Bill to rescind penalty for taping police officers fails, while state seeks to withdraw appeal in recording case

A bill in the Illinois House of Representatives that would have created an exemption from criminal liability under the state's broad eavesdropping law was defeated by a vote of 59-45. HB 3944 would have decriminalized the recording of police officers publicly engaged in their public duties.

"We always knew this would be a heavy lift, and I guess it was heavier than we thought," said state Rep. Elaine Nekritz, the chief sponsor of the bill.

Nekritz attributed the loss to "post-primary hangover," and opposition from the police. Some members who initially supported the bill withdrew their support, she said. Others voted against it when it became clear that it would not pass, in order to avoid unnecessarily angering the police, according to Nekritz.

But not all members of the Illinois police community oppose recording. Chicago Police Superintendent Garry McCarthy has expressed support for recording as a means of determining what happened in conflicts between citizens and police. "There's no arguments when you can look at a videotape and see what happened," McCarthy said, according to the Chicago Sun-Times.

In a related development, the office of the Illinois Attorney General asked the state Supreme Court to dismiss its appeal in People v. Allison. Michael Allison was charged with five counts of violating the Eavesdropping Act for recording various public employees and officials including police officers and a judge.

In September, an Illinois trial court agreed with Allison and ruled that the law violated the First Amendment. The state appealed that ruling to the Illinois Supreme Court, but in a motion dated Tuesday and received by Allison's lawyer today, stated that "the People have determined that they no longer wish to pursue this appeal."

"I'm disappointed. I thought the statute needed consideration by our Supreme Court," said Tony Sunderman, who represents Allison.

In the motion, the Attorney General asked that, if the Supreme Court denies their request to withdraw the appeal, they be granted an additional 35 days to file their first brief in the case. Sunderman, however, thinks it unlikely that the court will deny the State's request.

"It would be very unusual" for the court to require the state to continue the appeal, he said. If the motion is granted, the lower court's ruling that the law is unconstitutional will stand.

The Illinois law makes it a crime to record any conversation without the consent of all parties, regardless of whether the parties intended their conversation to be private under "circumstances justifying that expectation." It also applies regardless of whether the recording is made openly or secretly.

The Illinois eavesdropping law has been attacked on a number of fronts, both in the courts and in the legislature. Earlier this month, Judge Stanley Sacks of the Cook County Circuit Court declared the statute unconstitutional because it "lacks a culpable mental state and subjects wholly innocent conduct to prosecution."

The law is also the subject of a federal lawsuit filed by the American Civil Liberties Union of Illinois. That case, ACLU of Illinois v. Alvarez, is currently before the U.S. Court of Appeals in Chicago (7th Cir.). Oral argument was held in the fall. The Reporters Committee filed a brief in support of the ACLU.

The law is implicated in a civil rights lawsuit. In January, Tiawanda Moore sued the city of Chicago for prosecuting her under the law. She recorded two police officers who she said were preventing her from filing a complaint with the department. She was tried and found not guilty last year.

The Illinois Attorney General's office declined to comment on the Allison case.

Related Reporters Committee resources:

· Police, Protesters and the Press: The right to record in the wrong places

· News: Ill. judge declares eavesdropping law unconstitutional

· Police, Protesters and the Press: Woman faced 15 years for recording police