Legal questions arise on filming of police in public places

By Susan Johnson
Copy Editor

Possibly as a part of overzealous efforts in law enforcement, a disturbing pattern has been emerging in communities across the country. As reported by PrisonPlanet, “American citizens, innocent of a crime, filming a public servant performing their duties in public, have been targeted and had their constitutionally protected rights destroyed.”

Various cases that have been reported include the following:

• Michael Crooks, a Las Vegas resident, who was brutally attacked by an on-duty police officer for filming the officer from his own property;

• Emily Good, who was forcibly removed from her own property and arrested for filming Rochester, N.Y. police performing a routine traffic stop;

• In 2007, Simon Glik, a Boston. lawyer, was arrested for filming three police officers “struggling to extract a plastic bag from a teen-ager’s mouth”;

• Father James Manship of New Haven, Conn., who was arrested and charged with a misdemeanor in 2009 for filming police officers in a store run by Ecuadorian immigrants. Father Manship claimed he was recording a case of police harassment targeting Latinos.

In Illinois, Chicago artist Chris Drew used a video camera to record his own arrest and is now facing a possible 15 years in prison under the Illinois eavesdropping act. Another Illinois man, Louis Frobe, was also arrested for filming his own traffic stop and also found himself facing 15 years in prison. After a night in jail, Frobe was released the next day, and all charges against him were dropped. However, he now plans to file a federal lawsuit to challenge the constitutionality of the law. The Attorney General’s Office has dismissed it, but legal precedent indicates he has a good chance to win the case in court.

Another recent case was that of Michael Hamilton, an Illinois mechanic who was facing life in jail for recording police officers. Despite the state’s aggressive prosecution, Circuit Court Judge David Franklund ruled that Allison’s First Amendment rights were violated, that the eavesdropping law was unconstitutional, and the case was dropped.

What is the Illinois eavesdropping act?

The Rock River Times asked Attorney General Lisa Madigan’s Office for her views, but after repeated calls, they did not want to comment directly on the issue. One of her staff sent us a copy of the Illinois eavesdropping act, Article 14 under 720 ILCS 5 — Criminal Code of 1961. The act is lengthy, so we quote briefly from some sections here:

“An eavesdropping device is any device capable of being used to hear or record oral conversation or intercept, retain, or transcribe electronic communications whether such conversation or electronic communication is conducted in person, by telephone, or by any other means; [not including a device to help the deaf or hard-of-hearing] …

“An eavesdropper is any person, including law enforcement officers, who is a principal, as defined in this Article, or who operates or participates in the operation of any eavesdropping device contrary to the provisions of this Article …

“(e) Electronic communication.

“For purposes of this Article, the term electronic communication means any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or part by a wire, radio, paper, computer, electromagnetic, photo electronic or photo optical system, where the sending and receiving parties intend the electronic communication to be private and the interception, recording, or transcription of the electronic communication is accomplished by a device in a surreptitious manner …”

Response from local officials

The Rock River Times contacted some local officials for comment. Rockford Police Chief Chet Epperson told us: “I am going to defer to the State’s Attorney’s Office on this. You are looking for a legal opinion. It doesn’t really matter if I have personal comments or not. Whatever the law is, we’ve got to follow the law. If there is something out there that we should be doing, I’ll wait for the attorney general. I think people film and take photographs of things from the curb at crime scenes, and I don’t see anything illegal about that. I’ll defer to the state’s attorney.”

Winnebago County State’s Attorney Joseph Bruscato responded: “It depends on where you are and what’s going on. The eavesdropping statute of the State of Illinois requires that both parties acquiesce to filming and taping of something unless you are located in a public locale, where there’s no expectation of privacy. The other consideration is one of obstruction of justice. When the police are engaging in an arrest, they have a right to control what’s going on at the scene, and they can’t allow a person — it’s not uncommon for police to tell someone that they can’t talk on their cell phone because the police need somebody’s attention and to be cognizant of what they’re trying to accomplish. … Between the resisting and obstruction of justice law, and the eavesdropping statute, it may or may not be appropriate, depending on what the facts are. If you were to say that — I would consider the eavesdropping and obstruction of justice statute to determine if the facts warranted that. My guess is that if somebody is being arrested, that they are sitting there with the video camera, it is probably difficult for the police to carry out their official duties. That’s probably problem No. 1. Problem No. 2 is the eavesdropping statute, depending on where you are when this is going on … how you handle the logistics of an arrest.”

Winnebago County Sheriff Richard Meyers said: “There were a couple of cases … in the Rodney King case, somebody was there and happened to have a camera. It was my understanding that you can’t prohibit [people] from filming. Therefore, in everything else, it would be where you’re at and what the situation is. But according to court decisions — there was an agency where someone made an arrest — some police agency, I read — somebody that was filming an arrest that was taking place, and the police confiscated the camera. That was thrown out, and the camera returned, and the court decision was [established] due to that.

“In the stuff I’ve seen on the Internet, they sent out questions from national and state associations of chiefs of police and sheriffs. We are always getting bulletins on new case laws from a variety of sources. That was a subject matter that was recently covered in one of these bulletins.”

From the Nov. 2-8, 2011, issue