Is it Illegal to Film Police in Illinois?

For many years, Illinois had one of the strictest eavesdropping laws in the nation. For decades, Illinois outlawed any recording of communications made without the consent of all parties to the conversation. Illinois remains a two-party consent state, but the conditions of the prohibition of any recording made without the consent of everyone involved in the conversation have changed. Those changes have become more relevant regarding the legality of recording video or audio—or both—of police during the course of an arrest or some other exercise of their public duties.

The state has not explicitly made it legal to record police during the course of their duties—a point of contention for some civil rights groups in Illinois—but the language in the newer eavesdropping statute provides an exemption that applies to such situations, making such recording legal.

The Contentious Issue of Recording Police in Illinois

In March 2014, the Illinois Supreme Court threw out the state’s eavesdropping law as too strict, finding that the law criminalized significant amounts of innocent behavior. Requiring the consent of all parties involved in a conversation criminalized such things as recording fans cheering at a sporting event, public political debates between candidates, and other conversations “that cannot be deemed private,” the Court ruled.

Only nine months later, the Illinois legislature in December 2014 passed a new eavesdropping law that replaced the law rejected by the state Supreme Court. The new statute still required what is known as two-party consent, which means the consent of both (or all) parties involved in a conversation when recording that conversation. However, the new law provided an exemption that excludes conversations that cannot be deemed private. To be covered by the consent requirements, parties to a conversation must have a reasonable expectation of privacy.

Some civil rights groups contended that still prohibited recording police during an arrest or another public exercise of their duties because the expression “reasonable expectation of privacy” is not defined in the statute. The contention was that the lack of definition left room for selective application of the law. Courts have not accepted that interpretation, however, and generally accept that a police officer making an arrest or otherwise interacting in public with a suspect has no reasonable expectation of privacy, as that conversation takes place during the public exercise of the officer’s duties.

Recording Police Is Broadly Held as a Constitutional Right

In recent years, a number of federal appellate courts across the country have taken on the issue of whether recording the police in the course of their official duties is legal, or perhaps even protected under the U.S. Constitution. All but one of the circuits that have ruled on the issue, including the Seventh Circuit, which includes Illinois, have found that recording the police while they are performing their duties in public is protected by the right to freedom of expression under the First Amendment to the U.S. Constitution. The courts generally found that outlawing recording public officials during the course of their public duties, including police, necessarily interferes with reporting accurately on the activities of public officials, a core value protected by the First Amendment.

While the Illinois statute does not explicitly allow the recording of police while they are performing their public duties, including conducting an arrest, the exemption for conversations that can have no reasonable expectation of privacy clearly contemplates allowing recording of such activities. Arrests are always public acts, even if the only people present are the officer and the suspect. The suspect has the right to record his arrest, either by video, audio, or both. Efforts to halt such recording would violate the suspect’s constitutional rights. While such a violation of rights would have no bearing on the charges for which the suspect was arrested, it certainly could complicate the case.

Be Careful When Recording Police as They Execute Their Duties

Recording the police as they conduct their public duties does not mean you can do anything you want during the course of that recording. You still cannot interfere with the officers during the execution of their duties. There is no reason to hide what you are doing, and if the officers object, you are free to assert your rights to continue recording and to do so. If they attempt to interfere, you should not resist or provide any reason to arrest you. Vindicate your rights later in court.

If the officers instruct you to move back some distance, courts would likely construe failing to do so as interfering with an officer in the exercise of official duties. You cannot get between the officer and the suspect, or between an officer and evidence. If the officer asks you to identify yourself, Illinois law requires that you do so.

Even if the officers ignore your rights and arrest you for recording them or, without any basis, for interfering with their duties, that does not give you the right to resist. Once again, let them arrest you and vindicate your rights later. As soon as you have access to an attorney—another of your rights, which you should assert immediately—make sure your attorney takes steps to preserve your recording.

Finally, keep in mind that having the right to record the police as they conduct their duties does not grant you any other rights with respect to police officers, and many activities people might try to record involving police officers remain illegal and do not involve constitutional rights. For instance, recording off-duty officers having a quiet conversation is not legal under Illinois law, nor does the First Amendment protected that act. Even if the officers are on duty, if they are not performing official duties—for instance, if they are having lunch—recording them will not enjoy the same protections and could well violate the law.

If You Are Facing Charges Related to Recording Police in DuPage, Kane, or Cook County, Contact the Criminal Defense Attorneys of Kent Law, L.L.C.

If you were arrested for filming police officers while they performed official duties, including making arrests, you need to find an attorney who will help protect your rights. Call the criminal defense attorneys of Kent Law, L.L.C. We have the experience and background as prosecutors that gives us inside knowledge of the system, and this helps us to put forward the most effective defense in each case. For a consultation in DuPage, Kane, or Cook County, contact us 24 hours a day at (630) 474-8000.