We take videos of police interactions for granted these days, but not so long ago, videotaping a cop could earn you felony. That law in Illinois was overturned in 2014, thanks, in part, to articles like this which was a cover story of the River Cities Reader in 2011.
If the cops in Minneapolis had read the last paragraph, George Floyd would still be alive and their brethren would be on the outside of the bars.
Let me be clear, the law is unchanged. The paragraph remains as it has for years.
“The eavesdropping of an oral conversation or an electronic communication between any law enforcement officer, State’s Attorney, Assistant State’s Attorney, the Attorney General, Assistant Attorney General, or a judge, while in the performance of his or her official duties, if not authorized by this Article or proper court order, is a Class 1 felony.”
A Class 1 felony is punishable by up to 15 years imprisonment. Manslaughter is only a Class 3 Felony, five years max. My irreverent sense of the absurd often gets me in trouble, but I just can’t contain it here; you could get a lighter sentence for killing a cop than videotaping him.
What has changed is our technology.
Twenty-five years ago there were plenty of analog pocket recorders and Dictaphones, but they didn’t have the compelling ability to instantly contextualize using video. In order to get the video, you needed a VHS Camcorder which required a nominal $1000 investment and the willingness to backpack it around town. Built in audio and video recording is now standard issue on smart phones. Record the events of the day? There’s an app for that. The result is that there are now millions of fully equipped citizen videographers on the street.
The Illinois Evesdropping Statute is not some old legal chestnut to be associated with laws against leaving your horse on main street after dark. The police are actively using it.
In August of last year, Tiawanda Moore, 20 of Chicago went to police headquarters to file a sexual harassment complaint against a police officer. Finding officers uncooperative, she pulled out her Blackberry to record their reactions. She was promptly arrested and charged with evesdropping, her trial is scheduled for June of this year.
In Galesburg, city police entered a private residence on suspicion of underage drinking in May. Concerned that the police may be violating search and seizure laws, Eric Kraus, 23 and Andrew Cree, 22, began recording the police activities. Both were arrested and charged with felony evesdropping.
During November 2009, in DeKalb, brothers Fanon Parteet, 23, and Adrian Parteet, 20, were on a late night run with a friend to the local McDonalds when they were stopped by police on suspicion of DUI. While a DeKalb police officer was talking to the driver of the car, a second officer advised him that Fanon Parteet appeared to be recording him using a camera-equipped cell phone. While Fanon Parteet was being arrested on the eavesdropping charge and placed in a squad car, Adrian Parteet used another camera-equipped cell phone to record his brother’s arrest. He, too, was arrested on evesdropping charges. Facing Class 4 felonies, punishable by up to three years in prison, the brothers eventually plead guilty to lesser charges.
These examples are all recent, nearby and far from anomolies In a broader view, Massachusetts and Oregon have similar evesdropping laws. In an even broader view, there seems to be a rash of examples of police, sans any applicable law, who empower themselves to stop citizens from documenting their activities.
In Las Vegas, NV, which has single party consent (only one party needs to consent to the documentation, ie, the person doing the recording), Mitchell Crooks, 36, was videotaping a traffic stop from the driveway of his house. Officer Derick Colling of the Metropolitan Police Department took exception to the activity, challenged Crooks and when Crooks verbally resisted, he was taken down, arrested for battery on a police officer and his $3,500 camera confiscated.
Last November, as New Haven, CT police were breaking up a street fight, Luis Luna whipped out his iPhone and began recording from a distance. When police ordered him to stop recording and to leave the scene, and Luna refused, he was arrested, charged with “interfering with police,” and spent the night in jail. Police confiscated his iPhone and returned it to him, sans the video, after he pled guilty to a lesser charge of “public disturbance.” Questioned by reporters after the event, New Haven Chief of Police Frank Limon ceded, “It’s not our policy to arrest people for filming. As a general principal, it is not illegal to video.”
In Washington DC, last July photographer Jerome Vorus was literally on a sightseeing stroll down Pennsylvania Avenue when he witnessed police making a routine traffic stop. After taking a few shots he was temporarily detained and asked for ID. According to Vorus, officers then told him that it is “illegal and unlawful” to take pictures of people without prior consent on a public street, and unlawful to take pictures of the police without authorization from the DCPD PIO (Public Information Officer). Vorus ads, “What’s funny is the officer that informed me that I could not record people, pulled out her camera phone and started to audio and video record me.”
My point is, I don’t think that this is just a case of Illinois has a bad law. The problem is larger and more systemic. What we have is a law, along with procedures and practices that are terribly out of whack with the times. The Illinois’ evesdropping law is practically pre-historic, the original draft dates back to 1961 when it was intended to protect the privacy of everyone. To lawmakers at the time, it simply seemed wrong to be able to record anyone’s conversation without their permission. The law was expanded in 1994 to include camcorders and to include open and obvious audio recording, even if it takes place on a public street where no expectation of privacy exists and in a volume audible to the “unassisted human ear.”
Meanwhile, in the real world, the use of surveillance cameras has proliferated. Security cameras skirt the eavesdropping law by not recording sound and cameras in stores and public places are so commonplace as to go unnoticed. Google Earth allows anyone to peer into our backyards. Airport full-body scanners get all the headlines, while their shy brethren, concourse eye-in-the-sky video security is reportedly so high definition as to allow TSA personnel to read the paperback you brought along with you. The veil of darkness at a concert may suggest that you can get a little frisky with the SO, but infrared illumination will render your little game of grabass as live action porn to the guys in security. Welcome to the fishbowl.
We have all relinquished privacy in the last decade. None of us decided on this, we didn’t vote on it, it’s just the way it is. Do not get the impression that I condone this loss of privacy, I do not, in fact, I hate it and what I really hate is when it is applied unfairly. When the privileged are increasingly empowered at the expense of the disadvantaged, it really cheezes me off.
A friend of mine had his car sideswiped by a hit and run driver while it was parked in plain view of a bank security camera. The bank elected not to get involved, it was easier for them to let my friend pony up the insurance deductible than to trouble their security people and deal with whatever resulting revelations.
While Illinois’ eavesdropping law establishes that making an audio recording of a private individual is a Class 4 Felony (up to 3 years imprisonment), a special provision ups that penalty to a Class 1 Felony (up to 15 years imprisonment) if that individual is a police officer on duty.
The fishbowl, it would seem, is made of one way glass.
That same law also provides an exemption for the police to make A/V recordings of individuals as long as they are “suspects.” Wait, it gets worse. The police are not obligated to use that recording in establishing your innocence. For example, suppose you are charged with Driving Under the Influence and the arresting officer’s dash mounted camcorder recording your field sobriety test shows you effortlessly jumping up and down on one foot, with your eyes closed, while reciting the alphabet backwards. The police aren’t obligated to show that in court, in fact, they aren’t even obligated to keep that recording around.
Unsurprisingly, the police are neither neutral or silent on the matter. Chicago’s president of the Fraternal Order of Police, Mark Donahue, told the Chigago Tribune that the “state’s eavesdropping law is a good one. Allowing people to record arrests, ‘could potentially inhibit an officer from pro-actively doing his job.’”
Perhaps the strangest comment has come from Capt. Dave Briggs of the Peoria County Sheriff’s Department after Rodney Anderson, Jr., 37, allegedly slipped his phone into a mode that discreetly records audio while he was being arrested following a domestic disturbance March 27, and his subsequent booking on evesdropping charges.
“Our officers are aware that any arrest in a public forum is subject to video and audio recording, which may be illegal,” Briggs said, “Someone who does it surreptitiously, obviously their intentions are different.”
Briggs went on to explain Eavesdropping Act protects officers’ ability to engage in confidential conversations with victims and suspects.
“Those instances far outweigh the occasional officer who uses colorful language,” he said. “Sometimes even suspects have things they want to say to an officer - and it shouldn’t be out on YouTube.”
I knew about attorney/client privilege, that rule of law that protects those conversations as private. Is he saying that there is an officer/arrestee privilege, too? I’m going to come back to this.
For those, like FOP’s Donahue who cite video cameras as inhibiting police from pro-actively doing their jobs and making a dangerous profession more dangerous: Sorry, I’m not buying it. First off, danger-wise, the police are in the que behind farmers, ranchers and sheep herders, well below fishermen and firefighters. I don’t believe I have ever seen a firefighter come out from a burning building and demand the news crew turn off the cameras. Statistically, being an airline pilot is much more dangerous than being a police officer. Airline pilots live with flight and voice recorder black boxes, ensuring that every little mistake they make will live on, regardless of whether they or their passengers do. Being a trucker is more dangerous than being a cop, today’s trucks constantly monitor driver behavior. Surgeons have jobs where they must make life and death decisions, and mistakes could cost them millions. Guess what? They’re being recorded. I don’t see spokesmen for any of those groups attempting an argument that videotaping inhibits their ability to do their jobs pro-actively.
Trooper. Officer. Deputy. Can we talk? I respect and appreciate what you do. In my experience, law enforcement officers have behaved with the utmost civility and professionalism. When I first read Capt. Briggs comment about officer/arrestee confidentiality it struck me as very odd. Later, I happened to reflect on the times I have been clearly outside the law and the officers who caught me, cut me some slack. (110 mph in a 55 comes to mind). How that slack probably wouldn’t have occurred it the officer thought he was being recorded and it definitely wouldn’t have occurred if I jammed a camera in his face. So maybe Capt. Briggs does have a point. So let me attempt to return the favor and address this as calmly and rationally as possible. Just as you won a tremendous public relations chit when the public was introduced to reality TV shows like Cops and America’s Most Wanted, you’re going to lose on this one. Not because of anything I think or say, the numbers and the technology are against you. Every year we will see an increase in the number of smart phone users, and the younger they are the more likely they are to feel like it is their god-given right to video record your activities, because they themselves were raised being video recorded. Every year, the cameras within the smart phones will become more technologically advanced, features like telephoto lenses will allow recordings to be made from greater distances. Cameras will shrink in size. You will never know the recording was made. Social networking sites and a younger generation’s increasing utilization of them will mean the video of you will go viral instantly. The Evesdropping Act cease to be any kind of shield because once people are aware of it, they will cease to claim ownership of the recording. Then you are really in the censorship business and we all know how well that works.
What would I do if I were you? Well, I would start by letting everyone in your chain of command know that this will be an emerging and continuing departmental problem. Your policy makers need to make some correct decisions, what is your organization’s position on this? Some training on proper responses to being recorded is probably in order. Finally, let me suggest this: people are not motivated to photograph or record mundane, everyday events. They pull out cameras when unusual, exciting events occur. So while three squads converging on the perp looks great in the editable world of “Cops,” it won’t look nearly as good when the perp is just a drunk at the 7-11 and the cameraman is some kid with an Android. If just one unit shows up and the drunk is quietly given a ride home, whatever footage, if any, is certain to make it to the cutting room floor.