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Chicago State's Attorney Lets Bad Cops Slide, Prosecutes Citizens Who Record Them

Michael Allison faces up to 75 years in prison for Illinois recording police officers.

First Posted: 06/ 8/11 01:09 PM ET Updated: 06/10/11 01:13 AM ET

When Chicago police answered a domestic disturbance call at the home of Tiawanda Moore and her boyfriend in July 2010, the officers separated the couple to question them individually. Moore was interviewed privately in her bedroom. According to Moore, the officer who questioned her then came on to her, groped her breast and slipped her his home phone number.

Robert Johnson, Moore's attorney, says that when Moore and her boyfriend attempted to report the incident to internal affairs officials at the Chicago Police Department, the couple wasn't greeted warmly. "They discouraged her from filing a report," Johnson says. "They gave her the runaround, scared her, and tried to intimidate her from reporting this officer -- from making sure he couldn't go on to do this to other women."

Ten months later, Chicago PD is still investigating the incident. Moore, on the other hand, was arrested the very same afternoon.

Her crime? At some point in her conversations with internal affairs investigators, Moore grew frustrated with their attempts to intimidate her. So she began to surreptitiously record the interactions on her Blackberry. In Illinois, it is illegal to record people without their consent, even (and as it turns out, especially) on-duty police officers.

"This is someone who is already scared from being harassed by an officer in uniform," said Johnson. "If the police won't even take her complaint, how else is a victim of police abuse supposed to protect herself?"

Moore's case has inspired outrage from anti-domestic abuse groups. "We just had two Chicago police officers indicted for sexual assault, there have been several other cases of misconduct against women," says Melissa Spatz of the Chicago Task Force on Violence Against Girls & Young Women. "And now you have Moore, who was trying to report this guy, and she gets arrested. The message here is that victims of unwanted sexual advances by police officers have no recourse -- that the police can act with impunity."

If the Chicago cops recently indicted for sexual assault are convicted, they'll face four to 15 years in prison. That's the same sentence Tiawanda Moore is facing for trying to document her frustrations while reporting her own alleged sexual assault: Recording an on-duty police officer in Illinois is a Class 1 felony, the same class of crimes as rape.

ILLINOIS' PROBLEM WITH PRIVACY

Last summer the U.S. media took note of several stories about citizens arrested for photographing or recording on-duty police officers. National coverage of these incidents has since died down, but the arrests haven't stopped.

Some of these arrests have come under decades-old wiretapping laws that never anticipated the use of cellphones equipped with cameras and audio recording applications. Others have come under vaguer catch-all charges like refusing to obey a lawful order, disorderly conduct, or interfering with a police officer. In both cases, the charges rarely stick, and in most cases, it's the cops themselves who are violating the law.

The media have largely done a poor job reporting on what the law actually is in these states. Technically, so long as a person isn't physically interfering with an on-duty police officer, it's legal to record the officer in every state but Massachusetts and Illinois. Arrests still happen in other states, but there's little legal justification for them, and the charges are usually dropped, or never filed at all.

But Illinois is the one state where the law clearly forbids citizens from recording of on-duty cops. And so it seems likely that if the Supreme Court or a federal appeals court does eventually decide if pointing a camera at a cop is protected by the First Amendment (so far, they haven't), the case will come from Illinois. (Courts in Massachusetts have generally held that secretly recording police is illegal, but recording them openly isn't.)

Illinois' wiretapping law wasn't always this bad. Originally, the statute included a provision found in most other state wiretapping laws stating that, in order for someone to be prosecuted for recording a conversation, the offended party must have had a reasonable expectation that the conversation was private.

So far, every court in the country to have considered the issue has found that on-duty cops have no such expectation of privacy. This makes sense. Police not only work for the public, they're also entrusted with enormous power: They can arrest citizens and detain them or kill them.

In 1986, the Illinois Supreme Court threw out the eavesdropping conviction of a man who had recorded two police officers from the back of a patrol car for just that reason. The court ruled that the officers had no expectation of privacy.

So in 1994 the Illinois state legislature removed the wiretap law's privacy provision. It was an explicit effort to override the decision eight years earlier. Technically the amended law covers everyone -- anyone whose voice is recorded without their permission, for any reason, could file a complaint and ask to press charges -- but it's used almost exclusively to protect police.

So far, HuffPost has yet to find anyone who has actually been convicted under the law. Instead, police arrest and charge someone they catch recording them, but the charges are dropped or reduced to misdemeanors before trial.

In 2004, for example, documentary filmmaker Patrick Johnson was arrested under the law while recording footage for a movie about relations between blacks and police in the Illinois cities of Champaign and Urbana. Johnson fought the charges with help from the state affiliate of the American Civil Liberties Union (ACLU). But after the district attorney who was prosecuting him lost in the next election, the new prosecutor dismissed the charges.

THE STATE v. CITIZENS

An actual conviction under the eavesdropping law would likely bring a constitutional challenge, which could well lead to the law being overturned in court. It could also lead to the U.S. Supreme Court or the U.S. Court of Appeals for the 7th Circuit more broadly affirming a First Amendment right to record police, which of course would have ramifications outside of Illinois.

As long as no one is convicted, the law is unlikely to be challenged. That means police can continue to rely on it to harass and intimidate citizens who try to hold them accountable, or who want an independent record of what they believe to be police harassment.

Moore's case may prove to be just the opportunity free speech advocates are looking for. But her case was continued again this week, despite the fact that she's been asking for months to go to trial.

The person pursuing the charges against Moore is Anita Alvarez, the state's attorney for Cook County, home to Chicago. (Alvarez's office declined to comment for this report.)

It's difficult to think of another big city in America where citizens would be more justified in wanting an objective account of an interaction with a police officer. At about the time Moore's story hit the pages of The New York Times earlier this year, for example, former Chicago Police Commander Jon Burge was sentenced to four-and-a-half years in prison for lying under oath about his role in the routine torture of hundreds of suspects in police interrogation rooms for more than a decade. Nearly everyone else involved in the tortures, including the police commanders and prosecutors who helped cover them up, couldn't be prosecuted due to statutes of limitations.

Over the last few years, surveillance video has also exposed a number of police abuses in Chicago, including one episode in which an off-duty cop savagely beat a female bartender who had refused to continue serving him. He was sentenced to probation.

In 2008, the city made national headlines with another major scandal in which officers in the department's Special Operations Unit -- alleged to be made up of the most elite and trusted cops in Chicago -- were convicted of a variety of crimes, including physical abuse and intimidation, home robberies, theft and planning a murder.

In a study published the same year, University of Chicago Law Professor Craig B. Futterman found 10,000 complaints filed against Chicago police officers between 2002 and 2004, more than any city in the country. When adjusted for population, that's still about 40 percent above the national average. Even more troubling, of those 10,000 complaints, just 19 resulted in any significant disciplinary action. In 85 percent of complaints, the police department cleared the accused officer without even bothering to interview him.

Yet Alvarez feels it necessary to devote time and resources to prosecuting Chicagoans who, given the figures and anecdotes above, feel compelled to hit the record button when confronted by a city cop.

In addition to Moore's, there are two other cases that may present an opportunity to challenge the Illinois law. One is that of Michael Allison.

This Robinson, Ill., man is facing four counts of violating the eavesdropping law for the recordings he made of police officers and a judge. Allison was suing the city to challenge a local zoning ordinance that prevented him from enjoying his hobby fixing up old cars: The municipal government was seizing his cars from his property and forcing him to pay to have them returned. Allison believed the local police were harassing him in retaliation for his lawsuit, so he began to record his conversations with them.

When Allison was eventually charged with violating the zoning ordinance, he asked for a court reporter to ensure there would be a record of his trial. He was told that misdemeanor charges didn't entitle him to a court reporter. So Allison told court officials he'd be recording his trial with a digital recorder.

When Allison walked into the courtroom the day of his trial, the judge had him arrested for allegedly violating her right to privacy. Police then confiscated Allison's digital recorder, where they also found the recordings he'd made of his conversations with cops.

Allison has no prior criminal record. If convicted, he faces up to 75 years in prison.

In a hearing last week, Allison argued that the Illinois eavesdropping case was a violation of the First Amendment. The judge ordered a continuance so that the office of Illinois Attorney General Lisa Madigan can prepare a response. (Madigan's office did not respond to HuffPost's request for comment.)

The other case to challenge the wiretap law is that of Christopher Drew, an artist who was arrested in December 2009 for selling art without a permit on the streets of Chicago. Drew recorded his arrest, and now faces four to 15 years for documenting the incident.

In a hearing last December, Cook County Assistant State Attorney Jeff Allen invoked homeland security, arguing that Drew's recording could have picked up police discussing anti-terrorism tactics. Drew's case was suspended after he was diagnosed with lung cancer earlier this year.

Both Allison and Drew say they won't accept the sort of plea bargain Illinois prosecutors have offered in the past. Both say they're willing to risk prison time to get the law overturned.

THE IMPORTANCE OF TRANSPARENCY

The ACLU of Illinois is also challenging the law. But in January, U.S. District Court Judge Suzanne B. Conlon ruled against the organization. Conlon wrote that the First Amendment does not protect citizens who record the police. The ACLU has appealed and expects to participate in oral arguments before the U.S. Court of Appeals for the 7th Circuit sometime in the fall.

In a report released just this month, the United Nations noted the importance of Internet access and personal technology in facilitating the recent Arab Spring uprisings in the Middle East. Technology has given citizens all over the world a remarkable and historic tool to bring transparency to the most brutal and oppressive governments.

But even as Americans have criticized those countries for attempting to prevent protesters from uploading photo, video, blog posts and Twitter accounts of government crackdowns, government officials in the U.S. are still arresting, threatening, intimidating and harassing Americans who attempt to document police abuse in America. (See this example over Memorial Day in Miami.)

No, America isn't Egypt or Yemen or Iran. But while the scale of the suppression is different, the premise is the same: When a citizen and a police officer have a confrontation, the police officer's narrative has always been given deference by prosecutors, judges and juries -- in the same way governments in more oppressive parts of the world have the power to project their own version of events as truth.

Citizens in America and across the globe now have the ability to preserve and present a more objective narrative. This is a positive thing -- for democracy, for good government and for a fairer criminal justice system. U.S. courts and legislatures need to make it abundantly, unambiguously clear that not only do citizens have the right to record on-duty police officers, but that cops and prosecutors who violate that right will be held accountable.