen by holding a pending felony charge above his head. Grootens himself suggested he might arrest Randy Newingham if he continued to record on-duty police officers.

When officials start screwing around with the Constitution, they tend to draw the attention of parties very interested in preventing this sort of abuse. Bonjean's "I do what I want" statement drew the attention of the ACLU's Illinois branch, whose senior staff counsel, Adam Schwartz, fired off a letter to the state's attorney demanding some answers.

Mr. Newingham's action--audio recording an on-duty police officer in a public place--is protected by the First Amendment. See ACLU v. Alvarez, 679 F.3d 583 (7th Cir. 2012), cert. denied, 133 S. Ct. 651 (2012). The Illinois Eavesdropping Act violates the First Amendment as applied to such audio recording. Id. This decision is controlling throughout Illinois. For your convenience, a copy of the opinion is enclosed.

By August 23rd, please advise me whether civilians in Jacksonville will face arrest, and in Morgan County will face prosecution, if they audio record on-duty police officers.

Well, that clears that up, hopefully. It's tough to say how Bonjean arrived at the conclusion that a circuit court decision affecting the entire state somehow excluded his jurisdiction, but both he and Police Chief Grootens seem to be projecting an air of almost-deliberate obtuseness about the court's decision.

Or it could be they just didn't get the memo. (Schwartz has rectified that by sending a copy of the opinion.) Sure, the Supreme Court issued its kick to the curb back in November of last year, but maybe news travels more slowly when it's news you don't want to hear.

At this point, there has been no response from either Chief Grootens or Robert Bonjean, according to the Jacksonsville Journal Courier. I would imagine any further comments will be run by a legal team rather than directly from Bonjean's or Grooten's brains to their mouths.

Filed Under: eavesdropping, illinois, robert bonjean, wiretapping
Companies: aclu

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

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.

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