Supreme Court Blocks Illinois Law Against Recording Police

An anonymous reader writes "The Illinois anti-eavesdropping law was cut down slightly. While protecting the average citizen from eavesdropping, it also put in place prohibitions against recording the police as they were doing their jobs. An appeals court sided with the ACLU, saying that it was too great a restriction on First Amendment rights. Today, the U.S. Supreme Court refused to hear the appeal, cementing in place the lower court's ruling. In Illinois, you can now secretly record the police."

caselaw summary

[Trepidity]

With the Supreme Court not yet weighing in, here's a summary [citmedialaw.org] of the current state of case law. Every federal appellate circuit to consider the matter has come out in favor of recording being protected, however.

Re:In Illinois?

[Millennium]

The SCOTUS didn't make any ruling; in fact, they refused to hear the case at all. That means the previous decision stands, but only within the jurisdiction of the court that made that decision. Thus, it doesn't apply to the whole country.

Re:In Illinois?

[GodInHell]

Correction: This is a 7th Circuit Court of Appeals ruling left undisturbed by the S.C.O.T.U.S. In Illinois, Indiana and Wisconsin you can probably now secretly record police officers - but might still get arrest for it and have to fight a protracted Court battle. In the rest of the Country there's this 7th Circuit Court of Appeals ruling that was left undisturbed by the S.C.O.T.U.S. your lawyer can now cite to if you get arrested for secretly recording police officers -- the judge in your federal Habeas Corpus action might be persuaded by that authority or might reject it.

Re:caselaw summary

[immaterial]

It is also worth noting the US Department of Justice [pixiq.com] also believes recording is a constitutional right and important to "engender public confidence in our police departments, promote public access to information necessary to hold our governmental officers accountable, and ensure public and officer safety," and they've set forth a clear set of guidelines that can help police departments set their policy and officer training accordingly.

Re:Just in Illinois?

[Trepidity]

The problem is it hasn't actually been upheld by the Supreme Court. If the SC heard the case and upheld it, that would be nationwide binding precedent. But they just chose not to hear the case at all, which has no precedential effect.

Re:In Illinois?

[compro01]

No, the SCOTUS declined to hear the case, meaning the lower court ruling stands, but is only applicable within that court's jurisdiction. Specifically, the ruling was from the 7th circuit court, so it applies to Illinois, Wisconsin, and Indiana.

Re:In Illinois?

[GodInHell]

No it doesn't. The Supreme Court refuses to hear most of the cases that seek certification to appeal. It could mean they agree with the ruling, or that they don't see any need to weigh in because there's no dispute between the rulings and no obvious error of law. Sometimes it means they want to see the ruling in action before accepting a later appeal. Often it means that there's something about the underlying fact pattern which has rendered the issue moot (e.g. if the criminal charges have been dropped - if a criminal action - or there is no claim for damages - if a civil suit. If there is no further purpose to the ruling other than to satisfy the curiosity of the parties about the meaning of the law, then the case is probably moot and the Supreme Court will reject the appeal).

That's why we say that the Court's refusal to hear an appeal does not have precidential effect -- we don't know the underlying reasoning behind the Court's decisions and shouldn't assume they agree with the ruling below just because they refused to hear the case. That's not a clear inference.

Re:Don't mess with people in difficult jobs

[HornWumpus]

Gardening is a much higher risk job then being a cop. Roofing and fishing is another league completely.

Your right; don't lunge at cops. But not because they are in great danger, because they are armed trigger happy bullies.

The biggest work place risk of being a cop? Traffic accidents.

Re:caselaw summary

[TubeSteak]

They didn't charge this guy with recording: http://www.infowars.com/california-man-jailed-four-days-for-recording-cops/ [infowars.com]
Instead it was "resisting, delaying and obstructing an officer" and not having reflectors on his bicycle pedals.

Police policy means shit if the officers are not trained appropriately.
http://www.photographyisnotacrime.com/ [photograph...acrime.com] is a good clearinghouse for stories about police & private securitywho don't know how to do their jobs.

Re:Just in Illinois?

[cdecoro]

No, no, no. Not at all. The Supreme Court has been overwhelmingly clear that a refusal to grant certiorari (that is, a refusal to hear an appeal) has no precedentiary value *whatsoever.* But you're not the first to make that mistake. See, e.g., United States v. Carver, 260 U.S. 482, 490 (1923) ("The denial of a writ of certiorari imports no expression of opinion upon the merits of the case, as the bar has been told many times."), quoted in Teague v. Lane, 489 U.S. 288, 296 (1989).

If the Court wishes to express that a lower court case is a "non-case," as you put it, they will make what is known as a summary disposition.

Re:caselaw summary

[immaterial]

Not sure where you're going with that; it sounds like you're trying to disagree with me (or the DOJ I guess?) but the whole point of my post was that the DOJ thinks officers need to be "trained appropriately." They also address your point that officers tend to go for obstruction/interference charges (since generally recording isn't actually illegal it is a common "workaround"):

...an individual’s recording of police activity from a safe distance without any attendant action intended to obstruct the activity or threaten the safety of others does not amount to interference. Nor does an individual’s conduct amount to interference if he or she expresses criticism of the police or the police activity being observed. ...BPD’s general order specifically suggests that, if a bystander’s actions are “approaching the level of a criminal offense,” supervisors should “recommend a less-intrusive location to the bystander from which he/she may continue to observe, photograph, or video record the police activity.” ... BPD should revise its general order to provide “members” with the same authority. ... encourage officers to provide ways in which individuals can continue to exercise their First Amendment rights as officers perform their duties, rather than encourage officers to look for potential violations of the law in order to restrict the individual’s recording.

Now, it's quite possible for departments or individual officers to ignore this advice (like BPD did basically immediately after getting it, as we PINAC readers are aware) but at least this document will help in any ensuing civil cases should you find yourself targeted unjustly - and one hopes as that becomes more common (and recording becomes more common in general) police departments across the country will start to get it.

Re:The problem is presentation, not recording.

[dkleinsc]

The rules are actually not all that complicated.

Police can legally use force:
- To subdue a civilian who is physically resisting arrest. If that civilian is using or threatening to use deadly force, such as shooting at cops, then the cops can shoot back.
- To protect another civilian. If a bad guy is attempting to kill somebody, the cops can shoot him. If the bad guy is trying to beat someone up, the cop can use non-lethal force to stop him and arrest him.

Police cannot legally use force:
- Towards a civilian that is not physically resisting them.
- Towards a civilian that is unable to resist them (e.g. handcuffed and pinned on the ground).

Police cannot legally use deadly force towards a civilian that does not present a lethal threat to the officer or another civilian. For example, a cop encountering a fistfight is supposed to use non-lethal force only.

The Rodney King beating was a crime (in my view) because the cops continued to use force after Rodney King was unable to resist.

Re:In Illinois?

[CelticWhisper]

They exist. Qik [qik.com], UStream [ustream.tv], and TapIn [tapin.tv] are among them. TapIn in particular was designed for protestors and recording authorities, and provides no means to delete footage on the recording device itself - it must be done from the user's account page, by which time the video will have been downloaded and redistributed beyond the user's (or the police's) ability to control.

Re:caselaw summary

[Wrath0fb0b]

remember they can hold up to 5 days without charge in most places

-5 Factually Incorrect.

The Supreme Court has said that you are entitled a probable cause hearing in front of a judge no more than 48 hours after arrest, and even then as promptly as reasonably possible.

See http://www.law.cornell.edu/supct/html/89-1817.ZO.html [cornell.edu]

Where an arrested individual does not receive a probable cause determination within 48 hours, the calculus changes. In such a case, the arrested individual does not bear the burden of proving an unreasonable delay. Rather, the burden shifts to the government to demonstrate the existence of a bona fide emergency or other extraordinary circumstance. The fact that in a particular case it may take longer than 48 hours to consolidate pretrial proceedings does not qualify as an extraordinary circumstance. Nor, for that matter, do intervening weekends. A jurisdiction that chooses to offer combined proceedings must do so as soon as is reasonably feasible, but in no event later than 48 hours after arrest.

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