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Citizens Can Record On-Duty Police Officers: 7th Cir.

By Stephanie Rabiner, Esq. on May 10, 2012 | Last updated on March 21, 2019

Illinois' eavesdropping law cannot be used to punish individuals who record police officers in public places, according to a new ruling by the 7th Circuit Court of Appeals. To do so "likely violates the First Amendment's free-speech and free-press guarantees."

This conclusion was reached in a preemptive suit brought by the ACLU, which had planned to record police officers as part of an accountability project. The project had stalled, as the group feared prosecution under the law. It's a class 1 felony to audiotape a police officer without consent.

But on Tuesday, the 7th Circuit issued a preliminary injunction prohibiting the application of the Illinois eavesdropping law to ACLU employees. The law simply restricts too much speech.

Local officials had argued that the law protects conversational privacy interests. However, the court felt that such interests are "not implicated when police officers are performing their duties in public places and engaging in public communications audible to persons who witness the events."

The court further noted that the making of an audio or audiovisual recording is covered by the First Amendment's guarantee of speech. Therefore, the "First Amendment limits the extent to which Illinois may restrict ... recording of utterances that occur in public."

The 7th Circuit is the second federal appeals court in recent months to come to this conclusion. In August, the 1st Circuit found a constitutional right to record police officers carrying out their duties in public places. Together, these two decisions signal unwillingness from the courts to enforce legislation that is similar to Illinois' eavesdropping law. This is a good thing for those who want more law enforcement accountability.

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