Prosecutor drops case under Illinois eavesdropping law

An Illinois state’s attorney dismissed charges against a 28-year-old man who faced felony charges for recording interactions with a police officer during a traffic stop, calling the state's controversial eavesdropping law unconstitutional.

"My real problem with the law is that it makes a felony out of what is, in many cases, perfectly innocent conduct that even may be beneficial conduct," said Ron Dozier, the state's attorney in McLean County. "As it [the law] is now it is just way over broad and it violates people’s constitutional rights to freedom of speech and association."

Dozier joins other Illinois leaders including, Chicago Police Superintendent Garry McCarthy and Illinois Rep. Elaine Nekritz, in speaking out against the law. At a panel discussion in January, McCarthy recognized the importance of audio and video recording in documenting police interactions with civilians. Working to reform the law, Rep. Nekritz is the leading sponsor of a bill moving through the Illinois State Legislature — H.B. 3944 — aimed at decriminalizing the audio-recording of police while performing a public duty in a public location. The Reporters Committee for Freedom of the Press submitted testimony to the State House in support of this bill.

The Illinois eavesdropping statute requires a person have the consent of all parties in a conversation before audio recording the exchange. While this is similar to statutory requirements in other states, Illinois' law is particularly strict in that it applies equally to private and public communications. The statute also states that a person need not be hiding their recording device to be in violation of the law.

Pertaining to privacy, the current law defines a conversation as, "any oral communication between two or more persons regardless of whether one or more of the parties intended their communication to be of private circumstances," meaning recording a conversation or arrest in public space, without consent, violates the law. Such violations are classified as felony offenses and carry stiff penalties of up to 15 years in prison for recording public employees including, law enforcement officers, judges and state’s attorneys.

Of some concern to opponents of the eavesdropping law is the annual G-8 Summit — from May 15 to May 22 — when thousands of journalists are expected to descend upon Chicago. The way the law stands now, news crews reporting on the streets of Chicago could be violating the statute if their visual recordings include audio.

The case at hand was thrown out after Cartenous Turner — a Normal, Ill. resident — was charged with "knowingly and intentionally" using an eavesdropping device — his cell phone — to record a police officer, without the officer's consent, during a traffic stop, according to court documents. Turner also faced charges of possession of marijuana and resisting arrest, but all charges against him were eventually dropped.

"If you can imagine a Rodney King situation, where it is perfectly legal to have a video on it to show what happened . . . you can see a street crime going on and the oral part of that conversation, as well as, the visual is a great benefit to determining what happened, who was in the wrong or if wrong-doing was going on and you could be the one getting a felony," Dozier said.

Similar cases across the state have drawn criticism to the constitutionality of the law. A trial judge, in September, ruled the law unconstitutional in the case Illinois v. Allison, where a man faced up to 75 years in prison for recording police and court officials. The Supreme Court of Illinois is slated to hear the case later this year.

Additionally, a jury found a Chicago woman, Tiawanda Moore, not guilty of violating the statute after she recorded officers she felt were preventing her from filing a sexual harassment claim. Moore fell into an exemption of the law that states, a person can record, “under reasonable suspicion that another party to the conversation is committing, is about to commit, or has committed a criminal offense against the person.” Moore has since filed a civil rights lawsuit against the officers.

The constitutionality of the law is also under consideration by the U.S. Court of Appeals in Chicago (7th Cir.), in the case of American Civil Liberties Union of Ill. v. Alvarez. The Reporters Committee filed a brief in support of the ACLU in that case.

Related Reporters Committee resources:

· Amicus Brief in ACLU v. Alvarez

· Reporters Committee for Freedom of the Press G-8 Hotline

· Testimony in support of Illinois bill on audio recording police officers