Illinois Passes Law Making it a Felony to Video Police; How to Stop Police Abuse; More on CIA Torture

How to Stop Police Abuse

There's one way and one way only to stop police abuse: Criminally prosecute it, then allow civil penalties.

In a podcast today with Chris Martenson, Chris suggested civil penalties should come straight out of the police retirement fund, not taxpayer pockets.

But as with CIA torture, government does not really want to stop abuse, they want to stop reporting the abuse.

Earlier this year, Illinois passed a law making videotaping of police illegal. However, the Illinois Supreme Curt struck down the law as a violation of free speech.

So what did the Illinois legislature do? They wrote an even worse law.

Illinois Passes Law Making it a Felony to Video Police

Via email from Jacob Huebert, senior attorney at the Liberty Justice Center, the Illinois Policy Institute's free-market public-interest litigation center.

Earlier this year, the Illinois Supreme Court struck down a state eavesdropping law that made it a crime for citizens to record conversations with police or anyone else without the other person’s permission. The court held that the old law “criminalize[d] a wide range of innocent conduct” and violated free-speech rights. In particular, the court noted the state could not criminalize recording activities where there is no reasonable expectation of privacy, including citizens’ “public” encounters with police.

Now the old law is back, with just a few changes, in a new bill sent to the governor’s desk by the Illinois Senate on Dec. 4. The bill not only passed, but did so overwhelmingly with votes of 106-7 in the House on and 46-4-1 in the Senate.

The new version is nearly as bad as the old one.

Under the new bill, a citizen could rarely be sure whether recording any given conversation without permission is legal. The bill would make it a felony to surreptitiously record any “private conversation,” which it defines as any “oral communication between 2 or more persons,” where at least one person involved had a “reasonable expectation” of privacy.

When does the person you’re talking to have a reasonable expectation of privacy? The bill doesn’t say. And that’s not something an ordinary person can be expected to figure out.

A law must be clear enough for citizens to know in advance whether a particular action is a crime. This bill doesn’t meet that standard, which should be reason enough for a court to strike it down if it becomes law.

But lack of clarity isn’t the only problem with this bill.



Although it appears to be designed to accommodate the Illinois Supreme Court’s ruling striking down the old law, the bill actually is designed to continue to prevent people from recording interactions with police.

The bill says it would only be a crime to record someone where there is a reasonable expectation of privacy, which should mean that recording public encounters with police would not be a crime, and the old law’s fatal constitutional flaw would no longer exist.

But the bill doesn’t really fix the problem. Again, citizens can’t be expected to know for sure precisely which situations give rise to an “expectation of privacy” and which don’t. The Illinois Supreme Court said that police don’t have an expectation of privacy in “public” encounters with citizens, but it did not explain what counts as a “public” encounter. So if this bill becomes law, people who want to be sure to avoid jail time will refrain from recording police at all, and the law will therefore still effectively prevent people from recording police.

The bill would also discourage people from recording conversations with police by making unlawfully recording a conversation with police – or an attorney general, assistant attorney general, state’s attorney, assistant state’s attorney or judge – a class 3 felony, which carries a sentence of two to four years in prison. Meanwhile, the bill makes illegal recording of a private citizen a class 4 felony, which carries a lower sentencing range of one to three years in prison.

There’s only one apparent reason for imposing a higher penalty on people who record police in particular: to make people especially afraid to record police. That is not a legitimate purpose. And recent history suggests it’s important that people not be afraid to record police wherever they perform their duties so that officers will be more likely to respect citizens’ rights, and officers who do respect citizens’ rights will be able to prove it.

The bill might also provide an excuse to scuttle body cameras for police. Police may argue that using body cameras to record encounters with citizens outside of “public” places would violate the law, as citizens have not consented to being recorded.

We should mention one more thing about this bill. It was introduced on Tuesday, Dec. 2, as an amendment to an existing bill on a completely different subject. The amendment removed all of the bill’s previous content and replaced it with the new ban on recording. The House passed it the following day, and the Senate passed it the day after that. So the people who would have cared most about this bill probably didn’t notice it in time to object. They might have had their attention focused on other issues that were in the news, such as the recorded police killing of Eric Garner.

Even if this bill were constitutional, it would still be unnecessary and a terrible idea. Most other states allow a person to record a conversation with only one party’s consent and don’t try to scare people out of recording police by threatening them with felony charges.

Despite its bipartisan support, Gov. Pat Quinn should do one more thing to bolster his legacy before he leaves office and veto this bill.

Jacob Huebert
Senior Attorney, Liberty Justice Center

How to Stop Torture

The way to stop CIA torture is the same as the way to stop police abuse: criminal prosecution.

Obama's fluff statement "we won't let this happen again" will only be believable if it comes with criminal prosecution from the top down, preferably at an international war crimes tribunal.

UN Calls for Prosecution

Yesterday, Ben Emmerson, United Nations Special Rapporteur on counter terrorism and human rights, called for prosecution of CIA officers and other US Government officials.

International law prohibits the granting of immunities to public officials who have engaged in acts of torture. This applies not only to the actual perpetrators but also to those senior officials within the US Government who devised, planned and authorised these crimes.

As a matter of international law, the US is legally obliged to bring those responsible to justice. The UN Convention Against Torture and the UN Convention on Enforced Disappearances require States to prosecute acts of torture and enforced disappearance where there is sufficient evidence to provide a reasonable prospect of conviction. States are not free to maintain or permit impunity for these grave crimes.

It is no defence for a public official to claim that they were acting on superior orders. CIA officers who physically committed acts of torture therefore bear individual criminal responsibility for their conduct, and cannot hide behind the authorisation they were given by their superiors.

However, the heaviest penalties should be reserved for those most seriously implicated in the planning and purported authorisation of these crimes. Former Bush Administration officials who have admitted their involvement in the programme should also face criminal prosecution for their acts.

Dick Cheney and CIA Director are War Criminals

So far, the Only Person Jailed for CIA Torture is Man Who Reported It!

Cheney's defense of torture (see CIA Torture Reports: Frozen to Death; Rectal Rehydration, Broken Limbs; 54 Countries Assist US; Dick Cheney War Criminal) makes Cheney and various CIA directors my top choices for prosecution.

Torture Counterproductive

The sad thing about torture is the CIA often gets innocent victims, and torture does not work even when they get the right guy (See US Army Major Replies to My Torture Post).

Today, USAM responded ...

"I am certain torture simply creates more enemies. For example, it's well known that Ayman al-Zawahiri, the Al Qaeda #2, went into an Egyptian prison in the early 1980s a simple fundamentalist Muslim, and after years of unspeakable torture (including being tied up and raped by prison dogs), came out a blood-thristy butcher. How many more terrorists has this CIA program created? I shudder to think." 

What does the CIA and the state of Illinois want to do about abuse? Sad answer: Stop reporting abuses, and make it illegal to record them.

Addendum: A Conversation With Friends

I had the following email discussion regarding the Illinois law with two close friends. Seldom are we in complete agreement on things.

First friend: Two words. Rodney King

Second friend, a lawyer: That is one of the dumbest, anti-democratic laws I have ever heard of. In my view, it is unconstitutional. What a bunch of morons.

First Friend: God! All three of us are on the same sheet of music!

Mike "Mish" Shedlock
http://globaleconomicanalysis.blogspot.com