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Supreme Court’s Denial of Appeal Makes it Legal to Record Police

Lower Court said the law was ‘probably unconstitutional’

The U.S. Supreme Court denied an Illinois prosecutor’s petition to hear a case concerning the enforcement of a state law—the Illinois Eavesdropping Act—which sought to make it illegal to record police officers who are performing their duties in public.

On Nov. 26, 2012, the Supreme Court upheld a July 26, 2012 ruling by the U.S. District Court for the Northern District of Illinois in which the court said the recording of police is “lawful.” The Illinois Court’s decision is the result of a lawsuit filed by the American Civil Liberties Union challenging the Illinois Eavesdropping Act. The ACLU named Anita Alvarez, the Cook County (Ill.) State’s Attorney, as the defendant in the case.

On Aug. 19, 2010, the ACLU filed the lawsuit in federal court in response “to a series of incidents in which individuals in four counties in Illinois have been charged with violating Illinois’ eavesdropping law for making audio recordings of public conversations with police.” If convicted of violating the eavesdropping law, the defendants in those cases could be sentenced to 15 years in prison.

In the lawsuit, the ACLU argued that preventing individuals and watchdog organizations from making “audio (and video) recordings of police who are performing their public duties in a public place and speaking in a voice loud enough to be heard by the unassisted human ear,” is a violation of the First Amendment.

“The case is of particular import because the law is being used to arrest and prosecute those who want to monitor police activity in order to deter or detect any police misconduct,” the lawsuit said. In addition, the ACLU said Alvarez was named as the defendant because she “is prosecuting an individual for violating the eavesdropping statute by recording police officers.”

In July, U.S. District Judge Sharon Coleman granted an injunction against enforcement of the Illinois Eavesdropping Act in regards to recording police performing their duties in public. In that ruling, Coleman said the ACLU has demonstrated “a reasonable likelihood of success on the merits for its First Amendment claim,” and the injunction will not harm the public interest “by preliminarily enjoining the enforcement of a statute that is probably unconstitutional.”

Following Coleman’s ruling, Alvarez filed a motion to “stay proceedings” on the case while the State’s Attorney of Cook County filed a petition “for writ of certiorari” before the U.S. Supreme Court; that writ is what was denied.

The Cook County (Ill.) State’s Attorney office did not return calls seeking comment.