New developments in state's controversial eavesdropping law

April 9, 2013 3:39:25 PM PDT
There was major development Tuesday in the fight over the state's controversial eavesdropping law.

A court decision now allows citizens to record the audio of police officers on the job in public.

Citizens can legally record video of police officers doing their jobs on the public way, as long as you don't interfere, but the Illinois Eavesdropping Act does not permit you to record audio.

If you do, you're still subject to arrest and criminal charges, even though two state court judges in Illinois have declared the law unconstitutional.

It remains a law on the books without clarity though a new agreement just approved by a federal court judge will change things in Cook County.

In October of 2011, 21-year-old Kristofer DuMelle and friends were walking on this stretch of Barrington Road. A Hanover Park police officer stopped them for reasons unclear, and DuMelle started recording with his smartphone.

DuMelle: I live in Hanover Park

Police Officer Diaz: Are you recording me without my legal authorization?

DuMelle: Show me where it's illegal.

Police officer Diaz: I assure you that it will be illegal. Put your hands on? you're under arrest.

DuMelle: Why is it illegal. Can you show me the code? Can you show me the code?

DuMelle says he was wrestled to the ground and was later charged with attempted eavesdropping and resisting a police officer.

The case against DuMelle continued even after two state court judges in similar eavesdropping cases called the state law unconstitutional, and the federal appeals court called it "likely unconstitutional".

"This suit is being brought because we still don't have clarity," DuMelle's attorney Torri Hamilton said.

DuMelle sued and his case has now produced this significant court order in which Cook County State's Attorney Anita Alvarez stipulates that as written "?the Illinois Eavesdropping act violates the First amendment of the United States Constitution." And says that her office is "permanently enjoined from enforcing" the part of the law dealing with audio recording of police.

"For the people who live in this county, you can record the police, audio record the police, audio record the police when they are performing their public duties in a public place now, and with the entry of this order you can be assured you will not be prosecuted for doing so," Hamilton said.

Alvarez has previously said she was obligated to enforce the law on the books but the county's failed challenges to the law in the run up to NATO cost taxpayers over $600,000 in legal fees.

This new order applies only to Cook County.

The DuMelle lawsuit also named Illinois Attorney General Lisa Madigan.

Her office wants to be dismissed from the suit on procedural grounds, though a spokesperson says that she also believes the law on audio recording is unconstitutional.

Alvarez's office has not responded to our request for comment.

As for DuMelle, it took the better part of a year, but the attempted eavesdropping charge against him was dropped and a judge acquitted him of resisting a police officer.