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 is...in 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,
e.g
.,
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.”).  

See the entire Illinois Supreme Court ruling here. (PDF File) 

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). 

SCOTUS Set to Hear Arguments in 1ST Amendment Case - U.S. Vs. Elonis

What is U.S. Vs. Elonis, and WHY is it SO IMPORTANT? 

Anthony Elonis is an individual in the commonwealth country of Pennsylvania who was arrested after what he says was simply the act of "venting" on Facebook.  Elonis wrote status updates such as:

"Did you know that it's illegal for me to say I want to kill my wife?
It's illegal.
It's indirect criminal contempt.
It's one of the only sentences that I'm not allowed to say.
Now it was okay for me to say it right then because I was just telling you that it's illegal for me to say I want to kill my wife."

According to Elonis, he obtained the above words from The Whitest Kids U' Know, in which comedian Trevor Moore begins "Did you know that it's illegal to say, 'I want to kill the president of the United States of America.' "

Elonis was subsequently arrested, tried, and convicted. The court gave Elonis 44 months in prison, followed by a term of supervised community release. Criminologist Rob D'Ovidio of Drexel University is watching this case closely.

NPR has their own story on this.

Pennsylvania isn't part of the U.S.? 

Yes, the term "commonwealth country" was used in place of the term "state". Legally, a commonwealth is not a state and does not enjoy state status in the union of U.S. States. The reason for a commonwealth being only that has to do with how much of the U.S. Constitution and U.S. Bill of Rights was ratified by a territory wishing to become a state and enjoy full status as a state in the union of U.S. states. There also needs to be a constitutional convention in which one third of state legislatures vote on things such as which territory can join the union of U.S. states.

For exactly these reasons, Shortwave America is treating Pennsylvania as a separate country within U.S. borders until there is evidence to suggest otherwise. SCOTUS cases involving commonwealth territories are always difficult for the court because a commonwealth draws their own law, and their laws are usually out of date and out of synch with the current day. Commonwealth territories are almost always more concerned about tradition and image than balancing the rights of people. 

The 1st Amendment, Threats, Misconduct, and Reasonable Restrictions on Speech

Elonis' case has traversed the court system, and now the U.S. Supreme Court says they'll hear the case and make a decision. Right from the Official SCOTUS Blog, Shortwave America has this tracking available: 

Date	Proceedings and Orders
Dec 20 2013	Application (13A695) to extend the time to file a petition for a writ of certiorari from January 15, 2014 to March 7, 2014, submitted to Justice Alito.
Jan 6 2014	Application (13A695) granted by Justice Alito extending the time to file until February 14, 2014.
Feb 14 2014	Petition for a writ of certiorari filed. (Response due March 21, 2014)
Mar 12 2014	Order extending time to file response to petition to and including April 21, 2014.
Mar 21 2014	Brief amici curiae of Thomas Jefferson Center for the Protection of Free Expression, et al. filed.
Apr 21 2014	Brief of respondent United States in opposition filed.
May 5 2014	Reply of petitioner Anthony Douglas Elonis filed.
May 6 2014	DISTRIBUTED for Conference of May 22, 2014.
May 27 2014	DISTRIBUTED for Conference of May 29, 2014.
Jun 2 2014	DISTRIBUTED for Conference of June 5, 2014.
Jun 9 2014	DISTRIBUTED for Conference of June 12, 2014.
Jun 16 2014	Petition GRANTED In addition to the question presented by the petition, the parties are directed to brief and argue the following question: "Whether, as a matter of statutory interpretation, conviction of threatening another person under 18 U. S. C. §875(c) requires proof of the defendant's subjective intent to threaten."

As we can see, SCOTUS is looking at what is known as "statutory interpretation". This encompasses statutory scheme, statutory design, and statutory intent and spirit just to start with. The statutory interpretation of a threat is usually narrowed down to whether or not a person on the receiving end of a threat could reasonably feel as if they were going to be in reasonable jeopardy of being battered, and if he person making such threat did so knowingly, intentionally, and without legal justification.

The issue before SCOTUS is now precisely the following: (1) Whether, consistent with the First Amendment and Virginia v. Black, conviction of threatening another person under 18 U.S.C. § 875(c) requires proof of the defendant's subjective intent to threaten, as required by the Ninth Circuit and the supreme courts of Massachusetts, Rhode Island, and Vermont; or whether it is enough to show that a “reasonable person” would regard the statement as threatening, as held by other federal courts of appeals and state courts of last resort; and (2) whether, as a matter of statutory interpretation, conviction of threatening another person under 18 U.S.C. § 875(c) requires proof of the defendant's subjective intent to threaten.

How do you go about proving beyond the shadow of a doubt (remember, this is a criminal case from which the SCOTUS involvement has arisen)  that someone INTENDED to threaten someone such that they were in real and reasonable fear of receiving a battery? There usually needs to be what we know as intent to further the crime instead of an act of actual furtherance. 

In some states, the legal term for a threat varies. One state may call it simple assault, while another may call it something like "terroristic threats" or "making a threat to commit battery", or something similar along these lines. Many have questioned the constitutionality of laws against making threats for the reason that deciphering real intent to further the act versus something said in a moment of anger and other resulting high emotions is most times extremely difficult because it creates a "hear say" situation whereby it is simply one person's word against another person's word. 

The Supreme Court will consider if Elonis' language was a "true threat," which the lower court defined as speech that is so clearly objectionable, any objective listener could be scared.

The question here that should hopefully be taken in by the court is: If any reasonable objective listener could be scared, is it really a threat, or is it more along the lines of disturbing the peace or disorderly conduct? Both of these named things are criminal acts, but of lower seriousness. 

In all of these details, do the way these laws are prefaced and written rise to such a level that the first amendment to freedom of expression is violated? Do we need to raise the bar for defining a real threat versus conduct that is only mildly to moderately scary / disturbing? 

When looking at speech, no matter where it's done, we always refer to two things: The Miller Test (also called the Three Prong Obscenity Test) in MILLER v. CALIFORNIA, 413 U.S. 15 (1973)
413 U.S. 15, and Time and Place Restrictions applied to the first amendment. Also, as shown above, the Virginia Vs. Black in 538 U.S. 343 , 155 L.Ed.2d 535 is being looked at when balancing the matters of this case.  

Virginia Vs. Black was based upon the following facts:  "Respondents were convicted separately of violating a Virginia statute that makes it a felony "for any person ..., with the intent of intimidating any person or group ..., to burn ... a cross on the property of another, a highway or other public place," and specifies that "[a]ny such burning ... shall be prima facie evidence of an intent to intimidate a person or group." When respondent Black objected on First Amendment grounds to his trial court's jury instruction that cross burning by itself is sufficient evidence from which the required "intent to intimidate" could be inferred, the prosecutor responded that the instruction was taken straight out of the Virginia Model Instructions. Respondent O'Mara pleaded guilty to charges of violating the statute, but reserved the right to challenge its constitutionality."

Communication while in a psychological state of emotional turmoil (anger, high anxiety, passion arising from a closely held belief system, etc) and behavioral criminality are almost always dependent upon context in each different situation since the police, prosecutors, and even the court knows that no situation is the same. 

When looking at whether nor not a statute is unconstitutional, we look at two elemental questions: 

1.Is it unconstitutional on its face? Meaning we ask "is it unconstitutional no matter what?"  

.

2. Is it unconstitutional as applied? Meaning we ask: "was one person or one group of people treated differently than another in the same or substantially similar conduct?" 

First amendment reasonable restrictions on speech: Time, Place, and Manner attach to the first amendment in a four part test.

1.  Does the regulation serve an important governmental interest?
 

2.  Is the government interest served by the regulation unrelated to the suppression of a particular message?
 

3.  Is the regulation narrowly tailored to serve the government's interest?
 

4.  Does the regulation leave open ample alternative means for communicating messages?   

What the court (SCOTUS) does is to take all of this together, and sometimes they may even consider whether or not something new needs to be added, enhanced, modified, or even taken out. The court will also be looking at the usual standard of taking the speech all together with the totality of facts and circumstances, and deciding what was reasonable under law and what wasn't. 

Media and Entertainers Could Get Swept - Up in a Bad SCOTUS Decision

If SCOTUS decides that a threat is defined exactly by what Elonis did, then various media and entertainment people can get caught up in the aftermath of bad interpretations, bad legislation that will surely follow, and lots of people will end up losing their freedom and liberty because all it will take is some overly - sensitive individual or a smart aleck to say they "feel threatened" and that defendant will be arrested, held in jail, and tried. The circuit courts across our nation will be overrun with threat cases, and everyone will have to worry about what they say.