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New Law Attempts to Criminalize Recording Police

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Published on: December 11, 2014

How many times have we all seen cell phone recordings of individuals’ encounters with police officers? There have been many showing citizens standing up for their unalienable, God-given rights in the face of officers who attempt to violate those rights. Some have shown “official” written police reports to be blatantly false. The simple “protection” of documenting via video an encounter with police officers who are intent on violating an individual’s rights has been instrumental in exposing those officers and departments who choose not to “protect and serve,” but instead to “violate and intimidate.”

In one central US state, citizens may no longer have the freedom to record encounters with police, due to an amendment that muddies when it is legal or illegal to do so. The state of Illinois has passed an amendment by a stunning majority in both the House (106-7) and Senate (46-4-1) making it a felony to record a “‘private conversation,’ which it defines as ‘oral communication between two or more persons’ in which at least one person has a ‘reasonable expectation’ of privacy.”

According to The Blaze:

Earlier this year, the Illinois Supreme Court struck down a similar law which made recording conversations with police or anyone else without their permission illegal. The court ruled that the state does not have the constitutional authority to criminalize recording in situations where individuals have no reasonable expectation of privacy.

It seems the Illinois legislature is trying to leap the boundary wall established by the Illinois Supreme Court with the “new” language in the amendment. The key language in the amendment that now sits on Democratic Governor Pat Quinn’s desk, awaiting signature or veto, is “reasonable expectation.” Since that is not defined in the amendment, no one can be certain if the law is being broken if they record encounters with police officers.

The independent research and education organization known as the Illinois Policy Institute (IPI) has been openly opposed to this amendment, as its focus is personal freedom and prosperity. The IPI website details the penalties for violating this prospective law, as well as pointing out contents of the old law that have been retained in this new amendment.

Jacob Huebert, senior attorney at the Liberty Justice Center, declared the new law to be as bad as the old one, since no citizen could be sure whether recording any given conversation without permission would be legal. The amendment contains language making consent required when “one or more parties intended the communication to be of a private nature under circumstances reasonably justifying that expectation,” adding “a reasonable expectation shall include any expectation recognized by law, including, but not limited to, an expectation derived from privilege, immunity, right established by common law, Supreme Court rule, or the Illinois or United States Constitution.”

Rights come from God, not law or rule made by man. Maybe the legislators of the state of Illinois do not understand that the US Constitution does not “establish” rights, but limits the government from intruding on God-given, unalienable rights, as should the Illinois state constitution. Then again, maybe the state legislators do understand where rights come from and are attempting to establish government, in their state at least, as the grantor of rights. With the language of this “law,” it sure looks that way.

Huebert contends that it will be difficult to know how courts will interpret those issues, making it difficult for individuals to discern if they are indeed violating the law, thereby committing a felony. According to Huebert, the previous ruling established that officers performing their duty in “public places” had no reasonable expectation of privacy. However, this did not address the officers serving warrants in private offices or residences, and if recording those encounters are legal or illegal, nor does it address telephone conversations with public officials about public matters. Huebert states that a portion of the old law that was kept made it severely punishable to make unauthorized recordings of public officials – “specifically, police officers, prosecutors, judges” – more so than unauthorized recordings of ordinary citizens.

Citizens who violate this law could serve a “minimum of two years in prison with a maximum of four years (class 3 felony),” while the unauthorized recording of an ordinary citizen carries with it a penalty of “a minimum of one year in prison and a maximum of three years (class 4 felony).”

The IPI contends there is only one reason to impose a stiffer penalty on those who record police officer encounters – to discourage people from recording police encounters or to make them afraid to record police encounters. As another aside to this amendment, the IPI states this may cause the state to “disregard” the need for a law requiring all police to wear body cameras.

Even if the police were to wear body cameras, it would beg to question if the body camera would be “conveniently” turned off by some officers during specific encounters with citizens, or if a “technical” error would result in erasure of footage upon allegations of misconduct.

In other words, the state of Illinois is attempting to make challenging an “official” moot. It would become a situation of “he said, she said” with the “public official” yielding the “power” as the “authority” on what happened during the encounter should the “official” claim a “reasonable expectation” of privacy in regards to recordings of encounters.

Huebert, along with the IPI, contend that public officials, given their position, are subject to greater scrutiny than a regular citizen, since they wield some form of power. However, the penalties imposed are greater for recording “public” officials versus a private citizen.

According to the IPI website, all but 12 states allow the recording of conversations with the consent of one individual. The 12 states of California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Pennsylvania, and Washington require consent of all parties.

The amendment passed by the Illinois legislature begs the question of “what about the closed circuit cameras present in so many business establishments that might end up recording police encounters?” Does the “law” exempt those businesses while punishing individuals? One could conclude that entering any business establishment would establish there is no reasonable expectation of privacy, which, in turn, would mean the police officers and other officials should expect to be recorded. But, with this law, police officers and other officials, when in other public places performing their duties, would be afforded a “reasonable expectation” of privacy. So, a citizen on a public street recording their own encounter with police officers would be in violation of a “reasonable expectation” of privacy for the officer; but, a business establishment using closed circuit cameras for “security purposes” might not be in violation of the officer’s privacy if the encounter occurred in a “monitored” business establishment. Or, would they?

The key is the phrase “reasonable expectation” that can change depending on the interpretation applied by the judge charged with ruling on the case and the interpretation by the Illinois Supreme Court. We have all seen how “interpretation” can expand government powers and limit the people.

Everyone has heard the phrase, “living in a fishbowl.” This is often used to describe the life of elected officials and government – open to scrutiny by the people. When “public officials” seek to hide what is public from those charged with its monitoring, the citizens, one can expect further descent into an imperial type of tyranny made justifiable by a highly interpretable law.

Without checks and balances by citizens, officials are left to “monitor, investigate, and police” themselves. After seeing many federal and state government agencies investigate themselves and find “no wrong-doing” even when evidence indicates otherwise, the people are left to the “mercy” of those who wield the most power.

By the same token, police officers who have been accused of wrong-doing, could be exonerated through recordings of encounters between citizens and police by citizens witnessing the interaction.

The recording of encounters by citizens of their interactions with police officers or the recordings of police officers in the line of duty by bystanders should not be considered “illegal,” nor should a law criminalizing individuals who do so be passed. Just as police officers now use dash cams to record encounters with citizens is not considered illegal or inappropriate, since the citizen does not seem to have a reasonable expectation of privacy, the police and elected officials should expect the same. No “public official” should expect any type of privacy when performing their official civic duties, reimbursed by the taxpayers, regardless of location. These officials should expect to be recorded by citizens outside any “authorized” manner. What would be next – the “move along, nothing to see here” mandate law for individuals watching officials performing their duties?

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