Editor’s note: Part one of this series appeared in the Jan. 25-31 issue.

By Susan Johnson
Copy Editor

The Rock River Times had spoken with Joshua Kutnick, an attorney who represents Chris Drew, an artist who was accused of illegally audio-recording police during a 2009 arrest for selling art on a Chicago street without a permit. Kutnick told us, “Another interesting one was the Ralph Braseth case, Loyola University.” [This case involved Braseth videotaping the arrest of a teen-ager, when, according to the complaint filed, Braseth’s camera was seized and his tape deleted.] “It’s being called into question whether it’s unconstitutional and whether the state’s attorney should be pursuing these cases. I think the legislators also need to look at it. Here’s the problem: politics. The big problem is, how do you change the law? The legislators are in Springfield, but who has the ear of the politicians? Not the general public, but the police lobby. That’s who’s powerful, and their lobby exists in Springfield. This is why this case is so hot. You have a conflict between state law enforcement interests and public interests.”

The Fraternal Order of Police in Chicago, which supports the Illinois Eavesdropping Act, was asked for comment. TRRT made several calls to their office, but the union refused to make any statement.

The professor vs. the police

Ralph Braseth, the Loyola University Chicago journalism professor who ran afoul of the Illinois Eavesdropping Act, granted us an interview. He filed a complaint against a Chicago police officer who allegedly detained him after he videotaped the arrest of a teen-ager. After the officer ran a background check, Braseth was released, and he was told to hand over his camera. Then, Braseth recalls, the officer erased his tape.

TRRT: Were you arrested while filming a documentary? How did the police approach you?

Braseth: “I was never arrested. I was never charged with a crime. I was detained. I’ve been here for two years, since the middle of summer. During the summer, I just started noticing that on Saturday nights, hundreds of young teen-agers from the South Side would be coming out of the CTA stop on the corner of State and Chicago. … They mainly go there to meet other people. … They are also in a really nice part of town, and they get to go to some malls, and who can blame them? Where they come from, there are no malls. It’s 95 percent African-American. So you have all these young black teen-agers coming into what is basically an all-white affluent neighborhood. That’s the story I was interested in ­— I was fascinated by it. So about every other Saturday night I would go, get out my camera, and start doing my reporting, getting my interviews and getting a better idea of what was going on — talking to businesses and hotels, and none of them wanted to go on the record. But most of the businesses don’t want these kids down there. Some of them in the hotels say the people that stay there get afraid because they see ‘roving gangs of young, black people.’ They don’t happen to be wielding clubs. There’s always a bad apple, so there has been some trouble, but for the most part, they are just young teen-agers out for a good time in a nice part of town.”

TRRT: What was the official charge against you? The Chicago Tribune article says the eavesdropping law was never mentioned. Did your tape include audio?

Braseth: “What happened was — I was down at the subway, and I watched a young man get arrested for jumping the turnstile, and I was far away — like 40 or 50 feet. You couldn’t hear anything in those subways or the ‘El.’ It was so loud, you couldn’t hear anything. One of the police officers turned around, and he saw me shooting video, and he made a beeline straight for me. I put the camera back in my pocket. He told me that I was ‘interfering with an investigation.’ I’m not sure that’s law, but that’s what he told me. He put my hands behind my back and handcuffed me. Then, he and his partner took me upstairs from the El, and put me in the back of the squad car. There was audio on it, but you can’t hear anything other than yelling. You can’t discern what anybody is saying.”

TRRT: What is the progress on the case so far?

Braseth: “I’m waiting for Internal Affairs to give me a report. They haven’t done that yet. That’s been several weeks, maybe a month. I haven’t heard anything back yet. I’m interested in what that report has to say before I do anything.”

TRRT: So you haven’t ruled out a lawsuit yet?

Braseth: “A lawsuit isn’t something I’m particularly interested in doing. That’s my gut feeling. However, I’ve spoken to scholars in constitutional law and some attorneys in Chicago, and one of the things they say is, if you really want to change the law (and that’s what I really want to happen), then you need to hurt them with the penalty of paying money. That’s why you should sue them, because that’s what they understand. But I’m not certain [at this point]. But one of the things I’m interested in doing is bringing this to the attention of as many people as possible, and to help them understand why it’s important not just for journalists but for every citizen in the state of Illinois.”

Rewriting the law?

State Rep. Chapin Rose (R-Charleston) had attempted to get the issue clarified earlier by writing new legislation. He decided to rewrite the law to set down rules on exactly under what conditions recording someone was illegal. His bill would have amended the language to make it legal to record police performing their official duties as long as the recording did not interfere with those duties, but it was ignored by the House committee. We spoke with Rep. Rose for an update.

TRRT: You had previously written a bill to redefine the Illinois Eavesdropping Act. When was that, and what initiated your taking that action?

Rose: “Five years ago or more. I was a prosecutor. This law has always bothered me. If you asked 100 people if they could audiotape somebody, no one would know it is a problem. They certainly wouldn’t think it was a felony offense. Too, it was certain things will only get worse. At that time, cell phone videotapes just came online … you could see where this was headed. More and more people would do it. But there was also a safety situation. I wanted to provide a bright line ruling for how people could do this. You don’t want somebody standing between a police officer and an arrestee. They could get hurt or cause the officer to get hurt, or cause a third person to get hurt. We had to come up with some way for this to go and be safe for everyone. If you ask the average guy on the street if it’s a felony offense to videotape, he’ll say no. And with the proliferation of cell phone cameras, all these people go out, and you can’t get in an officer’s way at a traffic stop when he’s making an arrest. My thought was to be proactive about it. First, undo this ridiculous law and provide a way that people could do it and protect the integrity of the situation from a procedural standpoint. I like having a tape because if the bad guy is going to say something stupid like, ‘I robbed the place,’ it’s on tape.”

TRRT: Why do you think it was so poorly received in the committee?

Rose: “I don’t think that many people at the time thought this was going to be a problem. I don’t think many people had the foresight to think this was going to be an issue. There were more pressing problems, and law enforcement didn’t like the idea. Law enforcement had questions — they weren’t completely opposed. They just had a lot of questions. One of the sheriffs actually said, ‘This is becoming a problem’ — how they had to pull someone over in a traffic stop, and the driver of the car decided to pull out his cell phone to make sure everything was on the record. The police officer just saw the guy reach in his wallet and pull something out, and the officer thought it was a gun. Thankfully, nobody got hurt, but this was going to happen more and more, and eventually somebody is going to get hurt. We need some kind of system to correct it.”

TRRT: What steps do you plan from here, with several of these cases in the news? Do you plan to reintroduce it?

Rose: “No … Elaine Nekritz [D-Northbrook] has introduced a bill similar to what I had. I don’t need to revisit the issue.”

ACLU opposes the eavesdropping law

The American Civil Liberties Union (ACLU) filed suit against the law in the 7th Circuit Court of Appeals in 2010. TRRT spoke with Harvey Grossman, legal director in Chicago.

TRRT: The ACLU filed suit against the law in 2010. What has happened since then?

Grossman: “The District Court did not believe there was a First Amendment right to audio-record police officers while in public performing their public duties. It went to the 7th Circuit Court of Appeals. We argued that in September, and we are waiting for a decision.”

TRRT: Are there any specific cases in court now that you’re interested in?

Grossman: “There are a number of cases making their way through the courts in Illinois, such as the People v. Michael Allison, and that case is winding its way through. There is another case in the Federal District here as well.”

We also spoke with Adam Schwartz of the ACLU. He told us, “Harvey and I are co-counsels on the case. Harvey is the legal director. I am the senior lawyer.”

On the second question about cases of interest, he replied: “I think the cases we have before the Federal Appeals Court in Chicago, as is the Allison case. Anita Alvarez is the Cook County State’s Attorney. She has prosecuted three people that we know of [who] have been violating the act by videotaping on-duty police, and we have sued her because we want to audio-record police, but we are afraid to do so because we fear that State’s Attorney Alvarez will prosecute, so we have sued her to keep her from prosecuting us.”

To be continued …

From the Feb. 8-14, 2012, issue