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Police Supt. McCarthy Comes Out Against Eavesdropping Act

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Supt. Garry McCarthy

Police Supt. Garry McCarthy is calling on neighbors to help fight crime in the Englewood and Harrison districts. (Credit: CBS)

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CHICAGO (CBS) — It is illegal to record a conversation with a police officer if you get pulled over or have a run-in, but police Supt. Garry McCarthy says that should change.

McCarthy said the state law against recording conversations between police and civilians is just as bad for the police as it is for citizens.

His comments may help State Rep. Elaine Nekritz (D-Northbrook) pass a bill out of her committee Tuesday reversing that law, called the Eavesdropping Act.

The law, approved in 2010, makes recording officers without their permission a Class 1 felony.

As a police official in New York and New Jersey, McCarthy found it helpful to record officers politely, but firmly, informing protesters that if they did not end their protest, they would be arrested. That prevented brutality suits against his officers, he said.

McCarthy planned to use the same approach with the Occupy Chicago protesters.

“The first night, after we made 147 arrests, the goal was to assure that what was recorded was the fact that, ‘Excuse me, sir, you are in violation of the law; You are about to be arrested; You have the opportunity to leave. If you choose to leave, you can leave now. If you choose to stay, you will be arrested.’ Which was the warning that we gave every single one of the 147 people that were arrested that night,” McCarthy told a panel at Loyola University on Wednesday.

“The next day, I said, ‘Let me see the videotape.’ All I saw was this:” McCarthy pantomimed officers mouthing words to protesters.

“This is a foreign concept to me,” McCarthy said. “This is problematic, because the idea was to show exactly what we were doing was giving people warnings . . . It was an enlightening moment for me. . . . Illinois is the only state in the union that has such a law.”

McCarthy was careful to say it is his job to enforce the law, not to advocate for changes in law and policy. But part of the procedure he hopes to use for managing protests at the G8 and NATO summits in Chicago this fall is video- and audio-recording of arrests.

If Illinois still bans audio-recording of arrests, that complicates his plans.

“I actually am a person who endorses video and audio recording,” he said. “There’s no arguments when you can look at a videotape and see what happened.”

McCarthy was joined on the dais by an attorney for the ACLU — which is challenging the law’s constitutionality in federal court — and by Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press.

“It is unique in the nation,” Dalglish said of Illinois’ law that requires “two-party consent” — both people being audio-recorded must consent to it.

Nekritz’s bill seeks to narrowly change part of the law, allowing citizens to record officers who are on-duty in a public place.

A downstate judge recently ruled the law unconstitutional, and the federal court in Chicago may weigh in on the issue shortly.

Multiple people have been arrested and have faced serious charges for recording officers.

In August of last year, Taiwanda Moore, 20, was acquitted of a felony violation of the act, after she secretly recorded two police Internal Affairs officers while filing a sexual harassment complaint against a third officer.

Moore had said she didn’t know about the Eavesdropping Act, but her attorney argued that she was protected under an exemption to the statute that allows such recordings if someone believes a crime is being committed or is about to be committed. She argued that the officers had been stalling and bullying her.

No action was ever taken against any of the officers.

Meanwhile, artist Chris Drew is awaiting trial on charges of violating the Eavesdropping Act when he was arrested in December 2009 for peddling his art without a permit on State Street downtown.

Drew was charged with videotaping his own arrest, and faces up to 15 years in prison if convicted.

And in November of last year, Loyola journalism professor Ralph Braseth was taken into custody after videotaping the arrest of a teenage boy who jumped the turnstile at the Chicago Avenue Red Line subway stop. Breseth had been shooting for a documentary about youth from poor neighborhoods flooding the downtown area on weekends.

Braseth was released without charges, but the arresting officer erased the files on his Kodak flip camera. He later filed a complaint against the officer, claiming that videotaping an arrest from the distance was different from recording a conversation and thus did not violate the Eavesdropping Act.

The Fraternal Order of Police, which represents Chicago officers, has opposed changing the law out of fear citizens will selectively edit footage of officers to make them look bad.

The Chicago Sun-Times contributed to this report, via the Sun-Times Media Wire.

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