Wednesday, November 28, 2012

A quiet win

Sometimes in the law, the real win comes in not having your case heard. When you win at the Court of Appeals, you really don't want the Supreme Court to grant review of the case. Even if you're pretty sure the Supremes will see it the same way and you'll still win, it just delays the relief to the client and means the police or prosecutors might keep doing the wrong thing for a while longer, which means there might be a defendant somewhere who will fall through the cracks and have the wrong thing stick to his case.

So it's really not a bad thing that the United States Supreme Court this week declined to review a case out of Illinois that challenged that state's broadly-written eavesdropping law. The law makes it a felony, punishable by up to 15 years, to record someone without that person's permission. Now, lots of states have laws against recording a person without that person's permission. But most states also have an exception for recording a person who does not have a reasonable expectation of privacy. Which is why it's perfectly legal to photograph or video record random people on the street. The purpose of the eavesdropping laws is to protect people who think they're engaging in private behavior, like personal conversations or, you know, bedroom stuff.

The Illinois law, though, does not have any such exception. Which has made it the perfect state to fall at the center of the fight over citizens recording the actions of cops. In this era of smart phones, it's become common for bystanders to arrests to break out that phone and record the incident. Sadly, it has also become somewhat common for cops to challenge those bystanders, harass them, arrest them, delete the footage, etc.  In most states, the camera operator has a pretty solid defense by arguing that police officers acting in their official capacity don't have a reasonable expectation of privacy. How can they? They have to fill out reports of everything. They have to expect to testify about arrests, the statements made and the actions taken during them.

In the Illinois case SCOTUS declined to review, the ACLU filed suit, claiming a First Amendment right to record police, so fortunately no bad conviction is involved. The ACLU wanted to launch a government accountability program and wanted assurance that its employees wouldn't be arrested. The 7th Circuit Court of Appeals agreed with the ACLU that we the people get to gather information on our government officials. And now SCOTUS has let that ruling stand by declining to take the case.

For the ACLU and residents of Illinois who were facing prosecution under this application of the eavesdropping law, this cert denial is a good thing. And it means that the only federal appellate case law out there affirms citizens' rights to record the police. But this probably won't be the last we hear of this issue. In that sense, it would have been nice for SCOTUS to take cert and provide a little finality. But then again, they ruled flag burning couldn't be outlawed over 20 years ago and we still hear about occasional flag desecration prosecutions, so maybe we'll still hear about cops arresting citizens for recording arrests for years to come. Let's just hope not in Illinois.

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