SCOTUS Lets Ruling on Taping Police Stand

The Supreme Court denied cert in Anita Alvarez v. ACLU of Illinois, an appeal from the state of Illinois trying to overturn a 7th Circuit Court of Appeals ruling that upheld the right to record police officers on duty. But that’s not entirely the end of the case:

In 2010, the American Civil Liberties Union of Illinois challenged the legislation when applied to recording police officers conducting official duties, saying the First Amendment protects individuals’ right to openly record the officers.

In the 7th Circuit Court of Appeals decision in May, Judges Diane Sykes and David Hamilton stopped short of overturning the law entirely, but prohibited enforcing the law while it was sent it back to lower courts. Sykes wrote: “The Illinois eavesdropping statute restricts far more speech than necessary to protect legitimate privacy interests; as applied to the facts alleged here, it likely violates the First Amendment’s free speech and free-press guarantees.” Judge Richard Posner dissented. (While the appeal was pending, several news organizations filed a brief urging the 7th Circuit panel to block enforcement of the law.)…

The ACLU praised the ruling, saying it would focus its efforts now on the district court.

“We now hope to obtain a permanent injunction in this case, so that the ACLU’s program of monitoring police activity in public can move forward in the future without any threat of prosecution,” the group said in a statement. “The ACLU of Illinois continues to believe that in order to make the rights of free expression and petition effective, individuals and organizations must be able to freely gather and record information about the conduct of government and their agents – especially the police.”

I hope so too. Not only should it be legal to record the police, every single officer should have video and audio recording devices on their uniform and every single interaction with the public should be recorded. That’s not only good for civil liberties and justice, it’s good for those cops who are falsely accused of misconduct. Every good cop should be in favor of it.

Comments

  1. Stevarious, Public Health Problem says

    Every good cop should be in favor of it.

    And yet, I can count on my thumbs the number of cops that I’ve seen that are for it.

    What does that say about the modern police force?

  2. DaveL says

    Apart from the First Amendment argument, I think this issue involves a penumbra of the 6th Amendment guarantee to power of subpeona. How can it make sense to guarantee defendants the right to compel the appearance of witnesses in their favor, yet deny them the right to create an impartial record of the events in question? The right to cross-examination, I think, also hints towards the defendant’s right to present a contrary version of events to what the police portray, and the prohibition on secret trials ought firmly to place the police’s public-record activities firmly outside any shroud of privacy. From all this, I think it’s clear that the lack of explicit protections for such recording in the 6th amendment is merely an artifact of the lack of the relevant technology at the time.

  3. frog says

    “Every good cop should be in favor of it.”

    –>On the one hand, I completely agree with you.

    On the other hand, it sounds very much like, “What, you don’t like a panopticon? But you’re a law-abiding citizen, aren’t you? What do you have to fear?”

    In thinking over this, I’ve come up with two distinctions:

    1. A police officer should be recordable while on duty. And this is justifiable because:

    2. The role of a police officer is unique, different from any other job. They have greater opportunity to violate the precepts of their profession, strictly because Quis custodiet ipsos custodes?

    I can understand why even good cops wouldn’t be in favor of it. But I don’t care. A police officer has a different level of interaction with civilians than civilians have with each other. That needs to be regulated.

  4. Eric Ressner says

    I agree with frog @6: the “while on duty” proviso. But I don’t think the specific justification regarding police is necessary or desirable. Police do their jobs largely in public, so have no presumption of privacy. (That’s the same rationale police use to collect data and deploy intrusive technologies like drug-sniffing dogs and infrared detectors against citizens.) Though I can’t imagine why anyone would want to, it should also be legal to record tree-trimmers, meter-readers, snow-plow operators, etc., at work.

  5. John Horstman says

    I agree with Ed, DaveL, and frog. The police occupy a unique place in our society as they are the only people legally vested with our collective capacity for violence, and as such should always be subject to a higher degree of scrutiny than the average citizen while acting in their capacity as police officers.

  6. bobaho says

    Well, I suppose soldiers are too, though their focus is primarily on foreign threats.

    Military are covered under the UCMJ and as such are subject to heightened scrutiny and punishment. Rape is a capital crime in the UCMJ, punishable by hanging. Not many other criminal codes are as unforgiving.

  7. rebeccamad gastronomer says

    @bobaho

    Since so incredibly few rapes are prosecuted under the UCMJ, and indeed rape victims in the US military are far, far more likely to be punished than their rapists are to receive so much as a reprimand, I would think that the possible punishment is nearly irrelevant. When was the last time a soldier was actually hanged for rape?

  8. wscott says

    And yet, I can count on my thumbs the number of cops that I’ve seen that are for it. What does that say about the modern police force?

    It says that they’re human beings. I suspect very few people in any profession would be enthusiastic about the idea of having everything they do and say recorded and analyzed by not only their boss, but private citizens, attorneys and the media. While I think society’s needs outweighs the police’s desire for privacy in this case – I think frog @6 laid out the case very nicely – I can completely understand why a lot of good, honest cops would hate the idea.

    I don’t think the specific justification regarding police is necessary or desirable. Police do their jobs largely in public, so have no presumption of privacy.

    That’s true for the public recording the police. But frog was talking about the idea that police should be required to record themselves, which does require more justification.

  9. Ichthyic says

    Not many other criminal codes are as unforgiving.

    now, if only they paired that with consistent and independent investigation of allegations of wrongdoing…

  10. Ichthyic says

    and as such are subject to heightened scrutiny and punishment.

    no.

    what they are subject to is heightened punishment, ON PAPER.

    there is abysmally poor scrutiny and even worse enforcement once something is noted.

  11. freemage says

    My personal feeling is that any time a public employee is engaged in their profession, it should be legal:

    1: For them to record the conversations and activity covertly;

    2: For whoever they are interacting with to record the activity covertly;

    3: For any other citizen to record the activity openly.

    So if Citizen Clive is talking to Alderman Andy about the zoning deferment Clive wants for his Butcher’s Block line of slaughterhouse/restaurants, either Clive or Andy can have their cell-phone in their breast pocket set to “Record”. Furthermore, Reporter Ruth can walk up with a camera and record their encounter as well.

    Police officers would simply be part of the larger pool of public servants for this purpose–which means that yes, you would need to assume that the cop has a camera running somewhere, even if you can’t see it, during a traffic-stop.

  12. skinnercitycyclist says

    the notion that police officers as such have any privacy rights while on duty should be ridiculous.

    Except when they go to the toilet. I do NOT want to see that ass-crack….

  13. 'smee says

    We record bank tellers doing their job; UPS operators are tracked by GPS to ensure deliveries are made; even checkouts at supermarkets are recorded. This helps to reduce fraud, enhance accuracy (video can always be reviewed), and improves customer service (how else are we going to know that your package is estimated to arrive this morning?)

    Even the police themselves record citizens during traffic stops. So why only a single viewpoint?

    Why do police have to hide?

    Will accurate documentary evidence from multiple perspectives make it harder to convict a criminal? (if so, maybe all the CCTV companies should be charged with deceptive trading)

    Or are they simply scared that they will then be visible in all of their interactions? This last is an argument that would only be valid to a bad cop, and bad cops should not determine policy.

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