This article first appeared in the St. Louis Beacon, Feb. 6, 2011 - At a time when millions of Americans have a cell phone with video and audio capability and when videotapes of police misconduct often are the stuff of news reports, Illinois is leading the nation in prosecuting citizens who tape officers in public.
Illinois has one of the three most restrictive eavesdropping laws in the country, along with Maryland the Massachusetts. And Illinois police and prosecutors are not shy about using the law to punish the taping of arrests and interrogations.
Chicago authorities recently have charged a street artist and a stripper for violating the law. Both face 15 years in prison.
The street artist, Charles Drew, actually intended to get arrested in an act of civil disobedience targeting a Chicago ordinance banning the sale of art on the street without a permit. That would have been a misdemeanor, but he ended up charged with a felony for arranging a tape of his arrest.
Tiwanda Moore, the 20-year-old stripper, went to police headquarters to complain about an officer she said had fondled her and left her his personal phone number. An officer receiving Moore's complaint tried to dissuade her from pursuing it. She began recording the conversation with her cell phone. When officers discovered what she was doing, they charged her under the eavesdropping statute.
Moore was scheduled to go trial this week and Drew in April. Moore is relying on a exception to the eavesdropping law that allows a conversation to be recorded surreptitiously if a crime is about to be committed She maintains that the officer's effort to discourage her from filing a complaint was committing a crime.
The ACLU in Illinois went to court to challenge the state eavesdropping law as a violation of the First Amendment, but a Chicago judge threw out the suit last month. The ACLU is appealing.
Most states, such as Missouri, allow conversations to be recorded as long as one party to the conversation consents. That means that a newspaper reporter in Missouri, for example, generally can record a telephone conversation without telling the person on the other end of the line.
Twelve states have two-party consent laws for eavesdropping, meaning that all parties must consent to an audio recording. But Illinois, Maryland and Massachusetts have the toughest interpretation and enforcement. The other nine states have an exception to the law that allows recording of public police conversations. In Maryland, one of the three states with tough laws, the state attorney general has issued an opinion indicating that those taping officers in a way that does not interfere with their work should not be prosecuted.
Prosecutors and police in Illinois, however, think the strict enforcement of the law is important. The Fraternal Order of Police in Chicago said audio recording of police on the street performing their duty could affect how the officer does his job.
That is exactly what civil liberties groups want. The public impact of the Rodney King tapes is well known. Video and audio taping of police is often the best evidence of police misconduct. A recent surveillance video of police officers in Houston beating a teenage burglary suspect has resulted in criminal cases and discipline against the officers and provoked a strong public reaction after it was released to the media.
The National Press Photographers Association sees the prosecutions of those videotaping police activities in public as the latest effort of authorities to harass photographers performing their job. In a statement, the association said:
"Despite consistent court rulings protecting the First Amendment rights of both citizens and the media to take photographs in public places, and despite many law enforcement agencies spelling it out in their official policies, the officer on the street either doesn't get the word or decides to act on his own in the name of 'security' or 'terrorism laws,' often citing rules that don't exist and exerting authority that's non-existent. And recently in some states police have started citing old wiretapping laws that have been on the books for decades as their excuse for ordering photographers to cease videotaping officers as they're doing their jobs in public, either during traffic stops or street arrests or while interfering with photographers who are breaking no rules and who are posing no threats to safety."