Serious jail time for recording cops

[March 15, 2011]  DANVILLE -- If you're thinking about recording police or other law authorities working in Illinois, you better think twice. It could cost you 15 years in prison.

Take the case of Sekiera Fitzpatrick. When she was taken into custody for hiding a fugitive in her Danville home, she found out the hard way that taking a video or making a sound recording of an on-duty law enforcement official without permission is illegal.

Fitzpatrick was arrested in July after Anthony Edwards, who was wanted on a warrant, used her apartment to hide from the police. Police said they responded to the apartment after receiving a tip.

Before she was put in handcuffs, officers allowed Fitzpatrick to call her mother. But instead of making the phone call, she used her phone to record her arrest.

Officer Eric Olson noticed Fitzpatrick was filming him and others, and he told her that she didn't have his permission to film or record him or other officers on audio.

"I advised her she was going to be charged with eavesdropping for that," Olson said in court, according to records.

That charge tripled the amount of prison time Fitzpatrick is facing, because in Illinois recording an on-duty police officer without their permission carries with it the possibility of serving 15 years behind bars.

Illinois' penalty for knowingly recording audio of anyone without their consent is a Class 4 felony. It is punishable by up to three years in prison. When someone like Fitzpatrick decides to record law enforcement performing their job, the charge gets ratcheted up to a Class 1 felony and carries with it a maximum sentence of 15 years in prison. A Class 1 felony is the same class as someone who is charged for having more than 11 pounds of marijuana.

"Illinois is virtually unique in making it a crime to record on-duty police officers," said Adam Schwartz, the senior lawyer for Illinois' American Civil Liberties Union. "That's because of ... what I would say is a defect in our eavesdropping act that other states and federal eavesdropping acts don't have, which is we've extended the ban on eavesdropping from just private conversations to all conversations, whether or not they are private."

Only two other states -- Massachusetts and Oregon -- have similar eavesdropping laws.

Illinois' statute referring to recording officials was enacted in 1994. An attempt to roll back the law 11 years later failed in the General Assembly.

The ACLU is trying to get the law declared unconstitutional in federal court, claiming it violates the U.S. Constitution's First Amendment. A favorable ruling by a federal judge would automatically trump any state law.

The ACLU claims the ability to monitor and record on-duty police is tantamount to preventing police brutality and protecting civil rights.

"For a small number of police officers, who are bending the rules and violating the constitutional rights of members of the public and then lying about it, the possibility that a civilian is going to make an audio/video recording of them, hopefully, will cause them to stop breaking the rules and be more honest," Schwartz said.

So far the ACLU hasn't been successful in its attempts to get the law declared unconstitutional.

While the ACLU opposes the law mainly from a civil liberties standpoint, some defense attorneys in the state look at it with a more practical view. They say the charge is excessive and can be used by prosecutors to stack charges on a suspect.

"What they'll do is they'll add as many possible criminal charges as they can for the purpose of leverage," defense attorney Lewis Gainor said. "By adding a more serious charge to someone who is really not guilty of anything serious, you can leverage that in negotiations. You can basically coerce that defendant to pleading guilty to something because they always have the fear of the great offense."

Gainor was involved in such a case in 2007. The Cook County lawyer said his client in that case, Robin McDaniel, was going through a tough divorce, which included accusations of child abuse.

Every time an allegation was made, the police would show up at McDaniel's house. He would be detained, interrogated and then let go because there wasn't any evidence to back up the claims, according to Gainor.

"Eventually, he realized he'd been put through this hell; he decided he was going to try to protect himself, so he decided to record his interactions with the police," he said.

The police found out about McDaniel's digital recorder during another encounter and charged him with a felony and a misdemeanor, both relating to eavesdropping. To avoid the possibility of jail time, McDaniel pleaded guilty to the misdemeanor in exchange for the state dropping the felony charge, according to Gainor.

Is McDaniel's case the norm? Is the state's eavesdropping act a carrot on a stick that state's attorneys use to convince people like McDaniel to accept a lesser charge?

Matt Jones, assistant director for administration at the Illinois office of the state's attorney appellate prosecutor, doesn't think so.

"The fact that it's on the books means that it's a tool in those cases where the facts warrant it," Jones said. "That's like asking, is a murder statute a useful tool for pursuing justice against those that commit homicide. The answer is yes, when the facts warrant it."

Jones said the charge is applied on a case-by-case basis and isn't automatically added to anyone who uses a cell phone to record police officers.

"There are circumstances in each case where you have to look at everything. Every time a person dies doesn't mean that it's first-degree murder."

To hear Michael Allison talk about his experience with Illinois' eavesdropping act, though, it would seem he was talking about a murder charge.

Allison said he was being harassed by an officer of the Robinson Police Department on what Allison said was a "bogus" city ordinance violation while working on vehicles at his mother's house in 2007.

Then, over the course of two months, Allison recorded his interactions with the police four times. When he was slated to go to court for the ordinance violation, he asked for a court reporter. Allison's request was denied, so he decided to take his Olympus DS-30 recorder into the court. He was confronted by Crawford County Circuit Court Judge Kimbara Harrel. The judge asked Allison if he was recording, and when Allison answered affirmatively, the judge told him he was going to be charged with eavesdropping.

Each of those interactions, including the fifth and final one involving Harrel, turned into a Class 1 felony charge. Allison said he will fight his case in a jury trial, even though the Bridgeport resident is facing 75 years in jail.

"In every instance I was just documenting my own words, and any instance of any kinds of threats, intimidation or harassment or any criminal activity on their part," Allison said. "If you plea down to anything, you're pleading guilty to something, and whatever that might be, I'm telling you I didn't do anything wrong."

Fitzpatrick's case, too, has yet to make a plea deal. At a hearing earlier this month -- on the day that happened to be Fitzpatrick's 26th birthday -- her case was set for a hearing on May 27. Her public defender declined to comment.

[Illinois Statehouse News; By ANDREW THOMASON]