Friday, August 8, 2014

Chicago Police Unlawful Arrest - Video Recording

These two sworn members of the Chicago Police Department might very well find themselves in more legal trouble than they bargained for. There is video of this incident, but it starts out AFTER police come on-scene, and the context of this event is hard to establish. At the beginning of the video, we see a man talking calmly as he says "I been there for all my life", followed by a woman speaking calmly, professionally, and with great personal restraint with the on-scene police supervisor. The Supervisor appears to be a Captain.

The audio of the woman starts with "Cause you're in a tough area....I need to figure out a way to address this. Honesty..." Captain interrupts and says "I  understand what you're saying." The woman goes on to remark "we just can't keep, like right now, everybody's leaving and tomorrow's another day. Everybody's gonna come back here tomorrow and it's gonna be the same thing."

As the woman continues to speak, she says "so, we really, just address it so we can do whatever you want us to do." The Captain's response is "Right now, we're just trying to reduce crowds, reduce any potential for violence. So, these guys out here drinking and smoking weed, that's the potential for violence."

Woman: "Well, my thing defense to what you're saying, you'd need to check the call records as far as calls that you get where there has been calls where there's been violence or fighting or anything. Everybody up here is like a family, so, if we do see something that is out of line or out of place, people speak up, this is a like a community, so, I really do not understand, I feel like this is not justified. If there's kids drinking..." and she's interrupted by someone else at the scene saying something that can't be easily made out.

The man doing the video recording now turns the camera to a while car leaving the scene, and says "Alright man, got y'all, for the people, baby" and now a police squad drives by with a uniformed officer inside. The cameraman was already seen by dozens of officers who are quite aware that he's doing the video recording, and they say nothing to him, and the Captain says nothing the entire time.

The woman stats speaking after the squad passes by "where, like, you disperse us, and then everybody goes back, like when you have ten officers walking up and down this area...there's never been a problem with that. I feel like if you've got everybody in one area where they know, they see your presence, and and, you know, that's been going on. And there's nothing going on, you can be here, we don't mind you guys getting out the cars and walking up and down the blocks, and engaging and interacting with us. We don't mind that. We don;t want you to come here and say hey...everybody just leave, because we have nowhere else to go. This is our last place to go where we feel safe. We don't want to go anywhere else on somebody's block where now we're in a range where we can get shot. There's too much shooting going on. But, over here, this is out safety.

I've been doing massage, if you look at this chair, I've been doing massage here for Chicago Public Schools. I service 70 Chicago Public Schools, I service 2,000 teachers. So, hat chair, I wouldn't be here with my chair if I didn't feel like I was safe here, that I could turn my back an do a..."

At this time, a plainclothes female officer with dark black hair pulled back, wearing a grey t-shirt with a black bulletproof vest on top of it, and her name tag on her right on the front of the vest, get out of car# 6408 (car has no beat tag on top, a violation of Chicago Police Department policy), and she yanks the phone / camera out of the camera man's hands, cuffs him, and ask him if he had her permission to record her. The officer then starts speaking spanish in reference to his I.D. The video ends there.

The Legal Aspects of This Case  

In 2012, 300 arrests were thrown out in reference to Chicago public parks, trespassing, and closing hours, after that number of protesters were arrested for being present in a Chicago Public Park. The court held that the statute was unconstitutional on its face and as applied. This is explained by Attorney Jerry Boyle in this video: 

The City of Chicago is appealing this case, and the case is still in court. Cook County Circuit Judge Thomas M. Donnelly ruled that the city unfairly singled out protesters for violating an 11 p.m. curfew in Grant Park on October 2011, when police arrested hundreds of people. The judge said the curfew itself was a violation of the public's right to free assembly.

This piece of case law applies because we don't see the police rounding up anyone else, just these people, and for reasons that are unclear and overly vague. When it comes to time and place restrictions on gatherings, free speech, gathering and dissemination of information, and other protected activities, police have to give orders that are clear, and have a compelling governmental interest. Without such, the police order to disperse is unreasonable and therefore unconstitutional on its face and as applied.

Saying that there is a mere potential for x, y, or z, is not a factual finding of a reasonable person in any capacity, it's conjecture and speculation. THAT IS a factual finding of any reasonable person. The police seem to think that a person has to be an attorney to defend themselves or argue factual findings at circumstance, and factual findings at law. Illinois requires that the laws be such that a person of ordinary intelligence can read them, understand them, and make factual findings about what conduct is prohibited, when it's prohibited, and why it's prohibited.      

There are also these pieces of case law in regards to the Illinois Eavesdropping and Wiretapping acts, which also apply directly to this incident: 

People of the State of Illinois Vs. Malongo, which references the court case in which the Cook County State's Attorney got her rear end handed to her by the circuit court, appellate courts, and finally, State Attorney Alvarez's appeal was rejected by the U.S. Supreme Court in a clear statement made by way of the rejection itself.

The Supreme Court denied certiorari to Anita Alvarez v. ACLU of Illinois in its list of orders, allowing to stand a federal appeals court’s injunction against the law, which prohibits audio recording of any part or all of a conversation unless all parties agree to the recording. In 2010, the American Civil Liberties Union of Illinois challenged the legislation when applied to recording police officers conducting official duties, saying the First Amendment protects individuals’ right to openly record the officers.

In the 7th Circuit Court of Appeals decision in May, Judges Diane Sykes and David Hamilton stopped short of overturning the law entirely, but prohibited enforcing the law while it was sent it back to lower courts. Sykes wrote: “The Illinois eavesdropping statute restricts far more speech than necessary to protect legitimate privacy interests; as applied to the facts alleged here, it likely violates the First Amendment’s free speech and free-press guarantees.” Judge Richard Posner dissented. (While the appeal was pending, several news organizations filed a brief urging the 7th Circuit panel to block enforcement of the law.)

See U.S. Supreme Court denial of certiorari here on line 12-318 (PDF File)

Relevant portions of Malongo in the Illinois State Supreme Court:

¶ 20
The constitutionality of a statute is a question of law that we review de novo
People v. Madrigal
, 241 Ill. 2d 463, 466 (2011). We presume that a statute is constitutional and, thus, the party challenging its constitutionality bears a burden of clearly establishing that the statute violates the constitution.

People v. Kitch
, 239 Ill. 2d 452, 466 (2011). In addition, if it is reasonably possible to construe the challenged statute in a manner that preserves its constitutionality, we have a duty to do so.

People v. Hollins
, 2012 IL 112754, ¶ 13.
¶ 21 As an initial matter, we reject the State’s suggestion that the trial court’s ruling in the present case was based entirely on due process. The defendant’s motion raised a first amendment challenge. The trial court gave careful consideration and significant weight to the Seventh Circuit’s opinion in Alvarez, a first amendment case. Finally, in its written order, the trial court specifically described the statute as “vague” and noted that it subjects innocent conduct to prosecution; in effect, the court found the statute to be overbroad. While vagueness and overbreadth may be considered in a due process challenge, they are also properly applied in the first amendment context. See,
People v. Sharpe
, 216 Ill. 2d 481,
527 (2005) (if first amendment rights are not at stake in a vagueness challenge, “due process is satisfied if: (1) the statute’s prohibitions are sufficiently definite, when measured by common understanding and practices, to give a person of ordinary intelligence fair warning as to what conduct is prohibited, and (2) the statute provides sufficiently definite standards for law enforcement officers and triers of fact that its application does not depend merely on their private conceptions” (internal quotation marks omitted));

City of Chicago v. Pooh Bah Enterprises, Inc.
, 224 Ill. 2d 390, 442 (2006) (“[W]hen a law threatens to inhibit the exercise of constitutionally protected righ ts such as those protected under the first amendment, the Constitution demands that a more stringent vagueness test be applied. In such a scenario, a statute is void for vagueness if it reaches a substantial amount of constitutionally protected conduct.”).

Moving forward, there are also these gems from case law archives: 

People v. Ceja, 204 Ill. 2d 332, 349-50 (2003) (holding that consent under the eavesdropping statute may be express or implied; implied consent is consent in fact, inferred from the surrounding circumstances that indicate the individual knowingly agreed to the recording). Clark, 2014 IL 115776, 22. and United States v. Stevens, 559 U.S. 460, 473 (2010) (a statute may be invalidated as overbroad if a substantial number of its applications are unconstitutional when judged in relation to the statute’s legitimate sweep).