"Is that recording?" asked Lindenhurst police officer Ralph Goar, referring to a pocket video camera resting on the dashboard of motorist Louis Frobe.
It was the night of Aug. 15, 2010, and Goar had pulled Frobe over for allegedly driving his Honda CRV 47 mph in a 35-mph zone in the far northern suburb.
"Yes, yes," Frobe replied. He said later that he thought the speed limit was 45 and was trying to create a record to appeal the ticket. He began to explain, "I've been doing … "
"Was it recording all our conversation?" Goar interrupted.
"Guess what?" said the officer. "You're eavesdropping on our conversation. I did not give you permission to do so. Step out of the vehicle … you're under arrest for eavesdropping."
Audio recording a law enforcement officer without consent is a felony in Illinois, punishable by up to 15 years in prison.
Yet the source for this verbatim account is the recording made by the audio-video system on the police car's dashboard, a system that had been activated without Frobe's permission.
The additional irony is that if Lake County officials had elected to prosecute Frobe — they didn't; they let him spend a night in jail, then dropped the charges — they would have used their own surreptitious recording of the interaction to show Frobe admitting to making a surreptitious recording of the interaction.
Thankfully, the days when such absurdities are even possible now appear more numbered than ever. Monday, the U.S. Supreme Court announced it would not review a lower court finding from earlier this year that it's likely unconstitutional for Illinois to outlaw citizens from audiotaping police officers performing their official duties in public.
The case was brought by the American Civil Liberties Union of Illinois in advance of its planned project to document police conduct at demonstrations in the Chicago area. And our touchy men and women in blue have shown they were all too willing to thwart such monitoring of their activities with swift applications of what the appellate ruling noted was the broadest such prohibition in the nation.
"Banning photography or note-taking at a public event would raise serious First Amendment concerns," wrote U.S. Appellate Judge Diane Sykes on behalf of a 2-1 majority. "A law of that sort would obviously affect the right to publish the resulting photograph or disseminate a report derived from the notes. The same is true of a ban on audio and audiovisual recording. … Any way you look at it, the eavesdropping statute burdens speech and press rights."
The justification for such a law, outlined in the dissent by Appellate Judge Richard Posner, is that it protects the privacy rights of civilians who interact with police
"If a person has been shot or raped or mugged or badly injured in a car accident … and seeks out a police officer for aid," wrote Posner, "what sense would it make to tell him (that) the First Amendment gives passersby the right to memorialize and publish (on Facebook, on Twitter, on YouTube, on a blog) his agonized plea for help?"
More sense, I would argue, than laws everywhere that require the release of anguished 911 recordings to the media. And those are in place to serve the higher social value of police accountability and transparency.
Truth is, the ubiquity of cellphone video cameras and the growing practice of recording entire police interrogations have overall been a boon to law enforcement. It turns out the public understands good police work is not always polite, and officers understand how recording devices can protect them from false allegations of brutality.
Illinois' law is an outmoded vestige of a different, uglier era in the relationship between police and the public. Monday's announcement kicks it back down to the lower courts for further litigation, where a separate but similar civil rights suit by Louis Frobe is pending.
This is where the Illinois General Assembly should step in. Previous efforts to lift the prohibition have failed in Springfield, but the court signal could hardly be more clear that further attempts by Attorney General Lisa Madigan and Cook County State's Attorney Anita Alvarez to defend it amount to throwing good money after bad.
"The feds continue to give us a chance to fix this through legislation," said Frobe's attorney Torreya Hamilton. "Let's accept that invitation. Step up to the plate. Change the law"
Comment on this column and read the court opinion at chicagotribune.com/zorn.