U.S. Supreme Court to Illinois, Indiana, and Wisconsin Residents: Go Ahead and Record Police

Yesterday, the U.S. Supreme Court issued a ruling refusing to hear the Illinois state government’s appeal of a court decision that blocked the state from prosecuting citizens who record the police.  For citizens under the jurisdiction of the Seventh Circuit Court of Appeals (Illinois, Indiana, Wisconsin), the Supreme Court’s decision means that it is basically unconstitutional for residents to be prosecuted for recording police in the performance of public duties, for example, when citizens are pulled over, arrested, or otherwise stopped, at least under any law that resembles the one at issue in this case.

The Illinois state government had previously sought to punish residents via the “Illinois Eavesdropping Act,” enacted in 1961, which made it a Class 1 Felony, punishable by 4-15 years in prison, to record police on the job.  A lawsuit was brought by the ACLU of Illinois (ACLU v. Alvarez), arguing that the Illinois Eavesdropping Act was unconstitutional and in violation of civil rights, including citizens’ First Amendment rights. The Court of Appeals for the Seventh Circuit, which oversees appeals in the Chicago and Cook County area (as well as Indiana and Wisconsin), agreed and refused to enforce the law, which is one of the harshest in the country.  The Illinois state government filed an appeal to the U.S. Supreme Court, which fortunately refused to hear the case, leaving the Seventh Circuit Court of Appeals’ ruling in place —  meaning that Illinois residents cannot be prosecuted for a felony under the Illinois Eavesdropping Act for recording police. The Seventh Circuit’s law would be considered “precedential” authority for similar laws, whether in Illinois, Indiana, or Wisconsin.

The case will now be now headed back to Illinois federal court (Northern District), where the ACLU will probably ask the temporary injunction barring the Illinois state government from enforcing the law to become permanent. If that is granted by the Court, that will effectively be the end of the Illinois Eavesdropping Act.  Lawmakers will have the option, however, to try to enact different laws.

Is it Legal or Illegal to Record Others?

Although the ACLU v. Alvarez case brings some clarity to the rights of citizens under the jurisdiction of the Seventh Circuit Court of Appeals (Illinois, Indiana, Wisconsin), the issue of whether it is legal or illegal to record others is often tough to answer because it depends on the nature of the circumstances.

Federal law allows telephone and in-person recordings, as long as one person who is there and is party to the discussion consents.  This means that you can record a conversation you are a party to, even if the other person is not aware that the conversation is being recorded.   38 states and the District of Columbia  allow individuals to record phone calls and conversations to which they are a party.  12 states, on the other hand, require everyone involved in the discussion to give their permission before it is permissible for it to be recorded. These states consist of California, Connecticut, Florida, Hawaii (if the recording is done by a hidden device), Illinois, Maryland, Massachusetts, Montana, Nevada, New Hampshire, Pennsylvania, and Washington. Recording a discussion or conversation, however, is different from wiretapping, which is done in secret without any of the parties’ knowledge, and which can be illegal under state and federal laws.

Recording Police

In addition to the above, there are special rules for recording the police, depending on where you live.  It has been ruled as constitutional under the First Amendment to record (film or voice) the police performing public duties in public places in the 1st Circuit (Maine, Massachusetts, New Hampshire, Puerto Rico, and Rhode Island), 7th Circuit (Illinois, Indiana, and Wisconsin), 9th Circuit (Alaska, Arizona, California, Guam, Hawaii, Idaho, Montana, Nevada, the Northern Mariana Islands, Oregon, and Washington), and 11th Circuit (Alabama, Florida and Georgia).

Changing Legal Landscape.

As seen from the most recent activity on this issue, this area of state law is clearly in a state of change. There is currently a legal battle brewing in Massachusetts about whether the recording of police (constitutional in Massachusetts) has to be done “openly” or whether it is acceptable for the recording to be done “secretly.” Elsewhere, a New Hampshire journalist is currently facing 21 years for filming a fight between a cop and student in school, that resulted in a police brutality case.  The federal government and civil rights groups, however, have both encouraged citizens to exert their rights. The U.S. Department of Justice has taken the position that it is clearly within the First Amendment rights of individuals to record local and state police. The ACLU of New York even offers free app that gives citizens a guide to recording police, if needed, to help citizens document ongoing problems with NYPD.

For now, the reality is that recording police is a lot like asking officers for their names and badge numbers: while it is legal, it will annoy or irritate the police officers, and rarely result in any breaks being given to the person asking.  With greater protections afforded to citizens’ civil rights, however, the legal landscape will change, and hopefully lessen the frequency of excessive force and other incidents of police brutality.