Man Who's Spent Three Years Challenging IL's Eavesdropping Act Suddenly Finds He Has No Case

Legal Issues

from the this-is-how-it-ends,-not-with-a-bang,-but-with-a-moot dept

The oft-abused Illinois Eavesdropping Act that was recently found to be unconstitutional by the courts is at the center of one man’s lawsuit against his local police force.

According to the filing, the plaintiff (Louis Frobe) suffers from insomnia, which has led to him spending a great deal of time outside of his house at night, either going to late movie showings or engaging in nocturnal animal-watching. As is to be expected, Frobe also spends a great deal of time interacting with local law enforcement (an estimated 40 times over a two-year period), who are prone to view people wandering around at night with suspicion.

Because these interactions rarely went well, Frobe decided to start recording his run-ins with the police. That didn’t sit well with one officer, who arrested him under the Eavesdropping Act in 2010. Charges were never filed, but Frobe was concerned enough about future arrests that he sought a permanent injunction against the police to prevent them from arresting him under this act.

Thanks to the ACLU’s victory in court, the state’s Eavesdropping Act can no longer be applied in this fashion (i.e., recording police officers while on duty and in public places). The state Attorney General was ordered to cease prosecution of those who “violated” the unconstitutional law. According to the presiding judge, this rendered Frobe’s complaint moot.

The attorney general has since publicly stated that it “will not prosecute or assist in prosecuting Frobe under the [IEA], because any prosecution of Frobe under the facts in his complaint would run afoul of the First Amendment.”

“In the instant case, defendants have given public notice of the policy change, they have explained their reasoning, and they have abandoned the defense of the IEA as constitutional. Thus, it is not ‘difficult to conclude that there is no reasonable expectation that plaintiff would be prosecuted under the statute in the future,'” the judge said.

While Frobe unquestionably had standing to challenge the Act when he filed his lawsuit, subsequent federal court rulings in other cases have succeeded in their challenges to the Act, and public officials have conceded the issue.

“Since the time of those decisions and public declarations, there have been no new prosecutions. In short, plaintiff Frobe no longer has a reasonable expectation that the Act will be enforced against him. His claim for injunctive relief is moot,” Pallmeyer concluded.

Frobe stated in his suit that this declaration not to prosecute doesn’t necessarily mean local police won’t attempt to file charges against him for recording, but Pallmeyer pointed out (with several citations) that the state AG needs to be taken at his word until proven otherwise. This decision doesn’t look like it will necessarily curb the number of run-ins Frobe will have with the police, but at least it means he’s free to use his camera to keep them honest.

With the State AG declaring there will be no prosecution under this act, that only leaves the Cook County’s state’s attorney Robert Bonjean III who, along with Police Chief Tony Grootens, declared back in August that they would be selectively prosecuting cases of those charged under the unconstitutional act. This drew heat from the Illinois ACLU, which sent a letter demanding to know what exactly Bonjean meant by refusing to issue a “blanket statement” and vowing to prosecute on a “case-by-case basis.”

At the point we covered it here, there had been no response. But it looks at though Bonjean has decided to join the rest of the state and follow the court’s instruction.

State’s Attorney Robert Bonjean III will not be prosecuting anyone in Morgan County for audio-recording police officers performing their public duties in public places.

Bonjean has conveyed that assurance to the American Civil Liberties Union in response to a letter the group sent seeking clarification about whether anyone would face charges under a 1960s eavesdropping law…

“Consistent with the Alvarez decision in the northern district of Illinois, which would apply if (the ACLU) applied for a preliminary injunction in the central district, the Morgan County State’s Attorney’s Office will not prosecute those individuals who audio-record on-duty police officers, which was the finding of the ACLU v. Alvarez case,” Bonjean said.

Chief Grootens also made a similar statement.

“Our department will not arrest civilians if they audio-record any on-duty police officers in a public place,” Grootens said in a one-paragraph letter to Schwartz, dated Aug. 28.

So, now it’s unanimous (finally). While the police may be highly uncomfortable with being filmed while on duty, they’ll just have to tough it out. The law’s no longer theirs to abuse.

Filed Under: eavesdropping, filming police, illinois, louis frobe