Chicago's corporation counsel said Friday that police "do not intend to enforce" the state's controversial eavesdropping law during next month's NATO summit, the city's first public acknowledgment of the logistical difficulty and potential legal pitfalls of trying to bar people from recording police officers.
The decision is the latest blow to the statute, one of the strictest such laws in the country, and comes just weeks before thousands of demonstrators armed with smartphones and video cameras are expected to descend on the city during the May 20-21 summit.
Some people who plan to protest had said they were worried police might use the law to arrest protesters who otherwise weren't breaking any laws. They also were concerned that many protesters, especially those from other states, wouldn't be aware of the law.
The law, which carries sentences of up to 15 years in prison if a police officer is recorded without his or her consent, has been under fire in courts and the state Legislature in recent months. Uncertainty about the law's future and the difficulty of enforcing it during summit protests contributed to the city's decision, said Steve Patton, the city's corporation counsel.
"I think it is a recognition that while the law is still on the books, it is currently being constitutionally challenged, coupled with the fact that the police are going to have other things to focus on during the summit," Patton said.
Police Superintendent Garry McCarthy has previously said he doesn't object to allowing people to record police working in public.
When asked Friday if officers have been or will be told not to enforce the eavesdropping law, police spokeswoman Melissa Stratton issued a statement saying the department "feels its focus is better spent on ensuring a safe and secure NATO summit for residents, attendees and those who wish to exercise their First Amendment rights."
Officials at the Cook County state's attorney's office had discussed the issue with the city but were not aware of the decision until they were notified by the Tribune on Friday, spokeswoman Sally Daly said. Despite the city's decision, prosecutors will handle any potential eavesdropping arrests during the summit on a case-by-case basis, she said.
Representatives of the American Civil Liberties Union of Illinois had asked city officials recently not to enforce the law during the summit, but the city denied the ACLU's request, said Ed Yohnka, an ACLU spokesman. Yohnka said the city's change of course makes sense.
"We're pleased that the people who come here from around the country, and even people from Illinois who aren't aware of the law, will not be subjected to prosecution simply for monitoring the activities of police," he said.
But Jon Ziegler, who videotapes events for Occupy Chicago and other social movements and streams them on the Internet, said he's skeptical that the city's decision will prevent officers from confronting protesters who record them during the summit.
"It doesn't really change my strategy, said Ziegler, 32, who lives on the North Side. "I still feel that if any officer doesn't want you to film them and they want to arrest you because of it, they'll do it anyway and come up with the charge after the fact."
Unlike laws in most states, which only require the consent of one party before a conversation can be recorded, the Illinois statute makes it a felony to record a conversation without the consent of all parties.
But the law's more controversial provision — that people cannot record police officers working in public without their consent — is at odds with a recent federal appeals court decision and the position of the federal Department of Justice.
The 1st U.S. Circuit Court of Appeals in Boston ruled last year that people have a right to record police working in public after a man was arrested by Boston police for recording them while they arrested another person on the Boston Common. The city settled a lawsuit stemming from the case for $170,000 last month, according to the ACLU.
In January, the Department of Justice argued in a Maryland case that "the First Amendment protects the rights of private citizens to record police officers during the public discharge of their duties."
Public debate over the Illinois law has been simmering since last summer.
In August, a Cook County jury acquitted a woman who had been charged for recording Chicago police internal affairs investigators she believed were trying to dissuade her from filing a sexual harassment complaint against a patrol officer. Judges in Cook and Crawford counties later declared the law unconstitutional, and the McLean County state's attorney cited flaws in the law when he dropped charges in February against a man accused of recording an officer during a traffic stop.
Meanwhile, the 7th U.S. Circuit Court of Appeals in Chicago is expected to rule soon in an ACLU lawsuit that argues the law violates First Amendment rights.
Some law enforcement groups, including the Fraternal Order of Police, have opposed efforts to allow people to record police, saying that doing so could dissuade witnesses from speaking with police and potentially traumatize crime victims.
A bill that would have allowed citizens to record audio of police officers in public failed to pass the House last month. But its sponsor, Rep. Elaine Nekritz, D-Northbrook, filed an amendment to a similar bill Friday that seeks to address concerns expressed by critics of the original bill.
Chicago police won't enforce eavesdropping law during NATO summit, city says
Chicago Corporation Counsel Steve Patton, left, with Mayor Rahm Emanuel at a recent City Council meeting, says the city will not enforce a controversial eavesdropping law during next month’s NATO summit. (Nancy Stone, Chicago Tribune)