Federal Court Enjoins Alvarez from Prosecuting Anyone Openly Recording On-Duty Police

by Sharlyn Grace

On Monday, April 8, 2013, U.S. District Court judge Amy St. Eve issued a permanent injunction preventing Cook County State’s Attorney Anita Alvarez from prosecuting members of the general public who openly audio record on-duty police officers in public places. The court’s order in DuMelle v. Hanover Park, et al., which was agreed upon by both the plaintiff and Alvarez, stipulates that the section of the Illinois Eavesdropping Act that made such recordings a felony violates the First Amendment of the U.S. Constitution. This is a huge development for those who wish to prevent and document police misconduct within Cook County.

Last May, in ACLU v. Alvarez, the Seventh Circuit declared that “[t]he act of making an audio or audiovisual recording is necessarily included within the First Amendment’s guarantee of speech and press rights,” and in December, U.S. District Court judge Sharon Johnson Coleman enjoined Alvarez from prosecuting ACLU employees or agents under the Eavesdropping Act. Incredibly, Alvarez and other State’s Attorneys continued to pursue such prosecutions.

The plaintiff in this case, Kristopher DuMelle, suffered from one such prosecution of protected First Amendment activity. DuMelle is a 22 year-old resident of Hanover Park who decided to record Hanover Park Police officer Santos Diaz as he stopped DuMelle and a group of friends last October. Concerned that he and his friends were being stopped without legitimate reason, DuMelle began recording Diaz on his cell phone—leading to DuMelle’s brutal arrest and subsequent charges under the eavesdropping law, resisting arrest, and obstructing a peace officer. DuMelle’s eavesdropping charges were dismissed only after that judge found the Eavesdropping Act unconstitutional.

It is now clear that Cook County State’s Attorney cannot prosecute people for openly recording on-duty police officers in public places. Other State’s Attorney’s offices should follow suit, refusing to bring charges against anyone exercising this clear First Amendment Right.

Would-be cop watchers and observers should, as always, take note that while Monday’s order may make that activity technically safe from prosecution, police may still respond negatively or aggressively to being recorded. In such a case, a slew of discretionary charges such as those that DuMelle faced (obstructing a peace officer and resisting a peace officer), as well as other malleable charges like disorderly conduct, are available to police and prosecutors and are frequently used to punish lawful conduct. It should also be noted that the injunction appears to limit protections to those openly making audio recordings.

DuMelle v. Alvarez Agreed Order