The Bar News

Cell phones and eavesdropping

There has been a surge in prosecutions against citizens for recording public officials while those officials are performing public duties. The charge is a Class 1 felony for violating the Illinois Eavesdropping statute. 

You know the drill--a motorist is pulled over for a traffic stop, records the officer, the officer  gets mad and arrests the motorist for violating the officer's right to privacy under the eavesdropping law. There is usually no underlying arrest against the motorist. Or, a homeowner records an arrest from his or her bedroom window and is arrested for a Class 1 felony for doing this.

Earlier this year a downstate auto mechanic in Robinson, Illinois was charged in a five-count information for allegedly recording these public officials while they were  conducting public business in a public place: the judge, the chief of police, a police officer, a circuit clerk, and the city attorney.

Earlier this week Judge David K. Frankland filed an opinion in this Crawford County case dismissing the charges because this part of the Eavesdropping statute violated substantive due process and the First Amendment. His opinion is a crisp, clear, and concise defense of the First Amendment and due process. Click here to read it

William A. Sunderman of Charleston, Illinois represented the defendant pro bono.

Posted on September 16, 2011 by James R. Covington
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Member Comments (4)

Three cheers for Judge Frankland. Let's hope this starts a trend to restore the Bill of Rights.

This statute has bothered me from the time it was passed. It bothered me even more when I saw prosecutions for recording police performing public duties. Kudos to the defense lawyer in this matter. Kudos to the thoughtful and articulate judge. Thank you!

How about squad car cameras? Arrested for a felony!! Thank you Judge. Government must be controlled.

On a related note, the Maryland Attorney General has opined that Maryland's eavesdropping law doesn't apply to public citizen-police encounters because these are not "private conversations" that fall within the statute's definition of an "oral communication." The question, which was submitted by a judge, came on the heels of a notorious prosecution of 25-year-old motorcyclist Anthony Graber, who used a helmet-mounted camera to record his traffic stop by a plain-clothes officer in Maryland.

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