Welcome readers from Paso Robles. In addition to the Illinois case, a much more powerful Federal Appellate Court opinion has affirmed a Constitutional Right to videotape police. See Glik v. Cunniffe
IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT
CHAMPAIGN COUNTY, ILLINOIS
THE PEOPLE OF THE STATE OF ILLINOIS, )
)
Plaintiff, )
)
v. ) No. 04-CF-1609
)
PATRICK D. THOMPSON, )
)
Defendant. )
BRIEF AMICUS CURIAE
OF THE AMERICAN CIVIL LIBERTIES UNION OF ILLINOIS
IN SUPPORT OF DISMISSAL OF THE EAVESDROPPING CHARGE
HARVEY GROSSMAN
ADAM SCHWARTZ
SHANNON BARTLETT
Roger Baldwin Foundation of ACLU, Inc.
180 North Michigan Avenue, Suite 2300
Chicago, Illinois 60601
(312) 201-9740
STATEMENT OF INTEREST OF AMICUS CURIAE
The American Civil Liberties Union (“ACLU”) of Illinois is a statewide, nonprofit, nonpartisan organization with roughly 19,000 members dedicated to the principles of liberty and equality embodied in the United States and Illinois Constitutions and civil rights laws. The ACLU of Illinois has a long history of protecting individual rights, including freedom of speech and freedom from improper police practices. Because this case involves these and other rights, its proper resolution is a matter of substantial concern to the ACLU of Illinois and its members. Also, the ACLU of Illinois believes that its special expertise in these issues will make its views of service to this Court.
SUMMARY OF ARGUMENT
The ACLU of Illinois respectfully requests that this Court dismiss the criminal charge now pending against Patrick Thompson pursuant to the Illinois Eavesdropping Act. See 720 ILCS 5/14-1 et seq. His supposed “crime”: attempting to improve his community by monitoring law enforcement activity in local streets and sidewalks. Specifically, Thompson used a commonplace hand-held video/audio recording device to document the on-duty actions and words of police officers in public places, including the sound of conversations between police officers and civilians. There is no allegation that Thompson interfered with police work. Moreover, none of the recorded conversations were private: all took place in publicly accessible places, and the participants used speaking voices audible to passersby. Indeed, in the only recorded conversation for which Thompson is being prosecuted, the only participating civilian was “very loud.”
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See Sgt. David Griffet’s written report of September 3, 2004, regarding his conversation with Allen Wilson.
The First Amendment guarantees the right to petition the government for redress of grievances. This includes the right to collect information regarding the government’s actions. The First Amendment also protects the freedom of the press to report on government actions, and the public’s right to receive this news. These rights promote government accountability, one of our core national values.
These rights are especially important in the context of law enforcement. One reasonable step to ensure police accountability is for civilians to monitor the behavior of police officers in the streets and sidewalks of their communities. Photographs, videotapes, and audiotapes are simply effective monitoring techniques, creating an objective record of interactions between police officers and civilians. The videotape of the Rodney King beating is just one commendable example of such monitoring. With increasing frequency, private individuals and organizations throughout the country are using ordinary video/audio recorders to monitor a myriad of police activities, including at large demonstrations and solitary traffic stops. The recording for which Thompson is being prosecuted is part of this legitimate and constructive civic tradition.
Audio recordings are often a necessary and appropriate part of monitoring police activity. Some police misconduct is verbal, including: (a) the threat of unlawful violence or a frame-up; (b) the use of racial epithets and other foul words; and (c) the failure to comply with department policy, such as the refusal by an officer on request to state his name or explain how to file a civilian complaint. Moreover, it will frequently be difficult or impossible to assess the reasonableness of a police officer’s use of force captured on
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videotape, in the absence of an audiotape of the conversation that preceded, accompanied, and followed that use of force.
On the facts of this case, there is no civil liberties interest in the other side of the scale.1 When people present in a publicly accessible place engage in a conversation in an average speaking voice audible to passersby, they ordinarily can have no reasonable expectation that their words will remain private. This is especially true for government officials, including police officers, who speak while carrying out their public duties. It is also true for the civilians who speak with police officers in public places, including detained civilians. Other civilians can see and hear these conversations, and may lawfully photograph and videotape the likenesses of these civilian speakers. The civilian speakers suffer no invasion of privacy when other civilians also make an audio recording of their words spoken to police officers in an ordinary conversational volume. If a civilian and/or a police officer want to have a confidential conversation, they can simply meet in a private, indoor location.
1 This case does not involve: (a) an audio recorder that is more sensitive than the human ear; (b) the use of a video/audio recorder by government officials, or by private individuals acting on behalf of or in concert with government officials; (c) the use of a video/audio recorder to harass or intimidate a particular private person or a discrete group of private people; or (d) the use of a video/audio recorder in a way that burdens another constitutional right (for example, the right to a fair trial). This Court need not address these hypothetical possibilities in deciding whether to dismiss the charge against Thompson.
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ARGUMENT
The Illinois eavesdropping statute makes it a crime to (i) intentionally (ii) use any machine (iii) to record a conversation (iv) in the absence of consent from all conversation participants.2 Critically, the statute broadly defines “conversation” as “any oral communication between 2 or more persons regardless of whether one or more of the parties intended their communication to be of a private nature under circumstances justifying that expectation.” See 720 ILCS 5/14-1(d) (emphasis added). Thompson is charged with violating this statute by, as part of a police accountability project, intentionally using a commonplace video/audio camera to record the sounds of a conversation in a public place between a police officer and a civilian who was speaking in a “very loud” voice. See pp. 1-2, supra.
This criminal charge should be dismissed, because the Illinois eavesdropping statute is unconstitutional as applied to Thompson’s actions. Specifically, the First Amendment protects his right to document law enforcement activity in the public way, including by means of audiotape, so long as there is no actual interference with police work.
A. The right to document law enforcement activity.
The First Amendment protects the right of civilians to photograph police officers performing their duties in public places. See Schnell v. City of Chicago, 407 F.2d 1084 (7th Cir. 1969) (holding that a class of news photographers who covered the 1968
2 See 720 ILCS 5/14-2(a)(1) (“A person commits eavesdropping when he . . . [k]knowingly and intentionally uses an eavesdropping device for the purpose of hearing or recording all or any part of any conversation . . . unless he does so . . . with the consent of all of the parties to such conversation . . . .”). See also id. at § 5/14-1(a) (defining “[e]avesdropping device” as “any device capable of being used to hear or record oral conversation”).
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Democratic National Convention and attendant demonstrations in Chicago stated a claim against the police for “interfering with the plaintiffs’ constitutional right to gather and report news, and to photograph news events”)3; Connell v. Town of Hudson, 733 F. Supp. 465, 473 (D.N.H. 1990) (holding that a police officer violated the First Amendment by ordering a news photographer to stop taking photographs next to the scene of a car crash).4 See also Williamson v. Mills, 65 F.3d 155, 158 (11th Cir. 1995) (holding that photographing an undercover police officer at a public event “is a facially innocent act,” and that a police officer violated the Fourth Amendment by arresting the photographer).
Moreover, the First Amendment protects the right of civilians to videotape police officers performing their duties in public places. See Smith v. City of Cummings, 212 F.3d 1332 (11th Cir. 2000) (recognizing “a First Amendment right, subject to reasonable time, manner and place restrictions, to photograph or videotape police conduct”); Channel 10, Inc. v. Gunnarson, 337 F. Supp. 634, 635, 638 (1972) (protecting the right of a journalist to use a “motion picture” device to record the arrest of an accused burglary suspect, and holding that “employees of the news media have a right to be in public places and on public property to gather information, photographically or otherwise”).
Also, the First Amendment protects the right to make audio recordings of government activity. See Blackstone v. State of Alabama, 30 F.3d 117 (11th Cir. 1994)
3 The Supreme Court later overruled Schnell on a separate (and here irrelevant) point relating to municipal liability. See City of Kenosha v. Bruno, 412 U.S. 507 (1973).
4 With regard to gathering news in public places, members of the general public have all of the First Amendment rights of members of the press. Moreover, Thompson was collecting videotape and audiotape in part to create a documentary to provide information to the broader public regarding police-civilian relations – a core news gathering function of the press.
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(striking down a ban on a civilian’s use of a tape recorder to document the meetings of a government body). See also Dorfman v. Meiszner, 430 F.2d 558 (7th Cir. 1970) (striking down on First Amendment grounds a ban on radio broadcasting in and around Chicago’s federal courthouse, including in the surrounding plaza and sidewalks and the interior lobby and non-courtroom floors); Iacobucci v. Boulter, 193 F.3d 14 (1st Cir. 1999) (upholding a damages award against a police officer who falsely arrested a civilian for using a video/audio camera inside a publicly accessible area of a government building to record a conversation between government officials after the close of an open meeting).
B. Limits on the right to document law enforcement activity.
The personal privacy of police officers is not a legitimate basis to restrict the use of photographs, videotapes, and audiotapes to document on-duty police activity. For example, in Cassidy v. ABC, Inc, 377 N.E.2d 126 (Ill. App. Ct. 1st Dist. 1978), the Illinois Appellate Court dismissed an undercover vice officer’s invasion of privacy lawsuit against a journalist who surreptitiously videotaped him through a one-way mirror during a massage parlor bust. The court explained:
[N]o right of privacy against intrusion can be said to exist with reference to the gathering and dissemination of news concerning discharge of public duties. . . . [T]he conduct of a policeman on duty is legitimately and necessarily an area upon which public interest may and should be focused. . . . [T]he very status of the policeman as a public official . . . is tantamount to an implied consent to informing the general public by all legitimate means regarding his activities in discharge of his public duties.
Id. at 132.
Moreover, the personal privacy of civilians interacting with police officers in public places is not a legitimate basis to restrict the use of photographs, videotapes, and audiotapes to document police activity. See Connell, 733 F. Supp. at 471 (rejecting as
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“paternalistic” a police officer’s claim that he could forbid a journalist from photographing a decedent in order to protect the privacy of the decedent and his family). When civilians stand in public places and speak in a conversational volume, they ordinarily can have no reasonable expectation that their words will remain private – especially when they speak with police officers, who famously can use everything they say against them. If a civilian speaks with a police officer in a public place, another civilian is free to capture the visual images of this conversation by means of a photograph or videotape. There is no invasion of privacy where another civilian also uses an audio recording device to capture the words. To the extent a civilian and/or a police officer wish to have a private conversation, they can simply retire to a private setting, such as the inside of a squad car with the windows rolled up.
However, civilians who wish to photograph, videotape, or audiotape police officers performing their duties in public places may not actually interfere with that police work. See State v. Lashinsky, 404 A.2d 1121 (N.J. 1979) (upholding the conviction of a photographer who disobeyed a police instruction to get out of the immediate vicinity of a car crash, while a victim in need of medical care was still in the car). Cf. Connell, 733 F. Supp. at 470 (“Chief Brackett could not lawfully interfere with Nick Connell’s pictures-taking activities unless Connell unreasonably interfered with police and emergency functions”); Channel 10, Inc., 337 F. Supp. at 638 (the police could only order a television camera man to turn off his lighting device upon a “reasonable belief that such is interfering with or endangering them in their work”).
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C. Thompson’s documentation of law enforcement activity.
Thompson has attempted to ensure police accountability by using an ordinary video/audio recording device to document police activity in his community. There is no allegation that in doing so, Thompson ever actually interfered with police work, including during the episode for which he has been charged. Among other things, Thompson recorded the sounds of civilians and police officers speaking to each other. There are at least two good reasons to audiotape such conversations. First, many forms of police misconduct are verbal, including threats and racial epithets. Second, if a police officer uses force against a civilian, it will in many cases be difficult or impossible to assess whether such force was proper, in the absence of an audiotape of the relevant conversations that preceded or followed the force.
Moreover, Thompson has helped create a 40-minute documentary based in part on his video/audio footage of police-civilian encounters. A critical part of this documentary is the sound of police officers and civilians talking to each other; without this element, the documentary video images in many cases would be incomplete, confusing, or even meaningless. This documentary has been played in numerous local venues, and hundreds of people have taken the time to see it. This documentary – including the audio element – is an important contribution to the larger discussion in Champaign and Urbana regarding a matter of vital public interest: the quality of relations between police officers and civilians, and especially African-American civilians.
Accordingly, the First Amendment protects the right of Thompson to document law enforcement activity in public places, including the use of a commonplace video/audio recording device to document the sound of conversations at an ordinary
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speaking volume between police officers and civilians. Thus, the Illinois eavesdropping statute violates the First Amendment as applied to the actions for which Thompson has been charged.
CONCLUSION
For the foregoing reasons, the ACLU of Illinois as amicus curiae respectfully requests that this Court dismiss the criminal eavesdropping charge now pending against Thompson.
DATED: October 6, 2004
Respectfully submitted:
___________________________
Attorney for amicus curiae
HARVEY GROSSMAN
ADAM SCHWARTZ
SHANNON BARTLETT
Roger Baldwin Foundation of ACLU, Inc.
180 North Michigan Avenue, Suite 2300
Chicago, Illinois 60601
(312) 201-9740