Anita Alvarez

Chicago’s State Attorney doing all she can to keep Draconian State Eavesdropping Law Alive

For those of us with common sense and a basic understanding of Constitutional law, there is no question that Illinois’ Draconian eavesdropping law should be struck down as unconstitutional.

After all, it is the only state in the union that makes it a felony to openly record police in public, even when they don’t have an expectation of privacy; activity that is protected by the First Amendment anywhere else in the country (as much as police like to pretend otherwise).

Making the Illinois eavesdropping law even more Stalinist is the fact that police are exempt from the law, allowing them to record citizens while arresting those citizens for recording back.

Even Chicago’s top cop Garry McCarthy believes the law should be abolished.

But then you have Cook County State Attorney Anita Alvarez – an ambitious career prosecutor with a history of selective prosecution – who is doing everything she can to keep the law in place, even after the 7th U.S. Circuit Court of Appeals  ruled in May that it “likely violates” the Constitution, sending it back down to the lower court to be tried.

Undeterred by that ruling, Alvarez halted the lower court’s proceedings to allow her to petition the 7th Circuit to review the case en banc; Latin French Legalese meaning all ten appellate judges would have had to rule on it instead of the three that did.

When that was laughed down, she petitioned the U.S. Supreme Court in the hopes it would overrule the 7th Circuit’s decision.

I imagine the Supreme Court could have settled the issue once and for all and that would not have been such a bad thing considering it has never addressed the issue of citizens having the right to openly record cops in public.

But the Supreme Court on Monday refused to hear the case because it agreed with the 7th Circuit, which is even a bigger slap in the face to Alvarez, sending it back down to the lower court where the debate began in 2010 after the ACLU filed a preliminary injunction to stop these absurd arrests; fourteen which had been prosecuted during the previous eight years, including three by Alvarez.

But this time, Alvarez can’t depend on Judge Suzanne Conlon to blindly dismiss the ACLU’s complaint as she did twice before on the basis that she failed to see the Constitutional implications in the law, which is what prompted the ACLU to appeal it before the 7th Circuit in the first place.

This time the issue will go before Judge Sharon Johnson Coleman who is almost sure to to use the 7th Circuit’s decision in her ruling as well as this week’s Supreme Court’s acceptance of the decision.

The 7th Circuit’s decision is also in accordance with the 1st Circuit Court of Appeals’ Glik vs Boston landmark case in 2011 case that confirmed citizens have the right to record cops in public without fear of getting arrested, which is probably the main reason the Supreme Court refused to hear it.

But even when and if Coleman rules the law unconstitutional, Alvarez will no doubt appeal it before the 7th Circuit again, which should be so annoyed with her by this time that it should waste no time in ruling the law unconstitutional and hopefully give her a good kick in the ass in the process.

And once all that happens, the law will be void and have to be redrafted.

And then maybe somebody can get Alvarez on camera to ask her what the hell was she thinking.

For a deeper legal analysis, view the articles at the ACLU and the National Press Photographers Association as well as Radley Balko’s piece.


About Carlos Miller

Carlos Miller is founder and publisher of Photography is Not a Crime, which began as a one-man blog in 2007 to document his trial after he was arrested for photographing police during a journalistic assignment. He is also the author of The Citizen Journalist's Photography Handbook, which can be purchased through Amazon.

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  • pcman312

    The selective prosecution link isn’t working. It looks to be a typo in the article as well as a missing link.

    • Carlos_Miller

      I fixed the link. Is there another missing link? Where is the typo?

      • John Mitchell

        Typo: “en blanc” should be “en banc”

        • Carlos_Miller

          Just fixed it. As well as the other one mentioned earlier. Thanks.

        • kc2idf

          Also, it is French, not Latin.

  • Tom Joad

    Typo might be “history A selective prosecution”? “A” instead of “of”?

  • steveo

    Scotus just said “why are we wasting time on this? ” Illinois, get over it and your legislature should just do the right thing and change the eavesdropping law to one party consent like the majority of states. All the two party, all party consent states should change their laws to one party consent, and don’t make the argument that you are stopping government from recording us, that’s BS.

  • DrCos

    Two party consent isn’t the issue, it’s the ‘reasonable expectation of privacy’ part that’s the hangup.
    Police during a stop/arrest have no (legal basis for) such expectations.

  • ExCop-Lawyer

    I’m not surprised that SCOTUS denied cert. — the State’s argument was incredibly weak.

    You know it’s not going to be easy when you put in your petition that Glik v. Cunnife supports the state prosecution of those recording the police in public.

    Really? I guess you could make that argument, but I wouldn’t want to be the one making it.

  • Phred

    What is Alvarez’s principal reason for wanting to enforce this stupid law? I can’t find anything that states her reasons for wanting it.

    • ExCop-Lawyer

      I don’t think she’s stated an explicit reason. I would imagine that it is the fact that it takes away another charge that she can use, either as leverage for a plea, or as a way of suppressing those that would hold police and other public officials accountable.

      As a secondary matter, we are talking about Chicago, which doesn’t have the best reputation as far as either police or public officials, going back past Richard J. Daley. They have a long tradition of corruption and other dealings that don’t hold up well in the light of day. No such organization or culture willingly gives up control, and by losing the eavesdropping statute, they’ll lose control.

    • Carlos_Miller

      She believes that lifting the law would allow citizens to record cops having private conversations with victims but that’s stupid because they usually talk to victims within crime scenes that are taped off to other citizens and media.

  • HenryGomez

    A right wing Republican, I’m sure. (sarcasm).

    • Rob

      ROFL! Well, she’s a hispanic woman, in one of the most liberal cities in the United States. Nope, she’s a “Party of Tolerance” Dem.

  • Abe

    Have you heard about off duty CPD officer Anthony Abbate beating a female bartender?

    His Defense atty attempted to block the damaging security tape of the incident claiming police privilege under the same Illinois law that Alvarez is defending here.

  • David

    Carlos, on the up side check this video,

    Shocking video, cop protects the right to film TSA

  • BumFarto

    I suppose the 7th Circuit’s opinion has no impact in Florida, but logic would indicate that FL’s wiretap law cannot withstand Constitutional scrutiny when it is applied to public employees acting in any capacity visible to the public.

    • ExCop-Lawyer

      It is not binding on Florida, but the fact that most of the circuits have rulings like the 7th’s, it would be persuasive.

  • askjghaiosuuf

    And the gracious taxpayers of Illinois are paying for this! Remember THAT when you vote!

  • Rodney James Hayhurst

    It’s over. By refusing to hear the case the Supreme Court has effectively put and end to the discussion. The illinois law is unconstitutional.

  • Data

    she Cant Understansd Nomal Thinking

  • FascistNation