By Andrew Thomason Illinois Statehouse News
Officer Eric Olson noticed Fitzpatrick was filming him and others, 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 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 ratchet 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 with for having more than 11 pounds of marijuana.
“Illinois is virtually unique in making it a crime to record on-duty police officers. 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,” said Adam Schwartz, the senior lawyer for Illinois’ American Civil Liberties Union.
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.
“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.
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 into accepting a lesser charge? Matt Jones, assistant director for administration at the Illinois office of the State’s Attorney Appellate Prosecutor, doesn’t think so.
Allison said he was being harassed by an officer of the Robinson Police Department on 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.”
