Case: 1:10-cv-05235 Document #: 33 Filed: 10/28/10 Page 1 of 7 PageID #:382

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

The American Civil Liberties Union of

)

Illinois,

)

)

Plaintiff, ) Civil Action No.: 10 C 5235

)

v.

) Suzanne B. Conlon, Judge

)

Anita Alvarez,

)

)

Defendant. )

MEMORANDUM OPINION AND ORDER The American Civil Liberties Union of Illinois ("the ACLU") seeks declaratory and injunctive relief against Anita Alvarez, in her official capacity as the Cook County State's Attorney, with respect to the Illinois Eavesdropping Act, 720 ILCS 5/ 14 ("the Act"). The State's Attorney moves to dismiss the complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), while the ACLU moves for a preliminary injunction. For the reasons set forth below, the motion to dismiss is granted for lack ofjurisdiction, and the motion for preliminary injunction is denied as moot.
BACKGROUND The following facts are derived from the ACLU's complaint. The ACLU is a non-profit organization with more than 20,000 members; its asserted mission is to defend and expand certain rights under federal and state laws. Compl. ~ 7. To that end, the ACLU gathers, receives and records information, which it then regularly publishes or disseminates to the general public, or presents to a governmental entity in order to petition for redress of grievances. !d. at ~~ 1113. One category of information concerns police conduct in public places. !d. at ~~ 14-15.

Case: 1:10-cv-05235 Document #: 33 Filed: 10/28/10 Page 2 of 7 PageID #:383
The ACLU currently monitors or otherwise observes police practices. Jd. The ACLU intends to "undertake a program to ... audio record police officers, without the consent of the officers, when (a) the officers are performing their public duties, (b) the officers are in public places, (c) the officers are speaking at a volume audible to the unassisted human ear, and (d) the manner of recording is otherwise lawful." Jd. at ~~ 3, 16, 32. The ACLU intends to disseminate the recordings of the police officers to the public and use the recordings to petition the goverrunent for redress of grievances. Jd. The ACLU asserts that audio recordings will assist in both deterring and detecting police misconduct. I d. at ~~ 17- 21.
The ACLU has not undertaken its program, alleging fear of prosecution by the State's Attorney under the Act. Jd. at ~~ 4, 33. The Act provides that a first offense ofnonconsensual eavesdropping is a Class 4 felony. Jd. at ~ 23(d) (citing 720 ILCS 5/14-4(a)). "A person commits eavesdropping when he ... [k]nowingly and intentionally uses an eavesdropping device for the purpose of hearing or recording all or any part of any conversation . . . unless he does so . . . with the consent of all ofthe parties to such conversation. ..." . Jd. at ~ 23(a)(citing 720 ILCS 5/14-2(a)(l)(A)). The ACLU cites to one current and three prior state prosecutions against civilians pursuant to the Act. Jd. at ~~ 30-31.
The ACLU brings this pre-enforcement action contending that the Act violates its First Amendment right to free speech, petition the government for redress of grievances and freedom ofthe press to audio record police officers without their consent (and presumably without the consent of third parties with whom police officers speak). Jd. at ~ 39. The State's Attorney moves to dismiss the complaint contending, in part, that the ACLU lacks standing, and the
2

Case: 1:10-cv-05235 Document #: 33 Filed: 10/28/10 Page 3 of 7 PageID #:384
decision in Younger v. Harris, 401 U.S. 37, 91 S. Ct. 756, 27 L. Ed. 2d 669 (1971) requires this court to abstain from ruling on the merits of the First Amendment claim.
ANALYSIS I. Legal Standard
A Rule 12(b)(1) motion to dismiss requires a determination of whether there is subject matter jurisdiction. Fed. R. Civ. P. 12(b)(l). The ACLU bears the burden of establishing standing, and thus subject matter jurisdiction. Pollack v. United States Dep 't ofJustice, 577 F.3d 736,739 (71hCir. 2009), cert. denied,- U.S. - , 130 S. Ct. 1890, 176 L. Ed. 2d 364 (2010); Lujan v. Defenders ofWildlife, 504 U.S. 555, 561, 112 S. Ct. 2130,2136, 119 L. Ed. 2d 351 (1992) ("[t)he party invoking federal jurisdiction bears the burden of establishing these elements [of standing]"). In determining whether the ACLU has met its burden, all well-pleaded allegations are accepted as true, and all reasonable inferences are drawn in its favor. Disability Rights Wisconsin, Inc. v. Walworth County Bd. ofSupervisors, 522 F.3d 796, 799 (7'hCir. 2008); Defenders ofWildlife, 504 U.S. at 561, 112 S. Ct. at 2137 ("[a]t the pleading stage, . . . we ' presum[e] that general allegations embrace those specific facts that are necessary to support the claim."') (quoting Lujan v. National Wildlife Fed 'n, 497 U.S. 871,889, 110 S. Ct. 3177,3189, 111 L. Ed. 2d 695 (1990)); Warth v. Seldin, 422 U.S. 490, 518,95 S. Ct. 2197,2215,45 L. Ed. 2d 343 (1975) (plaintiff must allege facts "demonstrating that he is a proper party to invoke judicial resolution of the dispute and the exercise of the court's remedial powers"). II. Subject Matter Jurisdiction
Under Article III ofthe United States Constitution, federal courts are limited to deciding cases and controversies. Defenders of Wildlife, 504 U.S. at 559-60, 112 S. Ct. at 2136. As one of
3

Case: 1:10-cv-05235 Document #: 33 Filed: 10/28/10 Page 4 of 7 PageID #:385
the limits, a plaintiff must have "a personal stake in the outcome" of the case. City ofLos Angeles v. Lyons, 461 U.S. 95, 101, 103 S. Ct. 1660, 1665,75 L. Ed. 2d 675 (1983); Warth, 422 U.S. at 498-99, 95 S. Ct. at 2205. To satisfy this requirement, "a plaintiff must show that he is under threat of suffering 'injury in fact' that is concrete and particularized; the threat must be actual and imminent, not conjectural or hypothetical; it must be fairly traceable to the challenged action of the defendant; and it must be likely that a favorable judicial decision will prevent or redress the injury." Summers v. Earth Island Institute,-- U.S.--, 129 S. Ct. 1142, 1149, 173 L. Ed. 2d 1 (2009); Defenders ofWildlife, 504 U.S. at 560-61 , 112 S. Ct. at 2136.
Accepting the well-pleaded allegations of the complaint as true, the ACLU has not satisfied its burden of showing that it has standing. As the ACLU alleges, a violation of the Act occurs when a person knowingly and intentionally uses an eavesdropping device to hear or record a conversation without the consent ofthe parties to the conversation. Compl. at ~ 23(a)(citing 720 ILCS 5/ 14-2(a)(1)(A)). Creating the ACLU program is not, in itself, a violation of the Act. Shirmer v. Nagode, No. 09-2332, 2010 WL 3431627, at *5-*6 (71h Cir. Sept. 2, 2010) (standing is lacking where statute does not cover intended conduct). The State's Attorney has not threatened the ACLU with prosecution if its program is implemented, and the ACLU has not cited any case where an organization has been prosecuted for violating the Act. The four cases the ACLU cites for its alleged fear of prosecution were all brought against individuals, and the Cook County State's Attorney filed only one of those cases. The others were filed by the Champaign County State's Attorney in 2004, the Crawford County State' s Attorney in 2009, and the DeKalb County State's Attorney in 2009. ld. at~~ 30-31. Unlike Holder v. Humanitarian Law Project,- U.S. - , 130 S. Ct. 2705, 2717, 177 L. Ed. 2d 355 (2010), litigation that was pending for 12 years at the
4

Case: 1:10-cv-05235 Document #: 33 Filed: 10/28/10 Page 5 of 7 PageID #:386
time of the decision on standing, the State's Attorney has neither prosecuted numerous individuals under the Act, nor suggested that it would (or would not) prosecute the ACLU.
Even if the ACLU were prosecuted, there is no allegation that prosecution is imminent. The ACLU has not alleged any time frame within which it intends to implement its program once the program parameters are established, nor has it shown that its members intend to participate in the program. Defenders ofWildlife, 504 U.S. at 564, 112 S. Ct. at 2138 n.2. Based upon the complaint, the State's Attorney does not appear to be actively pursuing prosecutions of the Act, and the ACLU has not alleged that an organization could or would be prosecuted under the Act. "When plaintiffs 'do not claim that they have ever been threatened with prosecution, that a prosecution is likely, or even that a prosecution is remotely possible,' they do not allege a dispute susceptible to resolution by a federal court." Babbitt v. United Farm Workers Nat 'l Union, 442 U.S. 289, 298-99, 99 S. Ct. 2301,2309,60 L. Ed. 2d 895 (1979) (quoting Younger, 401 U .S. at 42, 91 S. Ct. at 749). No imminent threat of injury to the ACLU is alleged.
In addition, while an organization may aver standing of its members and act in a representative capacity, Summers, 129 S. Ct. at 1149, the ACLU has not done so. At least one member of the ACLU who would suffer harm must be identified by allegation, and for purposes of a preliminary injunction, by affidavit. Id at 1151-52; see also Defenders of Wildlife, 504 U.S. at 563, 112 S. Ct. at 2137-38 (as a result of failing to "submit affidavits . . . showing, through specific facts ... that one or more of respondents' members would . .. be 'directly' affected . . .," the organization lacked standing) (quoting Sierra Club v. Morton, 405 U.S. 727, 734, 735, 739, 92 S. Ct. 1361, 1366, 1368, 31 L. Ed. 2d 636 (1972)); Warth, 422 U.S. at 516, 95 S. Ct. at 2214 (association lacked standing because it failed to allege facts sufficient to allow it to serve as the
5

Case: 1:10-cv-05235 Document #: 33 Filed: 10/28/10 Page 6 of 7 PageID #:387
representative of its members). The complaint is devoid of an allegation that any of the ACLU's 20,000 members or employees desires to participate in the ACLU program.1
The court recognizes that a party is not required to violate the Act before challenging its constitutionality. Babbitt, 442 U.S . at 302, 99 S. Ct. at 2310-11. In this case, though, the ACLU's allegations regarding fear ofprosecution are wholly speculative. In addition, the ACLU has not alleged organizational standing. Accordingly, the motion to dismiss for lack of jurisdiction must be granted.2
The State's Attorney also contends that the Younger doctrine applies. Under Younger, "principles ofjudicial economy, as well as proper state-federal relations, preclude federal courts from exercising equitable jurisdiction to enjoin ongoing state prosecutions." Wooley v. Maynard, 430 U.S. 705,710,97 S. Ct. 1428, 1433,51 L. Ed. 2d 752 (1977) (citing Younger, 401 U.S. at 43, 91 S. Ct. at 750). There is no ongoing state prosecution of the ACLU with respect to the Act. The Seventh Circuit has recognized, though, that a federal court may abstain if a state prosecution is imminent. 520 S. Michigan Ave. Associates, Ltd v. Devine, 433 F.3d 961, 963 (71h Cir. 2006) (emphasis in original). Because the ACLU lacks standing, the applicability of Younger and 520 South Michigan need not be addressed. Similarly, the court does not reach the other asserted grounds for dismissal, namely that the ripeness doctrine precludes review of this
1Even ifthis court were to consider the declaration ofColleen K. Connell, Executive Director ofthe ACLU, filed in support of the preliminary injunction motion, Ms. Connell does not state that she would participate in the ACLU program.
2The court notes the ACLU' s allegation that"(u]nless enjoined by this Court, defendant will continue to prosecute, pursuant to the Act, people who audio record police officers performing their public duties in public places." Compl. ~ 34. Yet, "when the asserted harm is a 'generalized grievance' shared in substantially equal measure by all or a large class of citizens, that harm alone normally does not warrant exercise ofjurisdiction." Warth, 422 U.S. at 499,95 S. Ct. at 2205; Defenders ojWildlife, 504 U.S. at 57374, 112 S. Ct. at 2143.
6

Case: 1:10-cv-05235 Document #: 33 Filed: 10/28/10 Page 7 of 7 PageID #:388

case, and the ACLU fails to state a claim upon which relief can be granted because there is no First Amendment right to audio record speech of parties without their consent.
CONCLUSION For the reasons set forth above, the motion to dismiss is granted pursuant to Rule 12(b)(l) of the Federal Rules of Civil Procedure. As a result, the ACLU's preliminary injunction motion is moot.

October 28, 2010

ENTER:
~· IS.~
Suzatme . Conlon United States District Judge

7

 
 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

The American Civil Liberties Union of

)

Illinois,

)

)

Plaintiff, )

)

v.

)

)

Anita Alvarez,

)

)

Defendant. )

Civil Action No .: 10 C 5235 Suzanne B. Conlon, Judge

MEMORANDUM OPINION AND ORDER The American Civil Liberties Union of Illinois ("the ACLU") sues Anita Alvarez, in her official capacity as Cook County State's Attorney, seeking declaratory and injunctive relief with respect to the Illinois Eavesdropping Act, 720 ILCS 5114 ("the Act"). The case was previously dismissed for lack of standing [33]. The court entered ajudgment dismissing the case without prejudice [34]. The ACLU moves to alter the judgment, file an amended complaint, add two individuals as plaintiffs and obtain a preliminary injunction.
PROCEDURAL ISSUE The judgment at issue dismissed the case without prejudice. Fed. R. Civ. P. 41(b). As a result of the entry of a final judgment, the ACLU lost the right to amend its complaint. Foster v. DeLuca, 545 F.3d 582, 584 (7'hCir. 2008) ("the district court lacks jurisdiction to entertain a motion for leave to amend the complaint unless the plaintiff also moves for relief from the judgment") (quoting Camp v. Gregory, 67 F.3d 1286, 1289-90 (7'h Cir. 1995)); Paganis v. Bionstein, 3 F.3d 1067, 1070, 1072-73 (7'h Cir. 1993) (dismissal of the case causes the plaintiff to choose between filing an appeal or moving to alter the judgment and amend the complaint).

Pursuant to Rules 59(e) and 15(a), the ACLU moves for leave to alter judgment and file the amended complaint attached to its motion. Sparrow v. Heller, 116 F.3d 204, 205-06 (7thCir. 1997). The ACLU timely filed its motion within 28 days of the entry ofjudgment. Fed. R. Civ. P.59(e). In order to decide whether to grant Rule 59(e) relief, the court must consider the merits of the ACLU's motion for leave to amend its complaint. Harris v. City ofAuburn, 27 F.3d 1284, 1287 (7th Cir. 1994); Paganis, 3 F.3d at 1073, n.7. Leave to amend should not be granted if amendment would be futile, the ACLU acted with undue delay, bad faith or dilatory motive, the ACLU repeatedly failed to cure deficiencies by amendments previously allowed, or undue prejudice to the State's Attorney would occur if amendment were permitted. Barry Aviation Inc. v. Land 0 'Lakes Municipal Airport Com 'n, 377 F.3d 682, 687 (7th Cir. 2004). The relevant inquiries here are whether the ACLU's amended complaint cures deficiencies in its initial complaint related to the issue of standing, and whether amendment would be futile.
BACKGROUND
The following facts are derived from the amended complaint. The ACLU is a non-profit organization with more than 20,000 members; its asserted mission is to defend and expand federal and state rights . ACLU Memo, Ex. I (Am. Compl.) at ~ 7. To that end, the ACLU gathers, receives and records information, which it then publishes or disseminates to the general public, or presents to a governmental entity in order to petition for redress of grievances . Id. at ~~ 13-14.
To assist in deterring and detecting police misconduct, the ACLU has developed a program to "audio record police officers, without the consent of the officers, when (a) the officers are performing their public duties, (b) the officers are in public places, (c) the officers are
2

speaking at a volume audible to the unassisted human ear, and (d) the manner of recording is otherwise lawful." Jd. at ~ 3. The ACLU was prepared to audio record police while monitoring a Chicago Police Department program of suspicionless container searches on Chicago's lakefront on June 10,2010, and during a protest at the James R. Thompson Center on November 8, 2010. Jd. at ~ 22. The ACLU, Colleen Connell, ACLU executive director, and Allison Carter, an ACLU employee, are prepared to immediately audio record police officers in public places, whether planned or spontaneous. Jd. at ~~ 3, 17. Connell would direct Carter to audio record police at an annual anti-war protest in spring 2011, and Carter would do so. Jd. at ~ 23.
The ACLU, Connell and Carter have not carried out the ACLU 's program due to fear of prosecution by the State's Attorney under the Act. Jd. at ~~ 19,23. The Act provides that a first offense of nonconsensual eavesdropping is a Class 4 felony. Jd. at ~ 32(d) (citing 720 ILCS 5/14-4(a)). "A person commits eavesdropping when he ... [kJnowingly and intentionally uses an eavesdropping device for the purpose of hearing or recording all or any part of any conversation . . . unless he does so ... with the consent of all of the parties to such conversation. . .." Jd. at ~ 32(a) (citing 720 ILCS 5/14-2(a)(1)(A)). The ACLU, Connell and Carter cite two pending prosecutions of individuals under the Act by the State 's Attorney, seven other prosecutions under the Act by state's attorneys in other Illinois counties, and several prosecutions by the State's Attorney of private corporations for various criminal offenses other than violations of the Act. Jd. at ~~ 25(c), 25(e), 25(h), 39, 40.
3

ANALYSIS The original complaint failed to allege a credible, imminent threat of prosecution against the ACLU or its members by the State's Attorney under the Act [33]. The ACLU did not have standing and thus the court lacked jurisdiction. Id. The ACLU proposes an amended complaint with additional allegations and two individual plaintiffs that cure the limited ground for dismissal of the original complaint. The ACLU bears the burden of establishing standing. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S. Ct. 2130, 2136, 119 1. Ed. 2d 351 (1992); Pollack v. United States Dep 't of Justice, 577 F.3d 736, 739 (7th Cir. 2009), cert. denied, - U.S. - , 130 S. Ct. 1890, 1761. Ed. 2d 364 (2010). In determining whether the ACLU has met its burden, all well-pleaded allegations of the amended complaint are accepted as true, and all reasonable inferences are drawn in its favor. Defenders of Wildlife, 504 U.S. at 561,112 S. Ct. at 2137 (stating motion to dismiss standard); Warth v. Seldin, 422 U.S. 490, 501,95 S. Ct. 2197, 2206, 45 1. Ed. 2d 343 (1975) (same); Disability Rights Wisconsin, Inc. v. Walworth County Bd. ofSupervisors, 522 F.3d 796, 799 (7th Cir. 2008) (same). The ACLU must show that it "is under threat of suffering 'injury in fact' that is concrete and particularized; the threat must be actual and imminent, not conjectural or hypothetical; it must be fairly traceable to the challenged action of the defendant; and it must be likely that a favorable judicial decision will prevent or redress the injury." Summers v. Earth Island Institute, - U.S. - , 129 S. Ct. 1142, 1149, 1731. Ed. 2d I (2009). The State's Attorney contends the ACLU's amended complaint remains speculative, citing Boyle v. Landry, 401 U.S. 77,91 S. Ct. 758,271. Ed. 2d 696 (1971), O 'Shea v. Littleton, 414 U.S. 488, 94 S. Ct. 669,381. Ed. 2d 674 (1974) and City ofLos Angeles v. Lyons, 461 U.S. 95, 103 S.
4

Ct. 1660, 75 L. Ed. 2d 675 (1983). Boyle challenged Illinois statutes prohibiting mob action, resisting arrest, aggravated assault, aggravated battery and intimidation. 401 U.S. at 78, 91 S. Ct. at 758-59. The Supreme Court found the Boyle complaint failed to allege any threat to arrest or prosecute any of the plaintiffs, and that the plaintiffs challenged state statutes and city ordinances believing they may be relied upon for future , bad-faith prosecutions against them. 401 U.S. at 81, 91 S. Ct. at 760. 0 'Shea was a civil rights case contesting illegal bond setting, sentencing and jury fee practices in criminal cases before a county magistrate and a county circuit court associate judge; the threat of injury was deemed speculative. 414 U.S. at 488, 491 -92, 94 S. Ct. at 669, 674. The plaintiffs did not assert any constitutional right to engage in proscribed conduct or indicate an intention to do so. 414 U.S. at 498, 94 S. Ct. at 677. Lyons involved an allegation the plaintiff was illegally choked by police during a prior traffic stop; the Court found no immediate threat that he would be subjected to a chokehold during a future traffic stop. 461 U.S. at 105-06, 103 S. Ct. at 1667. He lacked standing to seek injunctive relief. 461 U.S. at 110, 103 S. Ct. at 1669-70.
Unlike Boyle, 0 'Shea and Lyons, the ACLU alleges it has been and continues to be deterred in carrying out the ACLU program. The ACLU intended to audio record police activity at events on June 10 and November 8, 2010. ACLU Memo, Ex. I at ~~ 22, 44. The ACLU, as well as Connell and Carter, intend to immediately audio record police activities, including at an anti-war protest in spring 2011. Id. at ~~ 3, 23. The ACLU, Connell and Carter have not audio recorded police officers without their consent due to fear ofprosecution by the State's Attorney under the Act. Id. at~~ 19,23. The ACLU relies upon the State' s Attorney's current prosecution oftwo individuals
5

under the Act and cites prosecutions of corporations for violating other criminal statutes.' Id at ~~ 25(c), 25(h), 39. The State's Attorney has declined to state she would forego prosecution if the ACLU audio records police officers without their consent. Id at ~~ 25(d), 46.
The State's Attorney contends that the ACLU, Connell and Carter cannot assure they will be arrested or prosecuted for violating the Act. A guarantee of injury is not required. Brandt v. Village ofWinnetka, Illinois, 612 FJd 647, 649 (7th Cir. 2010). Prosecution of the ACLU, Connell and Carter under the Act is at least "remotely possible," and they are not required to expose themselves to arrest or prosecution to challenge the Act. Babbitt v. United Farm Workers Nat 'I Union, 442 U.S. 289, 298-99, 99 S. Ct. 2301, 2309, 60 1. Ed. 2d 895 (1979) (quoting Younger v. Harris , 401 U.S. 37,42, 91 S. Ct. 746, 749, 27 1. Ed. 2d 669 (1971)); see also Kucharek v. Hanaway, 902 F.2d 513, 516 (7'h Cir. 1990) (even though no prosecutions under a new obscenity statute occurred, standing existed where plaintiffs demonstrated they wanted to sell materials and were deterred due to fear of prosecution), cert. denied, 498 U.S. 1041 , III S. Ct. 713,1121. Ed. 2d 702 (1991).
The ACLU is not required to show the State's Attorney has threatened prosecution. Majors v. Abell, 317 F.3d 719, 721 (7th Cir. 2003). The same holds true for Connell and Carter, if added as plaintiffs. Id The threat of prosecution is credible and imminent. Commodity Trend Service, Inc. v. Commodity Futures Trading Com 'n, 149 F.3d 679, 687 (7'h Cir. 1998) (credible threat existed where the government declined to affirm it would not enforce statute in issue).
'The ACLU also cites prosecutions by seven other Illinois state's attorneys of individuals under the Act. Because the ACLU alleges it intends to audio record police only in Cook County, prosecutions in other counties are not considered.
6

The ACLU has cured the limited standing deficiencies addressed in the memorandum opinion dismissing the original complaint by sufficiently alleging a threat ofprosecution. However, the credible, imminent threatened injury must implicate a constitutional right. The ACLU has not alleged a cognizable First Amendment injury. The ACLU cites neither Supreme Court nor Seventh Circuit authority that the First Amendment includes a right to audio record. Cj, Polls v. City of Lafayelle, Indiana, 121 F.3d 1106, 1111 (7'0 Cir. 1997) ("there is nothing in the Constitution which guarantees the right to record a public event"). Amendment would therefore be futile.
The ACLU relies on Federal Election Comm 'n v. Akins, 524 U.S. 11,21,24-25, 118 S. Ct. 1777, 1784, 1786, 141 L. Ed. 2d 10 (1998). In Akins, the Supreme Court recognized a failure to receive information may constitute a constitutional injury. Akins considered whether a group of voters had standing to challenge the Federal Election Commission' s dismissal of their complaint. 524 U.S. at 13-14, 118 S. Ct. at 1780-81. The voters contended the American Israel Public Affairs Committee constituted a "political committee" required by the Federal Election Campaign Act to disclose information regarding its membership, contributions and expenditures. Id. ; see also Bensman v. United States Forest Service, 408 F.3d 945, 955-57 (7'0 Cir. 2005) ("[tJhe 'inability to obtain information' required to be disclosed by statute constitutes a sufficiently concrete and palpable injury to qualify as an Article III injury-in-fact") (quoting Grant ex rei. Family Eldercare v. Gilbert, 324 F.3d 383, 387 (5'" Cir. 2003) (quoting Akins, 524 U.S. at 21,118 S. Ct. at 1784)). Unlike Akins, no statute requiring the disclosure of information is in issue here. The ACLU seeks to implement its own program of audio recording conversations of police officers without their consent (and presumably without the consent of other participants in the conversations). Denial of
7

access to statutorily required disclosures is not analogous to a purported First Amendment right to non-consensual audio recording of policies activities.
The State's Attorney argues that a "willing speaker" must exist to implicate the First Amendment's right to free speech. Virginia State Bd a/Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748,756,96 S. Ct. 1817, 1823,48 L. Ed. 2d 346 (1976). In Indiana Right to Life, Inc. v. Shepard, 507 F.3d 545 (7th Cir. 2007), an organization failed to find a judicial candidate willing to answer the organization's questionnaire regarding various legal issues. Id at 549. Because there were no candidates who were willing, but constrained, to speak, the court found the organization did not have standing. Id at 549-50; see also Bondv. Utreras, 585 F.3d 1061, 1078 (7'h Cir. 2009). The ACLU intends to audio record police officers speaking with one another or police officers speaking with civilians. The ACLU's program only implicates conversations with police officers. The ACLU does not intend to seek the consent of either police officers or civilians interacting with police officers. ACLU Memo., Ex. 1 at ~ 3. Police officers and civilians may be willing speakers with one another, but the ACLU does not allege this willingness of the speakers extends to the ACLU, an independent third party audio recording conversations without the consent of the participants. The ACLU has not met its burden of showing standing to assert a First Amendment right or injury.
8

CONCLUSION Amendment would be futile. The ACLU has not alleged a constitutional right or injury under the First Amendment. Rather, the ACLU proposes an unprecedented expansion of the First Amendment. The court does not reach other asserted grounds for relief or the ACLU's renewed motion for preliminary injunction. Accordingly, the ACLU's motion to alter judgment and amend its complaint is denied.

ENTER:

January 10,2011

~4~

Su~

~

United States District Judge

9

 
 Case: 1:10-cv-05235 Document #: 1 Filed: 08/19/10 Page 1 of 12 PageID #:1

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

THE AMERICAN CIVIL LIBERTIES )

UNION OF ILLINOIS,

)

)

Plaintiff,

)

)

v.

)

)

ANITA ALVAREZ, Cook County State’s )

Attorney, in her official capacity,

)

)

Defendant.

)

Case No. ________________ Judge ___________________

COMPLAINT
Plaintiff the American Civil Liberties Union of Illinois (“the ACLU”), by its attorneys, as its Complaint against defendant Anita Alvarez, in her official capacity as the Cook County State’s Attorney, states as follows:
I. NATURE OF THE CASE 1. This is a civil rights action challenging the constitutionality of the Illinois Eavesdropping Act, 720 ILCS 5/14 (“the Act”), as applied to the audio recording of police officers, without the consent of the officers, when (a) the officers are performing their public duties, (b) the officers are in public places, (c) the officers are speaking at a volume audible to the unassisted human ear, and (d) the manner of recording is otherwise lawful. This application of the Act violates the First Amendment to the U.S. Constitution. The ACLU seeks declaratory and injunctive relief pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 2201 et seq. 2. For nearly a century, the ACLU has sought to protect and to expand the civil liberties and civil rights of all persons in Illinois. It has engaged in this

1

Case: 1:10-cv-05235 Document #: 1 Filed: 08/19/10 Page 2 of 12 PageID #:2
constitutionally protected pursuit through public education, including publication through a variety of media, and advocacy before courts, legislatures, and administrative agencies. The corollary right to gather, receive, and record information on matters of public importance relating to civil liberties and civil rights is integral to, and a necessary component of, these other protected activities.
3. In the exercise of these rights, the ACLU intends to undertake a program of monitoring police activity in public places by means including common audio/video recording devices. Specifically, the ACLU intends to audio record police officers, without the consent of the officers, when (a) the officers are performing their public duties, (b) the officers are in public places, (c) the officers are speaking at a volume audible to the unassisted human ear, and (d) the manner of recording is otherwise lawful (hereinafter “the ACLU program”). Where appropriate, the ACLU intends to disseminate such recordings to the public, and also to use these recordings to petition the government for redress of grievances through its advocacy program.
4. The Act makes audio recording police officers in these circumstances a felony. Due to a reasonable fear of arrest and prosecution, the ACLU is restrained from engaging in this conduct. This suit seeks a declaration that such conduct is constitutionally protected, and an injunction against enforcement of the Act as applied to the ACLU program.
II. JURISDICTION AND VENUE 5. This Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343(3) and (4).
6. Venue is proper in this judicial district pursuant to 28 U.S.C. § 1391(b).
2

Case: 1:10-cv-05235 Document #: 1 Filed: 08/19/10 Page 3 of 12 PageID #:3
III. THE PARTIES 7. The ACLU is a non-profit, non-partisan, statewide organization with more than 20,000 members and supporters dedicated to protecting and expanding the civil rights and civil liberties guaranteed by the Constitutions and civil rights laws of the United States and the State of Illinois. 8. Defendant Anita Alvarez is the Cook County State’s Attorney. In this capacity, she is charged with the enforcement of the criminal laws of the State of Illinois, including the Act. She is sued solely in her official capacity for purposes of declaratory and injunctive relief.
IV. FACTS A. The right to gather, receive, and record information
9. The right to gather, receive, and record information is grounded in the Free Speech Clause of the First Amendment. This right is further grounded in:
(a) the Petition Clause of the First Amendment, if the purpose of gathering, receiving, or recording the information is to use it to petition government for redress of grievances; and
(b) the Free Press Clause of the First Amendment, if the purpose of gathering, receiving, or recording the information is to publish and disseminate it to other people.
10. This First Amendment right to gather, receive, and record information includes the right to audio record police officers in the circumstances described herein. B. The ACLU’s exercise of its right to gather, receive, and record information
11. In pursuing its objectives of protecting and expanding civil rights and civil
3

Case: 1:10-cv-05235 Document #: 1 Filed: 08/19/10 Page 4 of 12 PageID #:4
liberties, the ACLU regularly gathers, receives, and records information from numerous sources, including by observing events in public places.
12. After gathering, receiving, and recording information, the ACLU regularly publishes and disseminates that information to the general public, and regularly presents that information to government bodies as part of the ACLU’s efforts to petition the government for redress of grievances.
13. The ACLU regularly engages in its own expressive activity in public places, and regularly records its own expressive activity at these events. C. The ACLU program
14. The ACLU often monitors and observes police conduct in public places. In doing so, the ACLU seeks not only to observe and record the manner in which government employees perform their duties, but also to improve police practices, and to deter and detect any unlawful police interference with constitutional liberties. For example, the ACLU often monitors and observes police conduct at expressive activity in public places, including when the ACLU is engaged in its own expressive activity.
15. The ACLU often gathers, receives, and records information about police practices, and then publishes and disseminates that information to the general public, and uses that information to petition government for redress of grievances.
16. The ACLU intends to undertake the aforementioned program of audio recording police officers, and using and disseminating such recordings. This program would include recording police conduct at expressive activity in public places, including when the ACLU is engaged in its own expressive activity.
4

Case: 1:10-cv-05235 Document #: 1 Filed: 08/19/10 Page 5 of 12 PageID #:5
D. A benefit of audio recording the police 17. While most police officers perform their duties in a lawful manner, some
police officers abuse their authority. 18. In many cases, the only evidence of what happened during an encounter
between police officers and civilians – including whether police officers and/or civilians behaved lawfully – will be the conflicting testimony of police officers and civilians.
19. In many cases, audio recordings of police-civilian encounters will provide critical evidence that is not available from testimony, photographs, or silent videos.
20. Indeed, on many occasions in the last decade, audio/video recordings made by civilians of police-civilian encounters have helped to resolve testimonial disputes about alleged police misconduct. Sometimes these audio/video recordings have tended to disprove allegations of police misconduct, and sometimes they have tended to prove allegations of police misconduct.
21. Federal, state, and local law enforcement agencies have deployed tens of thousands of audio/video recording devices for purposes of documenting certain interactions between police officers and civilians. For example, many police squad cars are equipped with audio/video recording devices that document traffic stops. One law enforcement purpose of these audio/video recording devices is to deter and detect police misconduct, and to disprove false accusations of police misconduct.
22. Indeed, as more fully explained below, see infra ¶¶ 26-27, the Illinois Eavesdropping Act exempts audio/video recordings made by police of conversations between police and civilians during traffic stops, in order to protect both the civilians and the officers from false testimony about these conversations. There is no constitutionally
5

Case: 1:10-cv-05235 Document #: 1 Filed: 08/19/10 Page 6 of 12 PageID #:6
valid basis for allowing police to make such audio recordings, while criminalizing the conduct of civilians who do so. E. The Illinois Eavesdropping Act
23. The Illinois Eavesdropping Act criminalizes the use of a machine to record certain conversations – even if the conversations are not private. Specifically:
(a) The Act provides that “[a] person commits eavesdropping when he . . . [k]nowingly and intentionally uses an eavesdropping device for the purpose of hearing or recording all or any part of any conversation . . . unless he does so . . . with the consent of all of the parties to such conversation . . . .” 720 ILCS 5/14-2(a)(1)(A).
(b) The Act defines “conversation” to mean “any oral communication between 2 or more persons regardless of whether one or more of the parties intended their communication to be of a private nature under circumstances justifying that expectation.” 720 ILCS 5/14-1(d) (emphasis added).
(c) The Act defines “eavesdropping device” to include “any device capable of being used to hear or record oral conversation . . . .” 720 ILCS 5/14-1(a).
(d) The Act provides that a first offense of eavesdropping is a Class 4 felony, 720 ILCS 5/14-4(a), which is punishable by a sentence of imprisonment of one to three years, 730 ILCS 5/5-4.5-45.
24. The legislative purpose of extending the Act to non-private conversations was to criminalize civilian audio recordings of police officers performing their public duties in public places. Specifically:
(a) In 1986, in People v. Beardsley, 115 Ill. 2d 47 (Ill. 1986), the Illinois Supreme Court held that an element of the criminal offense created by the then-
6

Case: 1:10-cv-05235 Document #: 1 Filed: 08/19/10 Page 7 of 12 PageID #:7
existing version of the Act was “circumstances which entitle [the parties to a conversation] to believe that the conversation is private and cannot be heard by others who are acting in a lawful manner.” 115 Ill. 2d at 53 (emphasis added). The Beardsley case involved a motorist who audio recorded a police officer during a traffic stop. Id. at 48-49. The Court held that this motorist did not violate the Act, because the conversation was not private.
(b) Eight years later, in 1994, Illinois amended the Act with Public Act 88-677, also known as House Bill 356. This new law adopted the current definition of “conversation,” to wit: “any oral communication between 2 or more persons regardless of whether one or more of the parties intended their communication to be of a private nature under circumstances justifying that expectation.”
(c) On May 19, 1994, during Senate floor debate regarding this bill, the Senate sponsor stated that the bill had earlier passed out of that chamber “to reverse the Beardsley eavesdropping case . . . .” See Tr. at p. 42.
25. In this regard, the current Illinois Eavesdropping Act is abnormal. The federal ban on audio recording certain conversations, and the vast majority of such state bans, extend only to private conversations – as the Illinois Eavesdropping Act did, before it was amended in 1994 for the purpose of reversing the Beardsley decision. Only a handful of states have extended their eavesdropping bans to non-private conversations. And most of those states, unlike Illinois, do not extend their prohibitions to open and obvious recording, as opposed to secret recording.
7

Case: 1:10-cv-05235 Document #: 1 Filed: 08/19/10 Page 8 of 12 PageID #:8
26. The Illinois Eavesdropping Act exempts certain audio recordings by law enforcement officials of conversations between law enforcement officials and members of the general public. Examples include:
(a) Conversations recorded “simultaneously with the use of an in-car video camera” during “traffic stops, pedestrian stops,” and similar events. 720 ILCS 5/14-3(h).
(b) Conversations with a civilian who is “an occupant of a police vehicle.” 720 ILCS 5/14-3(h-5).
(c) Conversations recorded “during the use of a taser or similar weapon or device” if the device is equipped with audio recording technology. 720 ILCS 5/14-3(h-10).
27. The legislative purpose of the statutory exemptions in the preceding paragraph is to deter and detect police misconduct, and rebut false accusations of police misconduct. Specifically:
(a) In 2009, Illinois amended the Act with Public Act 96-670, also known as House Bill 1057. This new law amended the foregoing exemption (h) to its current form, and created the foregoing exemptions (h-5) and (h-10).
(b) On April 2, 2009, during House debate regarding this bill, the House sponsor stated as follows the legislative purpose:
When there’s audio, then there is no question as to what was said or what wasn’t said and if someone is accused of doing something or saying something, this is the proof that they would have as a citizen also, not only for protection of law enforcement, but for the citizens to have the proof in hand as to what actually happened at that particular [moment].
8

Case: 1:10-cv-05235 Document #: 1 Filed: 08/19/10 Page 9 of 12 PageID #:9
See Tr. at pp. 83-84. See also id. at p. 84 (stating that such audio recording provides “protection for both” police and civilians).
28. Police officers performing their public duties in public places, and speaking at a volume audible to the unassisted human ear, have no reasonable expectation that the words they speak are private and will not be recorded, published, and disseminated. F. Application of the Act to audio recording the police
29. As intended by the Illinois General Assembly, police officers and prosecutors have used the Act to arrest and prosecute members of the general public who made audio recordings of police officers performing their public duties in public places and speaking at a volume audible to the unassisted human ear.
30. For example, defendant the Cook County State’s Attorney currently is prosecuting a civilian for allegedly violating the Act by audio recording a police officer who was arresting him in a public place. The civilian moved to dismiss, arguing that the application of the Act to his audio recording violated the First Amendment. Defendant successfully opposed the motion. The eavesdropping charges are now pending. See People v. Drew, No. 10-cr-4601 (Cook County Circuit Ct.).
31. At least three other State’s Attorneys in Illinois have brought eavesdropping charges under the Act against civilians who made audio recordings of police officers performing their public duties in public places:
(a) The Champaign County State’s Attorney in 2004. See People v. Thompson, No 04-cf-1609 (6th Judicial Circuit Ct.).
9

Case: 1:10-cv-05235 Document #: 1 Filed: 08/19/10 Page 10 of 12 PageID #:10
(b) The Crawford County State’s Attorney in 2009. See People v. Allison, No. 09-cf-50 (2nd Judicial Circuit Ct.).
(c) The DeKalb County State’s Attorney in 2009. See People v. Parteet (16th Judicial Circuit Ct.). G. Necessity of and entitlement to injunctive relief
32. The ACLU would like to undertake the aforementioned program of making audio recordings of police officers.
33. The ACLU has a reasonable fear that if it does so, defendant the Cook County State’s Attorney will prosecute the ACLU for violation of the Act. The ACLU is thus chilled and deterred by the Act and by defendant from undertaking the aforementioned program.
34. Unless enjoined by this Court, defendant will continue to prosecute, pursuant to the Act, people who audio record police officers performing their public duties in public places.
35. The ACLU is suffering, and will continue to suffer, irreparable harm as a result of the denial of the opportunity to undertake the aforementioned program.
36. The ACLU has no adequate remedy at law. V. CLAIM FOR RELIEF
37. The allegations of paragraphs 1 through 36 are realleged and incorporated by reference as if fully set forth herein.
38. The Act violates the First Amendment to the U.S. Constitution, as applied to the audio recording of police officers, without the consent of the officers, when (a) the officers are performing their public duties, (b) the officers are in public places, (c) the
10

Case: 1:10-cv-05235 Document #: 1 Filed: 08/19/10 Page 11 of 12 PageID #:11
officers are speaking at a volume audible to the unassisted human ear, and (d) the manner of recording is otherwise lawful.
39. Among other things, this application of the Act is unlawful because: (a) The Free Speech Clause of the First Amendment protects the right
to gather, receive, or record the information at issue herein. (b) The Free Speech Clause and the Petition Clause of the First
Amendment protect the right to gather, receive, or record the information at issue herein for purposes of using that information to petition government for redress of grievances.
(c) The Free Speech Clause and the Free Press Clause of the First Amendment protect the right to gather, receive, or record the information at issue herein for purposes of disseminating and publishing that information to other people.
VI. PRAYER FOR RELIEF WHEREFORE, the ACLU respectfully requests the following relief: A. Entry of a declaratory judgment holding that the Act violates the First Amendment, as applied to the audio recording of police officers, without the consent of the officers, when (a) the officers are performing their public duties, (b) the officers are in public places, (c) the officers are speaking at a volume audible to the unassisted human ear, and (d) the manner of recording is otherwise lawful. B. Entry of a preliminary injunction, and then a permanent injunction, that enjoins defendant the Cook County State’s Attorney from prosecuting plaintiff the ACLU, and its officers, board members, employees, agents, and volunteers, under the Act for audio recording police officers, without the consent of the officers, when (a) the officers are performing their public duties, (b) the officers are in public places, (c) the
11

Case: 1:10-cv-05235 Document #: 1 Filed: 08/19/10 Page 12 of 12 PageID #:12

officers are speaking at a volume audible to the unassisted human ear, and (d) the manner

of recording is otherwise lawful.

C. Award the ACLU its reasonable attorneys’ fees, costs, and expenses

pursuant to 42 U.S.C. § 1988.

D. Award such other and further relief as this Court may deem just and

proper.

DATED: August 18, 2010

Respectfully submitted:

__/s/ Adam Schwartz____ Counsel for plaintiff

HARVEY GROSSMAN ADAM SCHWARTZ KAREN SHELEY Roger Baldwin Foundation of ACLU, Inc. 180 N. Michigan Ave. Suite 2300 Chicago, IL 60601 (312) 201-9740

RICHARD J. O’BRIEN LINDA R. FRIEDLIEB MATTHEW D. TAKSIN Sidley Austin LLP One South Dearborn Chicago, IL 60603 (312) 853-7000

12

 
 Case: 1:10-cv-05235 Document #: 36 Filed: 11/18/10 Page 1 of 16 PageID #:393

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

THE AMERICAN CIVIL LIBERTIES )

UNION OF ILLINOIS,

)

)

Plaintiff,

)

)

v.

)

)

ANITA ALVAREZ, Cook County State's )

Attorney, in her official capacity,

)

)

Defendant.

)

Case No. 1:10-cv-05235 Judge Suzanne B. Conlon Magistrate Judge Sydney I. Schenkier

THE ACLU'S MEMORANDUM IN SUPPORT OF ITS MOTION TO AMEND JUDGMENT, TO FILE AN AMENDED COMPLAINT,
AND FOR A PRELIMINARY INJUNCTION

Plaintiff the American Civil Liberties Union of Illinois ("ACLU") seeks declaratory and

injunctive relief against prosecution by defendant Anita Alvarez under the Illinois

Eavesdropping Act (the "Act"). On October 28, 2010, the Court dismissed the ACLU's

complaint, denied as moot the ACLU's motion for a preliminary injunction, and entered

judgment dismissing the case without prejudice. Dkt. Nos. 32-34. The Court's sole ground for

doing so was standing. Because the ACLU is able to cure the standing issues noted by the Court,

the ACLU moves under Rule 59(e) to amend its judgment of dismissal and order denying

preliminary injunctive relief so that the ACLU can move to amend its complaint under Rules

15(a)(2) and 21 and renew its motion for a preliminary injunction under Rule 65(a). The

proposed amended complaint (attached as Exhibit 1) more particularly describes the ACLU's

program of audio recording, supplements the complaint with new facts, and adds two individual

plaintiffs. In further support of both its Rule 59 motion and its request for injunctive relief, the

ACLU submits two new supporting declarations of ACLU employees (attached as Exhibits 2 and

1
CH1 5549964v.1

Case: 1:10-cv-05235 Document #: 36 Filed: 11/18/10 Page 2 of 16 PageID #:394
3). Based on these submissions, the ACLU also respectfully requests this Court to amend its earlier order of denial and to now grant a preliminary injunction.
BACKGROUND The ACLU alleges that it would immediately undertake a program of audio recording police officers, without the officers' consent, when (a) the officers are performing their public duties; (b) the officers are in public places; (c) the officers are speaking at a volume audible to the unassisted human ear; and (d) the manner of recording is otherwise lawful ("the ACLU Program") but for fear of prosecution under the Act. Dkt. No. 1 at ¶¶ 3, 16. The Act on its face, and consistent with the Illinois Legislature's intent, prohibits the ACLU's planned audio recording. The ACLU asserts that the Act therefore violates its First Amendment rights to gather, receive, record, and disseminate information on matters of public concern. On October 28, the Court issued a memorandum opinion and order granting Alvarez's motion to dismiss pursuant to Rule 12(b)(1), holding that "the ACLU has not satisfied its burden of showing that it has standing." Dkt. No. 33 at p. 4. The Court concluded that the ACLU's standing allegations were insufficient, noting: (1) "[c]reating" the ACLU program does not violate the Act (id. at p. 4); (2) Alvarez has not threatened to prosecute, or stated she would or would not prosecute, the ACLU if it implements its program (id. at pp. 4-5); (3) Alvarez has not prosecuted multiple individuals under the Act (id.); (4) there was no "time frame" for implementing the ACLU's program of audio recording police officers (id. at p. 5); (5) there was no allegation that an organization (as opposed to an individual) could or would be prosecuted under the Act (id.); and (6) there was no "imminent" threat of prosecution of the ACLU (id.). On October 28, the Court also denied as moot the ACLU's preliminary injunction motion, id. at p. 1, and issued a judgment dismissing the case without prejudice, Dkt. No. 34.
2
CH1 5549964v.1

Case: 1:10-cv-05235 Document #: 36 Filed: 11/18/10 Page 3 of 16 PageID #:395
The ACLU's proposed amended complaint addresses these standing concerns. It adds
two new plaintiffs: Colleen Connell, Executive Director of the ACLU, and Allison Carter, an
ACLU employee. See Exh. 1, at ¶¶8-9. Moreover, it adds the following updated and
particularized allegations regarding the ACLU program of audio recording on-duty police:
1) Connell will instruct Carter (and other ACLU employees) to audio record police, and that Carter will do so. ¶¶20, 21.
2) The ACLU has fully implemented the program, and is prepared immediately to actually audio record police. ¶¶19-43.
3) The ACLU was prepared to audio record police on June 10 and November 8, 2010, but refrained from doing so based on a reasonable fear of prosecution. ¶¶22, 44.
4) The ACLU intends to audio record police officers at public demonstrations, parades, and assemblies that are both planned and spontaneous. ¶¶17, 23.
5) But for the threat of prosecution under the Act, Connell would direct Carter to audio record police at an annual anti-war protest in spring 2011 in Chicago, and Carter would do so. ¶23.
6) Alvarez has never indicated she would not prosecute the ACLU or its employees for violations of the Act. ¶¶25(d), 46.
7) Alvarez is currently engaged in two different prosecutions of individuals under the Act for audio recording police. ¶¶25(c), 39.
8) At least seven other Illinois State's Attorneys have prosecuted at least nine other civilians under the Act for doing so. ¶¶25(e), 40.
9) The ACLU is a "person" under Illinois law that may be prosecuted under the Act. ¶25(g).
10) The Office of the Cook County State's Attorney repeatedly has prosecuted private corporations for criminal offenses. ¶25(h).
11) The ACLU (acting by and through its employees), Connell, and Carter have been and continue to be deterred from audio recording police by a reasonable fear of prosecution by Alvarez under the Act. ¶¶19-21, 25, 45.
3
CH1 5549964v.1

Case: 1:10-cv-05235 Document #: 36 Filed: 11/18/10 Page 4 of 16 PageID #:396
ARGUMENT I. This Case Should Be Reopened Under Rule 59.
Once a final judgment has been entered, a plaintiff may amend her complaint by timely moving to set aside the judgment under Rule 59(e).1 See Crestview Vill. Apartments v. U.S. Dept. of Hous. & Urban Dev., 383 F.3d 552, 558 (7th Cir. 2004); Sparrow v. Heller, 116 F.3d 204, 205 (7th Cir. 1997). "What the aggrieved party must do [ ] is to file a motion under Rule 59(e) seeking relief from the judgment, and, if it believes that the deficiencies the court has identified can be cured through an amended complaint, it must proffer that document to the court in support of its motion." Fannon v. Guidant Corp., 583 F.3d 995, 1002 (7th Cir. 2009). That is precisely what the ACLU is doing here.
Generally, a motion to amend judgment should be granted under Rule 59 where there is new evidence or an error of law. See Fannon, 583 F.3d at 1002. In the present procedural context, the "new evidence" standard is satisfied where, as here, the final judgment is entered simultaneously with the dismissal of an original complaint without prejudice and where a proposed amended complaint would cure the deficiency. See Foster v. DeLuca, 545 F.3d 582, 584 (7th Cir. 2008). "In evaluating the merits of the motion to vacate a judgment [under Rule 59(e)], the district court is required to consider the merits of the movant's request for leave to amend its complaint." Harris v. City of Auburn, 27 F.3d 1284, 1287 (7th Cir. 1994); see also Foster, 545 F.3d at 584 (holding that it was an abuse of discretion to deny motions under Rules 59(e) and 60(b) where "the district court made no determination regarding the sufficiency of the amended complaint"); Paganis v. Blonstein, 3 F.3d 1067, 1073 n.7 (7th Cir. 1993) ("[I]n general,
1 Alternatively, a party may so move under Rule 60(b). It should be noted that the ACLU found no case law holding that either Rule 59 or Rule 60 relief was a predicate to seeking amendment under Rule 15 where a final judgment had been entered but the dismissal of the case had been without prejudice. As a result, it would appear to be an open question as to whether the ACLU's right to amend the complaint under Rule 15 is conditioned on obtaining relief under Rule 59 or Rule 60.
4
CH1 5549964v.1

Case: 1:10-cv-05235 Document #: 36 Filed: 11/18/10 Page 5 of 16 PageID #:397
when a party simultaneously files both motions, the district court will have to examine the merits of a motion for leave to amend before it can decide whether or not to grant the party's Rule 59(e) or 60(b) motion."). As the Supreme Court reasoned in Warth v. Seldin, 422 U.S. 490, 501-502 (1975), in standing cases "it is within the trial court's power to allow or to require the plaintiff to supply, by amendment to the complaint or by affidavits, further particularized allegations of fact deemed supportive of plaintiff's standing."
Here, the ACLU is seeking to avail itself of the opportunity to supply further particularized allegations of fact to establish its standing. The Rule 59 motion should be granted because, as discussed infra in Part II, the proposed amended complaint recites new facts that address the standing issues noted in the Court's decision.2
Judicial efficiency also weighs in favor of granting the ACLU's Rule 59 motion and allowing its proposed amended complaint. To do otherwise would leave the ACLU, and/or Connell and Carter, filing a fresh lawsuit since this Court's dismissal was without prejudice. II. The Proposed Amendment Should Be Granted Under Rule 15 and Rule 21.
A. Amendments Should Be Liberally Granted. "This circuit has adopted a liberal policy respecting amendments to pleadings so that cases may be decided on their merits and not on the basis of technicalities." Green v. J.C. Penney Inc., 722 F.2d 330, 333 n.3 (7th Cir. 1983). Leave to amend is "especially advisable" after the dismissal of a first complaint. Barry Aviation Inc. v. Land O'Lakes Airport, 377 F.3d 682, 687 & n.2 (7th Cir. 2004) (collecting cases). "In the absence of any apparent or declared reason—such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure
2 The ACLU respectfully maintains that its initial complaint pled sufficient allegations to confer standing upon it to litigate its claim that the Act violates the First Amendment, see Dkt. No. 26, Parts II.B-C at pp. 22-28, but that the proposed amended complaint addresses the issues noted by the Court.
5
CH1 5549964v.1

Case: 1:10-cv-05235 Document #: 36 Filed: 11/18/10 Page 6 of 16 PageID #:398
deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.—the leave sought should, as the rules require, be 'freely given.'" Id. at 687, quoting Foman v. Davis, 371 U.S. 178, 182 (1962).
Since none of these defects are present here, leave to amend should be allowed. See Daugherity v. Traylor Bros, Inc., 970 F.2d 348, 351 (7th Cir. 1992). The ACLU has not unduly delayed moving to amend. It did so well within the 28-day period under Rule 59. There is no basis for concluding that the ACLU has acted in bad faith or with a dilatory motive. The ACLU is not guilty of repeatedly failing to cure deficiencies by amendments previously allowed since this is the ACLU's first motion to amend. Alvarez will suffer no undue prejudice as a result of amendment. Denial of the relief the ACLU seeks will result in the filing of a new action. As set forth below, amendment would not be futile. See infra Parts II.B and II.C.
With respect to Rule 21, "the court may at any time, on just terms, add or drop a party." Fed.R.Civ.P. 21. The standard for adding parties is "the same" under both Rule 15 and Rule 21. Moore's Federal Practice § 15.16[1] at p. 15-55 (3d ed. 2005).
B. The Amended Complaint Would Establish Pre-Enforcement Standing. The ACLU's proposed amended complaint is not futile because its new allegations address the standing issues noted by the Court as to the ACLU. In addition, the amended complaint establishes standing on behalf of two additional individual plaintiffs, Connell and Carter. The new allegations must be accepted as true. See Warth, 422 U.S. at 501 (in evaluating standing "both the trial and reviewing courts must accept as true all material allegations of the complaint, and must construe the complaint in favor of the complaining party."); Alliant Energy Corp. v. Bie, 277 F.3d 916, 920 (7th Cir. 2002) (reversing district court's decision not to permit second
6
CH1 5549964v.1

Case: 1:10-cv-05235 Document #: 36 Filed: 11/18/10 Page 7 of 16 PageID #:399
amended complaint: "It is easy to imagine facts consistent with this complaint and affidavits that will show plaintiffs' standing, and no more is required.").
1. The Law of Pre-Enforcement Standing. "To qualify for standing, a claimant must present an injury that is [1] concrete, particularized, and actual or imminent; [2] fairly traceable to the defendant's challenged behavior; and [3] likely to be redressed by a favorable ruling." Davis v. FEC, 128 S. Ct. 2759, 2768 (2008), citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). An organization has standing on its own behalf when it "seek[s] judicial relief from injury to itself and to vindicate whatever rights and immunities the association itself may enjoy." Warth, 422 U.S. at 511. See also Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 n.19 (1982) ("organizations are entitled to sue on their own behalf for injuries they have sustained"); Pennsylvania Chiropractic Ass'n v. Blue Cross Blue Shield Ass'n, No. 09 C 5619, 2010 WL 1979569, at *19 (N.D. Ill. May 17, 2010) ("An association may satisfy these elements [for constitutional standing] by asserting claims that arise from injuries it sustained itself.").3 An organization suffers an injury-in-fact giving rise to standing when a law interferes with the organization's protected First Amendment activity. Am. Booksellers Ass'n. v. Hudnut ("Hudnut"), 771 F.2d 323, 326-27 (7th Cir. 1985); Long Beach Area Peace Network v. City of Long Beach, 574 F.3d 1011, 1019 (9th Cir. 2009), cert. denied, 130 S. Ct. 1569 (2010); NYCLU v. NYC Transit Auth., 675 F. Supp. 2d 411, 425-27 (S.D.N.Y. July 16, 2009); Stauber v. City of New York, 2004 WL 1593870, at **12-17 (S.D.N.Y. 2004). For example, an organization has standing to challenge a law that, as here, violates its First Amendment right to monitor and gather 3 The ACLU does not plead derivative representational standing for its members. Rather, it pleads direct organizational standing for itself. Cf. Summers v. Earth Island Inst., 129 S. Ct. 1142, 1149 (2009) (addressing representational standing where "[t]he regulations under challenge [in that case] neither require nor forbid any action on the part of" the plaintiff organization).
7
CH1 5549964v.1

Case: 1:10-cv-05235 Document #: 36 Filed: 11/18/10 Page 8 of 16 PageID #:400
information about government activity. NYCLU, 675 F. Supp. 2d at 425-27 (granting a preliminary injunction providing access to observe certain government hearings). See also FEC v. Akins, 524 U.S. 11, 20-21 (1998) (holding that "inability to obtain information" is an injury that provides standing).
An organization has standing to bring a pre-enforcement First Amendment challenge to a law where, as here, the organization "has alleged an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by [the] statute, and there exists a credible threat of prosecution." Babbitt v. UFW, 442 U.S. 289, 298 (1979). This rule ensures that a party need not "undergo a criminal prosecution as the sole means of seeking relief." Id. (quoting Doe v. Bolton, 410 U.S. 179, 188 (1973)). See also Virginia v. Am. Booksellers Ass'n. ("Am. Booksellers Ass'n."), 484 U.S. 383, 393 (1988) ("[T]he alleged danger of this statute is, in large measure, one of self-censorship; a harm that can be realized even without an actual prosecution."). Many courts have held that a wide variety of organizations have such preenforcement standing. See, e.g., Holder v. Humanitarian Law Project, 130 S. Ct. 2705, 2717 (2010); ACLU of Nevada v. Heller, 378 F.3d 979, 983-85 (9th Cir. 2004); New Hampshire Right to Life PAC v. Gardner ("NH-RTL-PAC"), 99 F.3d 8, 13-15 (1st Cir. 1996); S.O.C., Inc. v. County of Clark, 481 F. Supp. 2d 1122, 1125-29 (D. Nev. 2007); ACLU v. Reno, 31 F. Supp. 2d 473, 47981 (E.D. Pa. 1999); ACLU v. Johnson, 4 F. Supp. 2d 1024, 1026-28 (D. N.M. 1998).
The "credible threat of prosecution" standard, Babbitt, 442 U.S. at 98, is "quite forgiving." NH-RTL-PAC, 99 F.3d at 14; Reno, 31 F. Supp. 2d at 479. The Seventh Circuit has explained:
Injury need not be certain. Any pre-enforcement suit entails some element of chance: perhaps the plaintiff will desist before the law is applied, perhaps the law will be repealed, or perhaps the law won't be enforced as written. But preenforcement challenges nonetheless are within Article III.
8
CH1 5549964v.1

Case: 1:10-cv-05235 Document #: 36 Filed: 11/18/10 Page 9 of 16 PageID #:401
Brandt v. Vill. of Winnetka, 612 F.3d 647, 649 (7th Cir. 2010). Plaintiff need not show "an "imminent criminal prosecution," in the "temporal" sense. 520 South Michigan Ave. Assocs. v. Devine, 433 F.3d 961, 962-63 (7th Cir. 2006). Nor need plaintiff show it was "threatened with prosecution." Doe v. Bolton, 410 U.S. 179, 188 (1973). Accord Majors v. Abell, 317 F.3d 719, 721 (7th Cir. 2003) ("A plaintiff who mounts a pre-enforcement challenge to a statute that he claims violates his freedom of speech need not show that the authorities have threatened to prosecute him . . . ; the threat is latent in the existence of the statute."). Further, plaintiff need not show that anyone has ever been prosecuted. Babbitt, 442 U.S. at 302; Doe, 410 U.S. at 188; Kucharek v. Hanaway, 902 F.2d 513, 516 (7th Cir. 1990). See also Hudnut, 771 F.2d at 327 ("A challenge may be ripe . . . even when the statute is not yet effective.").
Rather, it will usually suffice for the plaintiff to show that the statute is not "moribund." Doe, 410 U.S. at 188; NH-RTL-PAC, 99 F.3d at 15; Reno, 31 F. Supp. 2d at 480. See also Bauer v. Shepard, 620 F.3d 704, 708 (7th Cir. 2010) ("the existence of a statute implies a threat to prosecute, so pre-enforcement challenges are proper"). Cf. Poe v. Ullman, 367 U.S. 497 (1961) (no standing to challenge a statute enacted in 1879 and only enforced once in the ensuing 82 years). Further, standing usually exists when the relevant prosecutor "has not disavowed any intention of invoking the criminal penalty." Babbitt, 442 U.S. at 302. See also Am. Booksellers Ass'n., 484 U.S. at 393 (same); Commodity Trend Serv., Inc. v. CFTC, 149 F.3d 679, 687 (7th Cir. 1998) ("a threat of prosecution is credible when a plaintiff's intended conduct runs afoul of a criminal statute and the Government fails to indicate affirmatively that it will not enforce the statute") (emphasis in original); NRA v. City of Evanston, 2009 WL 1139130, at *3 (N.D. Ill. Apr. 27, 2009) (Aspen, J.) (holding that a prosecutor's statement "during litigation that it might never prosecute plaintiff or that it does not intend to prosecute plaintiff" (quoting Horina v. City of
9
CH1 5549964v.1

Case: 1:10-cv-05235 Document #: 36 Filed: 11/18/10 Page 10 of 16 PageID #:402
Granite City, No. 05 C 0079, 2005 WL 2085119, at *4 (S.D. Ill. Aug. 29, 2005) does not comprise a "disavowal" of prosecution that bars pre-enforcement standing).
Courts repeatedly have held that the ACLU has organizational standing for itself to bring First Amendment challenges to laws that burden its First Amendment rights. See, e.g., Heller, 378 F.3d at 983-85; S.O.C., Inc., 481 F. Supp. 2d at 1125-29; Stauber, 2004 WL 1593870, at **12-17; Reno, 31 F. Supp. 2d at 479-81; Johnson, 4 F. Supp. 2d at 1026-28. See also ACLU v. GSA, 235 F. Supp. 2d 816 (N.D. Ill. 2002) (Castillo, J.) (approving an injunctive class settlement).
2. The pre-enforcement standing of the ACLU. a) ACLU's Program is fully operational. The amended complaint would add allegations that demonstrate that the ACLU'S Program is fully operational: Connell will instruct Carter to audio record police, and Carter will do so (¶¶8, 9, 20, 21); the ACLU has fully implemented the program, and is prepared immediately to actually audio record police, but refrains from doing so due to a reasonable fear of prosecution(¶¶3,19); the ACLU twice refrained from audio recording police in the last six months, due to its reasonable fear of prosecution (¶¶22, 44); the ACLU intends to audio record police officers at expressive events that are both planned and spontaneous (¶¶17, 23); and, but for the threat of prosecution under the Act, Connell would direct Carter to audio record police at events that occur spontaneously and at a particular protest in spring 2011, and Carter would do so (¶23). Thus, the amended complaint addresses the Court's concern that the ACLU program had only been created, but was not ready to be fully implemented, and that the ACLU had not pled the existence of an employee who was prepared to actually record police officers as part of the program. Dkt. No. 33 at pp. 4-5.
10
CH1 5549964v.1

Case: 1:10-cv-05235 Document #: 36 Filed: 11/18/10 Page 11 of 16 PageID #:403
b) The ACLU Program is covered by the Act. Here, the Act on its face, and as intended by the Illinois Legislature, plainly applies to the ACLU program of certain non-consensual audio recording of on-duty police. See 720 ILCS 5/141(d) & 2(a)(1)(A). Alvarez has expressly acknowledged this. See Dkt. No. 19, at p. 7 ("Plaintiff is precluded from audio recording any conversations without consent of all parties to such conversation, including encounters between law enforcement and citizens.").4 c) ACLU is subject to prosecution under the Act. Likewise, as a matter of law, the ACLU itself plainly is subject to prosecution under the Act for any audio recording by ACLU employees authorized and directed by the ACLU's top management. The Act criminally prohibits certain audio recording by a "person." 720 ILCS 5/14-2. For purposes of the Illinois criminal statutes, a "person" includes a "private corporation," 720 ILCS 5/2-15, and a corporation may be prosecuted for crimes authorized by its top managerial agents, id. at 5/5-4(a)(2). The amended complaint alleges that the ACLU is a legal corporation. ¶7. Alvarez and predecessor Cook County State's Attorneys repeatedly have prosecuted corporations for violations of various criminal statutes based on actions by top management. See, e.g., People v. Universal Public Transp., Inc., 401 Ill. App. 3d 179, 192 (1st Dist. 2010) (corporation convicted for fraud); People v. Bohne, 312 Ill. App. 3d 705, 706 (1st Dist. 2000) (corporation indicted for tax impropriety); People v. O'Neil, 194 Ill. App. 3d 79, 88-89 (1st Dist. 1990) (corporation indicted for involuntary manslaughter). Thus, the amended complaint would allege that the ACLU may be prosecuted as a "person" under the Act (¶25(g)), and that
4 Alvarez also argued that the ACLU program fell within the Act's exemption for recording by one conversation participant who reasonably suspects that he is about to be the victim of a crime committed by another conversation participant. See Dkt. No. 19, at pp. 5-6; 720 ILCS 5/14-3(i). In fact, the ACLU program does not fall within this exemption. Rather, the ACLU program extends to police conduct that is not reasonably suspected to be criminal, and to recording by persons who are not potential crime victims.
11
CH1 5549964v.1

Case: 1:10-cv-05235 Document #: 36 Filed: 11/18/10 Page 12 of 16 PageID #:404
Alvarez has prosecuted organizations as persons (¶25(h)). This addresses the Court's concern that the ACLU had not alleged than an organization "could" be prosecuted under the Act. Dkt. No. 33 at p. 5.
d) ACLU has a reasonable fear of prosecution The amended complaint shows that ACLU has a reasonable fear of prosecution. Alvarez has never indicated that she would not prosecute the ACLU under the Act (¶25(d)) and has stated that ACLU is precluded under the Act from audio recording law enforcement officers(¶25(d)). If it were Alvarez's position that the ACLU would not be prosecuted under the Act, or that the ACLU program did not violate the Act, Alvarez would have said so by now, instead of vigorously litigating her right to prosecute the ACLU under the Act. This is powerful evidence of the reasonableness of the ACLU's fear of prosecution. See Am. Booksellers Ass'n., 484 U.S. at 393; Babbitt, 442 U.S. at 302; Commodity Trend Service, Inc., 149 F.3d at 687. Further, the amended complaint would allege additional relevant prosecutions under the Act. Most importantly, it would allege that Alvarez is currently prosecuting two different cases under the Act for allegedly recording on-duty police. ¶¶25(c), 39. The original complaint alleged only one such prosecution. Alvarez filed charges in the other case on August 31, 2010 – 12 days after the ACLU filed its original complaint. Further, the amended complaint alleges that in the past six years, at least seven other Illinois State's Attorneys have prosecuted at least nine other civilians under the Act for audio recording on-duty police. ¶¶25(e)), 40. At the time it filed its original complaint, the ACLU was only aware of five civilians prosecuted by three State's Attorneys. Finally, the amended complaint alleges that one of these prosecutions involved a program, like the one here, of audio recording on-duty police to increase police accountability. ¶¶25(e), 41. Thus, the Act plainly is not "moribund." Doe, 410 U.S. at 188; NH-RTL-PAC, 99
12
CH1 5549964v.1

Case: 1:10-cv-05235 Document #: 36 Filed: 11/18/10 Page 13 of 16 PageID #:405
F.3d at 15; Reno, 31 F. Supp. 2d at 480. See also Holder, 130 S. Ct. at 2717 (holding that organizations had standing to challenge certain statutory provisions that had led only to "several" prosecutions). Accordingly, the ACLU, Connell, and Carter reasonably fear prosecution.
3. The Pre-Enforcement Standing of Connell and Carter. As set forth immediately above, the amended complaint would adequately allege the ACLU's own injury and standing. In the event there is any doubt on this point, the amended complaint also would add as plaintiffs Connell and Carter, two individual ACLU employees who have injury and standing. Further, the new allegations regarding Connell and Carter buttress the injury and standing of the ACLU. For these additional reasons, amendment would not be futile. Putative plaintiff Carter, an ACLU employee, clearly would be subject to prosecution if she audio recorded on-duty police as part of the ACLU program. The amended complaint thus would add allegations that Carter is prepared to and would record police when authorized and directed to do so by Connell (¶21); and that Carter has not done so due to her reasonable fear, and Connell's, of prosecution of Carter by Alvarez under the Act (¶¶20, 21, 25, 45). Putative plaintiff Connell, the ACLU's Executive Director, clearly would be subject to prosecution if she authorized and directed Carter to audio record on-duty police as part of the ACLU program, and Carter did so. As a matter of law, a person may be criminally liable for the conduct of another when she is "legally accountable" for the Act. 720 ILCS § 5/5-1. That occurs when "either before or during the commission of an offense, and with the intent to promote or facilitate that commission, he or she solicits, aids, abets, agrees, or attempts to aid that other person in the planning or commission of the offense." Id. at § 5/5-2(c). See also People v. Moss, 205 Ill. 2d 139, 163-64 (2001) ("the only additional fact necessary to establish accountability beyond the act of solicitation is the fact that the principal crimes had been committed").
13
CH1 5549964v.1

Case: 1:10-cv-05235 Document #: 36 Filed: 11/18/10 Page 14 of 16 PageID #:406
Accordingly, the amended complaint would add the allegation that Connell herself may be prosecuted under the Act for directing another ACLU employee to engage in audio recording of police in public (¶¶20, 23); that she reasonably fears such prosecution (¶20); and that she would authorize and direct such audio recording, but for her fear of prosecution of the ACLU, Carter, and herself (¶23).
C. The Amended Complaint would not be subject to Younger Abstention. Should the Court reach Alvarez's Younger arguments in its evaluation of futility, the Court should conclude that the Younger abstention doctrine is inapplicable here. Alvarez relies upon 520 S. Michigan Avenue Associates, Ltd. v. Devine, 433 F.3d 961, 963 (7th Cir. 2006) for the proposition that abstention may be appropriate if a state prosecution is imminent. That decision, however, is noteworthy for the fact that standing was found precisely in the situation here— namely where an organization, in that case a hotel, sought pre-enforcement review of a state statute based on the fact that the statute was forcing the hotel to change its behavior in the present. Id. at 962-63. The court held that the organization had standing even though its prosecution wasn't imminent in the temporal sense. Id. Then, the court observed in an aside: "If a criminal prosecution of the Hotel really were imminent, then a federal court might well abstain on comity grounds—for the prosecution would offer the Hotel an opportunity to present its legal arguments, and states are entitled to insist that their criminal courts resolve the entire dispute." Id. at 963. That dicta however, as relied upon by Alvarez, is contrary to controlling Supreme Court and Seventh Circuit jurisprudence, which provides that "[i]n the absence of [a state] proceeding … a plaintiff may challenge the constitutionality of the state statute in federal court." Doran v. Salem Inn, Inc., 422 U.S. 922, 930 (1975); see also Forty One News, Inc. v. County of Lake, 491 F.3d 662, 665 (7th Cir. 2007) ("Younger abstention is appropriate only when there is an action in
14
CH1 5549964v.1

Case: 1:10-cv-05235 Document #: 36 Filed: 11/18/10 Page 15 of 16 PageID #:407
state court against the federal plaintiff and the state is seeking to enforce the contested law in that proceeding."); Steffel v. Thompson, 415 U.S. 452, 472 (1974) ("Requiring the federal courts totally to step aside when no state criminal prosecution is pending against the federal plaintiff would turn federalism on its head."); Allen v. Allen, 48 F.3d 259, 261 (7th Cir. 1995) ("[T]hese abstention doctrines extend only to parties to ongoing state court litigation while specifically leaving non-parties free to pursue their claims."); Hoover v. Wagner, 47 F.3d 845, 848 (7th Cir. 1995). III. This Court Should Amend its Denial of a Preliminary Injunction.
The ACLU moves the Court to amend its denial of the preliminary injunction motion as moot, and the ACLU renews its motion for a preliminary injunction. The ACLU seeks this relief on the basis of both its original and new submissions, including the attached declarations of Connell and Carter. See Dkt. Nos. 18, 26. See also Dkt. No. 27 (the Chicago Police Department's policy of August 2010 regarding in-car audio/video recording), at Part II (describing the value of such recording), and Part IV.A (stating that police officers have "no expectation of privacy" related to such recording). As set forth in the ACLU's proposed amended complaint, such relief would be extended to the ACLU, Connell, Carter, and the ACLU's other employees. Cf. Dkt. No. 1 (the ACLU's original complaint), at p. 11 (seeking relief on behalf of a broader set of persons). If Connell and Carter are allowed to join this suit, then they join in this motion for a preliminary injunction.
CONCLUSION For the foregoing reasons, the ACLU respectfully requests that the Court grant its motions to amend the judgment and order denying preliminary relief under Rule 59(e), to amend the complaint under Rules 15(a)(2) and 21, and for a preliminary injunction under Rule 65(a).
15
CH1 5549964v.1

Case: 1:10-cv-05235 Document #: 36 Filed: 11/18/10 Page 16 of 16 PageID #:408

DATED: November 18, 2010
Richard J. O'Brien Linda R. Friedlieb Matthew D. Taksin Sidley Austin LLP One South Dearborn Street Chicago, IL 60603 (312) 853-7000

Respectfully submitted,
THE AMERICAN CIVIL LIBERTIES UNION OF ILLINOIS
By: s/ Richard J. O'Brien One of Its Attorneys
Harvey Grossman Adam Schwartz Karen Sheley Roger Baldwin Foundation of ACLU, Inc. 180 N. Michigan Ave., Suite 2300 Chicago, IL 60601 (312) 201-9740

16
CH1 5549964v.1

Case: 1:10-cv-05235 Document #: 36-1 Filed: 11/18/10 Page 1 of 19 PageID #:409
EXHIBIT 1

Case: 1:10-cv-05235 Document #: 36-1 Filed: 11/18/10 Page 2 of 19 PageID #:410

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

THE AMERICAN CIVIL LIBERTIES )

UNION OF ILLINOIS, COLLEEN

)

CONNELL, AND ALLISON CARTER, )

)

Plaintiffs,

)

)

v.

)

)

ANITA ALVAREZ, Cook County State’s )

Attorney, in her official capacity,

)

)

Defendant.

)

Case No. 10 CV 5325
Judge Suzanne B. Conlon
Magistrate Judge Sidney I. Schenkier

AMENDED COMPLAINT

Plaintiffs the American Civil Liberties Union of Illinois (“the ACLU”), Colleen

Connell, and Allison Carter, by their attorneys, as their Amended Complaint against

defendant Anita Alvarez, in her official capacity as the Cook County State’s Attorney,

state as follows:

I. NATURE OF THE CASE 1. This is a civil rights action challenging the constitutionality of the Illinois

Eavesdropping Act, 720 ILCS 5/14 (“the Act”), as applied to the audio recording of

police officers, without the consent of the officers, when (a) the officers are performing

their public duties, (b) the officers are in public places, (c) the officers are speaking at a

volume audible to the unassisted human ear, and (d) the manner of recording is otherwise

lawful. This application of the Act violates the First Amendment to the U.S.

Constitution. The plaintiffs seek declaratory and injunctive relief pursuant to 42 U.S.C. §

1983 and 28 U.S.C. § 2201 et seq.

1

Case: 1:10-cv-05235 Document #: 36-1 Filed: 11/18/10 Page 3 of 19 PageID #:411
2. For nearly a century, the ACLU has sought to protect and to expand the civil liberties and civil rights of all persons in Illinois. It has engaged in this constitutionally protected pursuit through public education, including publication through a variety of media, and advocacy before courts, legislatures, and administrative agencies. The corollary right to gather, receive, record, and disseminate information on matters of public importance relating to civil liberties and civil rights is integral to, and a necessary component of, these other protected activities.
3. In the exercise of these rights, the ACLU (acting through its employees); Connell (as the ACLU’s Executive Director and through her direct supervision of ACLU employees); and Carter (as the ACLU’s Senior Field Manager and in performing her employment duties), have incorporated the use of common audio/video recording devices into the ACLU’s ongoing monitoring of police in public places. Specifically, but for the Act, the ACLU, Connell, and Carter are presently prepared and would immediately audio record police officers, without the consent of the officers, when (a) the officers are performing their public duties, (b) the officers are in public places, (c) the officers are speaking at a volume audible to the unassisted human ear, and (d) the manner of recording is otherwise lawful (hereinafter “the ACLU program”). The ACLU, Connell, and Carter will carry out this ACLU program in Cook County, Illinois. The ACLU, Connell, and Carter will disseminate such recordings when appropriate to the public, and also use these recordings to petition the government for redress of grievances through its advocacy program.
4. The Act makes audio recording police officers in these circumstances a felony. Due to a reasonable fear of arrest and prosecution under the Act by defendant,
2

Case: 1:10-cv-05235 Document #: 36-1 Filed: 11/18/10 Page 4 of 19 PageID #:412
the ACLU, Connell, and Carter are presently refraining from engaging in audio recording of police in public pursuant to the ACLU program. This suit seeks a declaration that such conduct is constitutionally protected, and an injunction against enforcement of the Act as applied to the ACLU program.
II. JURISDICTION AND VENUE 5. This Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343(3) and (4). 6. Venue is proper in this judicial district pursuant to 28 U.S.C. § 1391(b).
III. THE PARTIES 7. The ACLU is a non-profit, non-partisan, statewide organization with more than 20,000 members and supporters dedicated to protecting and expanding the civil rights and civil liberties guaranteed by the Constitutions and civil rights laws of the United States and the State of Illinois. The ACLU is a not-for-profit corporation incorporated under the laws of the State of Illinois. In all matters relevant to this Amended Complaint, the ACLU acts by and through its staff of approximately 25 salaried employees who are under the direction of the ACLU’s Executive Director, Connell. 8. Connell is the ACLU’s Executive Director. In this capacity, she directs employees of the ACLU in creating and disseminating communications which further the ACLU’s goals of protecting and expanding civil liberties and civil rights. In this capacity, but for the Act, Connell immediately would direct ACLU employees, including Carter, to audio record public police activity as part of carrying out the ACLU program.
3

Case: 1:10-cv-05235 Document #: 36-1 Filed: 11/18/10 Page 5 of 19 PageID #:413
9. Carter is the ACLU’s Senior Field Manager. In this capacity, she has been selected by Connell to perform the actual audio/video recording of police as part of the ACLU program.
10. Alvarez is the Cook County State’s Attorney. In this capacity, she is charged with the enforcement of the criminal laws of the State of Illinois, including the Act. She is sued solely in her official capacity for purposes of declaratory and injunctive relief.
IV. FACTS A. The right to gather, receive, record, and disseminate information
11. The right to gather, receive, record, and disseminate information is grounded in the Free Speech Clause of the First Amendment. This right is further grounded in:
(a) the Petition Clause of the First Amendment, if the purpose of gathering, receiving, or recording the information is to use it to petition government for redress of grievances; and
(b) the Free Press Clause of the First Amendment, if the purpose of gathering, receiving, or recording the information is to publish and disseminate it to other people.
12. This First Amendment right to gather, receive, record, and disseminate information includes the right to audio record police officers in the circumstances described herein. B. The ACLU’s exercise of its right to gather, receive, record, and disseminate
information 13. In pursuing its objectives of protecting and expanding civil rights and civil
4

Case: 1:10-cv-05235 Document #: 36-1 Filed: 11/18/10 Page 6 of 19 PageID #:414
liberties, the ACLU regularly gathers, receives, and records information from numerous sources, including by observing events in public places.
14. After gathering, receiving, and recording information, the ACLU regularly publishes and disseminates that information to the general public, and regularly presents that information to government bodies as part of the ACLU’s efforts to petition the government for redress of grievances.
15. The ACLU regularly engages in its own expressive activity in public places, and regularly records its own expressive activity at these events. C. The ACLU program
16. The ACLU presently, as it has in the past, monitors and observes police conduct in public places. In doing so, the ACLU seeks not only to observe and record the manner in which government employees perform their duties, but also to improve police practices, and to deter and detect any unlawful police interference with constitutional liberties. For example, the ACLU often monitors and observes police conduct at expressive activity in public places, including when the ACLU is engaged in its own expressive activity.
17. The ACLU has monitored, and will monitor, police at public demonstrations, protests, parades, assemblies, speeches, leafleting, and similar occasions and events. Such expressive events are sometimes planned, and on other occasions are spontaneous. The ACLU is presently able to, and intends to, monitor police activity both at planned expressive events and at spontaneous expressive events.
5

Case: 1:10-cv-05235 Document #: 36-1 Filed: 11/18/10 Page 7 of 19 PageID #:415
18. The ACLU often gathers, receives, and records information about police practices, and then publishes and disseminates that information to the general public, and uses that information to petition government for redress of grievances.
19. But for their reasonable fear of prosecution by Alvrarez under the Act (see infra ¶ 25), the ACLU, Connell, and Carter would immediately commence the aforementioned program of audio recording police officers in public, and use and disseminate such recordings. This program includes recording police conduct at expressive activity in public places, including when the ACLU is engaged in its own expressive activity.
20. Connell, the ACLU’s Executive Director, has approved the expanded program of audio recording police as described above in paragraph 3. Connell joins with the ACLU in seeking to expand and protect civil liberties by implementing the ACLU program of monitoring police by audio recording police in public places to advance police accountability. But for the Act, Connell would immediately authorize and direct Carter (and other ACLU employees) to engage in such audio recording, but for her reasonable fear of imminent prosecution by Alvarez under the Act of Carter (the ACLU employee who made the recording), of Connell (the ACLU Executive Director who authorized and directed the recording), and of the ACLU itself. See infra ¶ 25.
21. Carter, the ACLU Senior Field Manager, will audio record police pursuant to the ACLU program described above in paragraph 3 when authorized and directed to do so by Connell. Carter joins with the ACLU and Connell in seeking to expand and protect civil liberties by implementing the ACLU program of monitoring police by audio recording police in public places to advance police accountability. Carter has a
6

Case: 1:10-cv-05235 Document #: 36-1 Filed: 11/18/10 Page 8 of 19 PageID #:416
reasonable fear of prosecution under the Act, should she audio record police officers as prescribed by the ACLU program. See infra ¶ 25.
22. On two recent occasions, the ACLU would have audio recorded police officers performing their public duties in public places, but for the reasonable threat of prosecution by Alvarez under the Act. See infra ¶ 25. On both occasions, ACLU employees did monitor police, but without audio recording. Specifically:
(a) On June 10, 2010, an ACLU employee monitored a Chicago Police Department program of suspicionless container searches on Chicago’s lakefront; and
(b) On November 8, 2010, Carter monitored a protest held in Chicago at the James R. Thompson Center concerning the killing of Iraqi Christians.
23. But for the reasonable threat of prosecution by Alvarez under the Act (see infra ¶ 25), Connell would authorize and direct Carter to audio record police, and Carter would audio record police, at planned and spontaneous events in Cook County in the future, including but not limited to the annual protest in spring 2011 in downtown Chicago in opposition to U.S. military policy in Iraq and Afghanistan.
24. The Act, by preventing the ACLU from implementing the ACLU program, directly and substantially prevents the ACLU from engaging in its important organizational activity of monitoring police conduct, and directly and substantially frustrates the ACLU’s important organizational goal of advancing police accountability, and thereby protecting civil liberties.
7

Case: 1:10-cv-05235 Document #: 36-1 Filed: 11/18/10 Page 9 of 19 PageID #:417
D. The ACLU’s reasonable fear of prosecution 25. For the following reasons, the ACLU, Connell, and Carter have a
reasonable fear that if they implement the ACLU program, Alvarez will prosecute them pursuant to the Act:
(a) The Act on its face prohibits non-consensual audio recording of non-private conversations. See infra ¶ 32.
(b) The Illinois Legislature intended the Act to prohibit audio recording of non-private conversations with on-duty police. See infra ¶ 33.
(c) Alvarez is now prosecuting two cases under the Act in which civilians allegedly audio recorded on-duty police. See infra ¶ 39.
(d) In the original Complaint in this suit, the ACLU described the ACLU program of audio recording police as set forth above in paragraph 3. Alvarez has not in this litigation, or otherwise, indicated that the ACLU program does not violate the Act, or that Alvarez would not prosecute the ACLU or its employees for carrying out the ACLU program by audio recording police officers performing their duties in public. To the contrary, Alvarez stated in her motion to dismiss: “Plaintiff is precluded from audio recording any conversations without consent of all parties to such conversation, including encounters between law enforcement and citizens.” Dkt. No. 19, at p. 7.
(e) In the last six years, at least seven other State’s Attorneys have prosecuted at least nine other civilians under the Act for audio recording on-duty police, including one prosecution of civilians undertaking a program of monitoring on-duty police to promote police accountability. See infra ¶ 40.
8

Case: 1:10-cv-05235 Document #: 36-1 Filed: 11/18/10 Page 10 of 19 PageID #:418
(f) The Illinois criminal statutes impose criminal liability on persons who solicit criminal activity by other persons. See, e.g., 720 ILCS 5/5-1 (providing that for purposes of the Illinois criminal statutes, a person is criminally liable when they are “legally accountable” for the criminal misconduct of another); 720 ILCS 5/5-2(c) (providing that a person has such liability if they “solicit” criminal acts by another person). Thus, if Connell authorizes and directs Carter to audio record police, and Carter does so, then Alvarez can prosecute Connell, as well as Carter.
(g) The Illinois criminal statutes impose criminal liability on private corporations that commit criminal activity directed by their top officials. See, e.g., 720 ILCS 5/14-2 (prohibiting certain audio recording by a “person”); 720 ILCS 5/2-15 (providing that for purposes of the Illinois criminal statutes, a “person” includes a “private corporation”); 720 ILCS 5/5-4 (a)(2) (providing that for purposes of the Illinois criminal statutes, a corporation may be prosecuted for crimes authorized by high managerial agents). Thus, if Connell (the ACLU’s Executive Director) authorizes and directs Carter to audio record police, and Carter does so, then Alvarez can prosecute the ACLU (a private corporation), as well as Carter and Connell.
(h) The Office of the Cook County State’s Attorney repeatedly has prosecuted private corporations for criminal offenses. See, e.g., People v. Universal Public Transp., Inc., 401 Ill. App. 3d 179, 192 (1st Dist. 2010) (corporation convicted for fraud); People v. Bohne, 312 Ill. App. 3d 705, 706 (1st Dist. 2000) (corporation indicted for tax impropriety); People v. O’Neil, 194 Ill. App. 3d 79, 88-89 (1st Dist. 1990) (corporation indicted for involuntary manslaughter).
9

Case: 1:10-cv-05235 Document #: 36-1 Filed: 11/18/10 Page 11 of 19 PageID #:419
E. A benefit of audio recording the police 26. While most police officers perform their duties in a lawful manner, some
police officers abuse their authority. 27. In many cases, the only evidence of what happened during an encounter
between police officers and civilians – including whether police officers and/or civilians behaved lawfully – will be the conflicting testimony of police officers and civilians.
28. In many cases, audio recordings of police-civilian encounters will provide critical evidence that is not available from testimony, photographs, or silent videos.
29. Indeed, on many occasions in the last decade, audio/video recordings made by civilians of police-civilian encounters have helped to resolve testimonial disputes about alleged police misconduct. Sometimes these audio/video recordings have tended to disprove allegations of police misconduct, and sometimes they have tended to prove allegations of police misconduct.
30. Federal, state, and local law enforcement agencies have deployed tens of thousands of audio/video recording devices for purposes of documenting certain interactions between police officers and civilians. For example, many police squad cars are equipped with audio/video recording devices that document traffic stops. One law enforcement purpose of these audio/video recording devices is to deter and detect police misconduct, and to disprove false accusations of police misconduct.
31. Indeed, as more fully explained below, see infra ¶¶ 35-36, the Illinois Eavesdropping Act exempts audio/video recordings made by police of conversations between police and civilians during traffic stops, in order to protect both the civilians and the officers from false testimony about these conversations. There is no constitutionally
10

Case: 1:10-cv-05235 Document #: 36-1 Filed: 11/18/10 Page 12 of 19 PageID #:420
valid basis for allowing police to make such audio recordings, while criminalizing the conduct of civilians who do so. F. The Illinois Eavesdropping Act
32. The Illinois Eavesdropping Act criminalizes the use of a machine to record certain conversations – even if the conversations are not private. Specifically:
(a) The Act provides that “[a] person commits eavesdropping when he . . . [k]nowingly and intentionally uses an eavesdropping device for the purpose of hearing or recording all or any part of any conversation . . . unless he does so . . . with the consent of all of the parties to such conversation . . . .” 720 ILCS 5/14-2(a)(1)(A).
(b) The Act defines “conversation” to mean “any oral communication between 2 or more persons regardless of whether one or more of the parties intended their communication to be of a private nature under circumstances justifying that expectation.” 720 ILCS 5/14-1(d) (emphasis added).
(c) The Act defines “eavesdropping device” to include “any device capable of being used to hear or record oral conversation . . . .” 720 ILCS 5/14-1(a).
(d) The Act provides that a first offense of eavesdropping is a Class 4 felony, 720 ILCS 5/14-4(a), which is punishable by a sentence of imprisonment of one to three years, 730 ILCS 5/5-4.5-45.
33. The legislative purpose of extending the Act to non-private conversations was to criminalize civilian audio recordings of police officers performing their public duties in public places. Specifically:
(a) In 1986, in People v. Beardsley, 115 Ill. 2d 47 (Ill. 1986), the Illinois Supreme Court held that an element of the criminal offense created by the then-
11

Case: 1:10-cv-05235 Document #: 36-1 Filed: 11/18/10 Page 13 of 19 PageID #:421
existing version of the Act was “circumstances which entitle [the parties to a conversation] to believe that the conversation is private and cannot be heard by others who are acting in a lawful manner.” 115 Ill. 2d at 53 (emphasis added). The Beardsley case involved a motorist who audio recorded a police officer during a traffic stop. Id. at 48-49. The Court held that this motorist did not violate the Act, because the conversation was not private.
(b) Eight years later, in 1994, Illinois amended the Act with Public Act 88-677, also known as House Bill 356. This new law adopted the current definition of “conversation,” to wit: “any oral communication between 2 or more persons regardless of whether one or more of the parties intended their communication to be of a private nature under circumstances justifying that expectation.”
(c) On May 19, 1994, during Senate floor debate regarding this bill, the Senate sponsor stated that the bill had earlier passed out of that chamber “to reverse the Beardsley eavesdropping case . . . .” See Tr. at p. 42.
34. In this regard, the current Illinois Eavesdropping Act is abnormal. The federal ban on audio recording certain conversations, and the vast majority of such state bans, extend only to private conversations – as the Illinois Eavesdropping Act did, before it was amended in 1994 for the purpose of reversing the Beardsley decision. Only a handful of states have extended their eavesdropping bans to non-private conversations. And most of those states, unlike Illinois, do not extend their prohibitions to open and obvious recording, as opposed to secret recording.
12

Case: 1:10-cv-05235 Document #: 36-1 Filed: 11/18/10 Page 14 of 19 PageID #:422
35. The Illinois Eavesdropping Act exempts certain audio recordings by law enforcement officials of conversations between law enforcement officials and members of the general public. Examples include:
(a) Conversations recorded “simultaneously with the use of an in-car video camera” during “traffic stops, pedestrian stops,” and similar events. 720 ILCS 5/14-3(h).
(b) Conversations with a civilian who is “an occupant of a police vehicle.” 720 ILCS 5/14-3(h-5).
(c) Conversations recorded “during the use of a taser or similar weapon or device” if the device is equipped with audio recording technology. 720 ILCS 5/14-3(h-10).
36. The legislative purpose of the statutory exemptions in the preceding paragraph is to deter and detect police misconduct, and rebut false accusations of police misconduct. Specifically:
(a) In 2009, Illinois amended the Act with Public Act 96-670, also known as House Bill 1057. This new law amended the foregoing exemption (h) to its current form, and created the foregoing exemptions (h-5) and (h-10).
(b) On April 2, 2009, during House debate regarding this bill, the House sponsor stated as follows the legislative purpose:
When there’s audio, then there is no question as to what was said or what wasn’t said and if someone is accused of doing something or saying something, this is the proof that they would have as a citizen also, not only for protection of law enforcement, but for the citizens to have the proof in hand as to what actually happened at that particular [moment].
13

Case: 1:10-cv-05235 Document #: 36-1 Filed: 11/18/10 Page 15 of 19 PageID #:423
See Tr. at pp. 83-84. See also id. at p. 84 (stating that such audio recording provides “protection for both” police and civilians).
37. Police officers performing their public duties in public places, and speaking at a volume audible to the unassisted human ear, have no reasonable expectation that the words they speak are private and will not be recorded, published, and disseminated. G. Application of the Act to audio recording the police
38. The Act is not moribund, and it is commonly enforced in the context at issue here in Cook County, as well as other Illinois counties. As intended by the Illinois General Assembly, police officers and prosecutors have used the Act to arrest and prosecute members of the general public who made audio recordings of police officers performing their public duties in public places and speaking at a volume audible to the unassisted human ear.
39. For example, defendant the Cook County State’s Attorney currently is prosecuting at least two different alleged violations of the Act:
(a) Alvarez currently is prosecuting a civilian for allegedly violating the Act by audio recording a police officer who was arresting him in a public place. The civilian moved to dismiss, arguing that the application of the Act to his audio recording violated the First Amendment. Alvarez successfully opposed the motion. The eavesdropping charges are now pending. See People v. Drew, No. 10-cr-4601 (Cook County Circuit Ct., charges filed Dec. 15, 2009).
(b) Alvarez currently is prosecuting another civilian for allegedly violating the Act by audio recording on-duty police officers. According to the testimony
14

Case: 1:10-cv-05235 Document #: 36-1 Filed: 11/18/10 Page 16 of 19 PageID #:424
elicited by Alvarez’s office at the preliminary hearing, the two internal affairs officers at the time were interviewing the civilian regarding her allegation that another police officer had committed misconduct against her. See People v. Moore, No. 10-cr-15709 (Cook County Circuit Ct., charges filed Aug. 31, 2010).
40. At least seven other State’s Attorneys in Illinois have brought eavesdropping charges under the Act against at least nine other civilians who made audio recordings of police officers performing their public duties in public places:
(a) The Champaign County State’s Attorney in 2004. See People v. Thompson, No. 04-cf-1609 (6th Judicial Circuit Ct.).
(b) The Winnebago County State’s Attorney in 2005. See People v. Wight, No. 05-cf-2454 (17th Judicial Circuit Ct.).
(c) The Will County State’s Attorney in 2006. See People v. Babarskas, No. 06-cf-537 (12th Judicial Circuit Ct.).
(d) The Crawford County State’s Attorney in 2009. See People v. Allison, No. 09-cf-50 (2nd Judicial Circuit Ct.).
(e) The DeKalb County State’s Attorney in 2010. See People v. Parteet, No. 10-cf-49 (16th Judicial Circuit Ct.).
(f) The Kane County State’s Attorney in 2010. See People v. Biddle, No. 10-cf-421 (16th Judicial Circuit Ct.).
(g) The Vermillion County State’s Attorney in 2010. See People v. Fitzpatrick, No. 10-cf-397 (5th Judicial Circuit Ct.).
41. The foregoing prosecution by the Champaign County State’s Attorney targeted civilians who, for purposes of advancing police accountability, had undertaken a
15

Case: 1:10-cv-05235 Document #: 36-1 Filed: 11/18/10 Page 17 of 19 PageID #:425
program of audio recording on-duty police officers performing their jobs in public places. 42. In the face of felony charges under the Act, several of the foregoing
criminal defendants pled guilty to reduced misdemeanor charges of attempted eavesdropping. H. Necessity of and entitlement to injunctive relief
43. The ACLU, Connell, and Carter are prepared and intend immediately to undertake the aforementioned program of making audio recordings of police officers in public.
44. The ACLU has refrained from audio recording police officers on two occasions since June 2010. See supra ¶ 22.
45. The ACLU, Connell, and Carter have a reasonable fear that if they make audio recordings of police officers, Alvarez will prosecute the ACLU, Connell, and Carter for violation of the Act. This reasonable fear is based on the factors set forth above at paragraph 25.
46. Unless enjoined by this Court, Alvarez can – and has not indicated that she would not – prosecute, pursuant to the Act, the ACLU, Connell, and Carter for carrying out the ACLU program of audio recording police officers performing their public duties in public places.
47. The ACLU, Connell, and Carter are suffering, and will continue to suffer, irreparable harm as a result of refraining from carrying out the aforementioned program of audio recording police officers carrying out their public duties in public places.
48. The ACLU, Connell, and Carter have no adequate remedy at law.
16

Case: 1:10-cv-05235 Document #: 36-1 Filed: 11/18/10 Page 18 of 19 PageID #:426
V. CLAIM FOR RELIEF 49. The allegations of paragraphs 1 through 48 are realleged and incorporated by reference as if fully set forth herein. 50. The Act violates the First Amendment to the U.S. Constitution, as applied to the audio recording of police officers, without the consent of the officers, when (a) the officers are performing their public duties, (b) the officers are in public places, (c) the officers are speaking at a volume audible to the unassisted human ear, and (d) the manner of recording is otherwise lawful. 51. Among other things, this application of the Act is unlawful because:
(a) The Free Speech Clause of the First Amendment protects the right to gather, receive, record, and disseminate the information at issue herein.
(b) The Free Speech Clause and the Petition Clause of the First Amendment protect the right to gather, receive, record, and disseminate the information at issue herein for purposes of using that information to petition government for redress of grievances.
(c) The Free Speech Clause and the Free Press Clause of the First Amendment protect the right to gather, receive, or record the information at issue herein for purposes of disseminating and publishing that information to other people.
VI. PRAYER FOR RELIEF WHEREFORE, the ACLU, Connell, and Carter respectfully request the following relief: A. Entry of a declaratory judgment holding that the Act violates the First Amendment, as applied to the audio recording of police officers, without the consent of
17

Case: 1:10-cv-05235 Document #: 36-1 Filed: 11/18/10 Page 19 of 19 PageID #:427

the officers, when (a) the officers are performing their public duties, (b) the officers are in

public places, (c) the officers are speaking at a volume audible to the unassisted human

ear, and (d) the manner of recording is otherwise lawful.

B. Entry of a preliminary injunction, and then a permanent injunction, that

enjoins defendant the Cook County State’s Attorney from prosecuting plaintiffs the

ACLU, Connell, and Carter, and other ACLU employees as directed by Connell, under

the Act for audio recording police officers, without the consent of the officers, when (a)

the officers are performing their public duties, (b) the officers are in public places, (c) the

officers are speaking at a volume audible to the unassisted human ear, and (d) the manner

of recording is otherwise lawful.

C. Award the ACLU, Connell, and Carter their reasonable attorneys’ fees,

costs, and expenses pursuant to 42 U.S.C. § 1988.

D. Award such other and further relief as this Court may deem just and

proper.

DATED: November 18, 2010

Respectfully submitted:

_s/ Richard J. O'Brien ________ Counsel for plaintiff

HARVEY GROSSMAN ADAM SCHWARTZ KAREN SHELEY Roger Baldwin Foundation of ACLU, Inc. 180 N. Michigan Ave. Suite 2300 Chicago, IL 60601 (312) 201-9740

RICHARD J. O’BRIEN LINDA R. FRIEDLIEB MATTHEW D. TAKSIN Sidley Austin LLP One South Dearborn Chicago, IL 60603 (312) 853-7000

18

Case: 1:10-cv-05235 Document #: 36-2 Filed: 11/18/10 Page 1 of 61 PageID #:428
EXHIBIT 2

Case: 1:10-cv-05235 Document #: 36-2 Filed: 11/18/10 Page 2 of 61 PageID #:429

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

THE AMERICAN CIVIL LIBERTIES
UNION OF ILLINOIS, COLLEEN CONNELL, AND ALLISON CARTER,

Plaintiffs,

Case No. 10 CV 5325

ANITA ALVAREZ, Cook County State's Attorney, in her official capacity,

Judge Suzanne B. Conlon Magistrate Judge Sidney I.
Schenkier

Defendant.

DECLARATION OF COLLEEN K. CONNELL IN SUPPORT OF PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION

I, Colleen K. Connell, state as follows:

A.

Background

1.

I am the Executive Director ofthe American Civil Liberties Union of

Illinois ("the ACLU"). The statements contained herein are based on personal

knowledge, including oral and written statements from staff who report to me in the regular course of operations of our organization. If sworn as a witness, I could testify

competently thereto.

2. The ACLU is a non-profit, non-partisan, statewide organization with more than 20,000 members and supporters dedicated to protecting and expanding the civil rights and civil liberties guaranteed by the Constitutions and civil rights laws of the United States and the State of Illinois. The ACLU is a not-for-profit corporation

incorporated under the laws of the State of Illinois. In all matters relevant to the above-

Case: 1:10-cv-05235 Document #: 36-2 Filed: 11/18/10 Page 3 of 61 PageID #:430

captioned lawsuit, the ACLU acts by and through its staff of approximately 25 salaried

employees who are under my direction.

3. In my capacity as Executive Director, I direct employees of the ACLU in

creating and disseminating communications which further the ACLU's goals of

protecting and expanding civil liberties and civil rights. In this capacity, but for the

Illinois Eavesdropping Act, 720 ILCS 5/14 ("the Act"), I immediately would direct

ACLU employees, including Allison Carter who is the ACLU's Senior Field Manager, to

audio record public police activity as part of the ACLU program, described below in

Paragraph 9.

B.

The ACLU's exercise of its right to gather, receive, record, and disseminate

information

4. In pursuing its objectives of protecting and expanding civil rights and civil

liberties, the ACLU regularly gathers, receives, and records information from numerous

sources, including by observing events in public places.

5. After gathering, receiving, and recording information, the ACLU regularly

publishes and disseminates that information to the general public, and regularly presents

that information to government bodies as partof the ACLU's efforts to petition the

government for redress of grievances.

6. The ACLU regularly engages in its own expressive activity in public places, and regularly records its ownexpressive activity at these events.

C. The ACLU program

7. The ACLU, presently, as it has in the past, monitors and observes police conduct in public places. In doing so, the ACLU seeks not only to observe and record the manner in which government employees perform their duties, but also to improve police

Case: 1:10-cv-05235 Document #: 36-2 Filed: 11/18/10 Page 4 of 61 PageID #:431
practices, and to deter and detect any unlawful police interference with constitutional liberties. For example, the ACLU often monitors and observes police conduct at expressive activity in public places, including when the ACLU is engaged in its own expressive activity.
8. The ACLU has monitored, and will monitor, police at public demonstrations, protests, parades, assemblies, speeches, leafleting, and similar occasions and events. Such expressive events are sometimes planned, and on other occasions are spontaneous. The ACLU is presently able to, and intends to, monitor police activity both at planned expressive events and at spontaneous expressive events.
9. In the exercise of the ACLU's rights to gather, receive, record, and disseminate information, the ACLU, under my direction and through my direct supervision of ACLU employees, including but not limited to Carter, has incorporated the use of common audio/video recording devices into the ACLU's ongoing monitoring of police in public places. Specifically, but for the Act, I am prepared to and would
immediately direct employees, including Carter, to audio record police officers, without the consent of the officers, when (a) the officers are performing their public duties, (b) the officers are in public places, (c) the officers are speaking at a volume audible to the unassisted human ear, and (d) the manner of recording is otherwise lawful (hereinafter "the ACLU program"). The ACLU and its employees under my supervision will carry out this ACLU program in Cook County Illinois.
10. TheACLU, presently, as it has in the past, monitors and observes police conduct in public places. In doing so, theACLU seeks not only to observe and record the manner in which government employees perform their duties, but also to improve police

Case: 1:10-cv-05235 Document #: 36-2 Filed: 11/18/10 Page 5 of 61 PageID #:432
practices, and to deter and detect any unlawful police interference with constitutional liberties. For example, the ACLU often monitors and observes police conduct at expressive activity in public places, including when the ACLU is engaged in its own expressive activity.
11. The ACLU has monitored, and will monitor, police at public demonstrations, protests, parades, assemblies, speeches, leafleting, and similar occasions and events. Such expressive events are sometimes planned, and on other occasions are spontaneous. The ACLU is presently able to, and intends to, monitor police activity both at planned expressive events and at spontaneous expressive events.
12. The ACLU often gathers, receives, and records information about police practices, and then publishes and disseminates that information to the general public, and uses that information to petition government for redress of grievances.
13. But for my reasonable fear of prosecution by Alvrarez under the Act (see infra Section D), I would immediately direct the commencement of the aforementioned program of audio recording police officers in public, and the use and dissemination of such recordings. This program includes recording policeconduct at expressive activity in
public places, including when the ACLU is engaged in its own expressive activity. 14. I have approved the expanded program of audio recording police as
described above in paragraph 9. Ijoin with the ACLU in seeking to expand and protect civil liberties by implementing the ACLU program of monitoring police by audio recording police in public places to advance police accountability. I would immediately authorize and direct Carter (and other ACLU employees) to engage in such audio recording, but for my reasonable fear of imminent prosecution by Alvarez under the Act

Case: 1:10-cv-05235 Document #: 36-2 Filed: 11/18/10 Page 6 of 61 PageID #:433
of Carter (the ACLU employee who made the recording), of the ACLU, and of myself as the person who authorized and directed the recording. See infra Section D.
15. On two recent occasions, I would have directed ACLU employees to audio record police officers performing their public duties in public places, but for the reasonable threat of prosecution by Alvarez under the Act. See infra Section D. On both occasions, ACLU employees did monitor police, but without audio recording. Specifically:
(a) On June 10,2010, an ACLU employee monitored a Chicago Police Department program of suspicionless container searches on Chicago's lakefront; and
(b) On November 8, 2010, Carter monitored a protest held in Chicago at the James R. Thompson Center concerning the killing of Iraqi Christians.
16. But for the reasonable threat of prosecution by Alvarez under the Act (see Section D), I would authorize and direct Carter (and other ACLU employees) to audio record police at planned and spontaneous events in Cook County in the future, including but not limited to the annual protest in spring 2011 in downtown Chicago in opposition to U.S. military policy in Iraq and Afghanistan.
17. The Act, by preventing the ACLU from implementing the ACLU program and audio recording policeofficers in public, directly and substantially prevents the ACLU from engaging in its important organizational activity of monitoring police conduct, and directly and substantially frustrates the ACLU's important organizational goal of advancing police accountability, and thereby protecting civil liberties.

Case: 1:10-cv-05235 Document #: 36-2 Filed: 11/18/10 Page 7 of 61 PageID #:434

D.

Mv reasonable fear of prosecution

18. For the following reasons, I have a reasonable fear that if I implement the

ACLU program, Alvarez will prosecute them pursuant to the Act:

(a) The Act on its face prohibits non-consensual audio recording of

non-private conversations.

(b) The Illinois Legislature intended the Act to prohibit audio

recording of non-private conversations with on-duty police.

(c) Alvarez is now prosecuting two cases under the Act in which

civilians allegedly audio recorded on-duty police. See Exs. A and B.

(d) In the original Complaint in this suit, the ACLU described the

ACLU program of audio recording police as set forth above in paragraph 3. Alvarez has

not in this litigation, or otherwise, indicated that the ACLU program does not violate the

Act, or that Alvarez would not prosecute the ACLU or its employees for carrying out the

ACLU program by audio recording police officers performing their duties in public. To

the contrary, Alvarez stated in her motion to dismiss: "Plaintiff is precluded from audio

recording any conversations without consent of all parties to such conversation, including

encounters between law enforcement and citizens." Dkt. No. 19, at p. 7.

(e) In the last six years, at least seven other State's Attorneys have

prosecuted at least nine other civilians under the Act for audio recording on-duty police,

including one prosecution of civilians undertaking a program of monitoring on-duty

police to promote police accountability. See Exs. C, D, E, F, G, H, and I.

Case: 1:10-cv-05235 Document #: 36-2 Filed: 11/18/10 Page 8 of 61 PageID #:435
(0 The Illinois criminal statutes impose criminal liability on persons who solicit criminal activity by other persons. See, e.g., 720 ILCS 5/5-1 (providing that for purposes of the Illinois criminal statutes, a person is criminally liable when they are "legally accountable" for the criminal misconduct of another); 720 ILCS 5/5-2(c) (providing that a person has such liability if they "solicit" criminal acts by another person). Thus, if I authorize and direct Carter to audio record police, and Carter does so, then Alvarez can prosecute me, as well as Carter.
(g) The Illinois criminal statutes impose criminal liability on private corporations that commit criminal activity directed by their top officials. See. e.g.. 720 ILCS 5/14-2 (prohibiting certain audio recording by a "person"); 720 ILCS 5/2-15 (providing that for purposes of the Illinois criminal statutes, a "person" includes a "private corporation"); 720 ILCS 5/5-4 (a)(2) (providing that for purposes of the Illinois criminal statutes, a corporation may be prosecuted for crimes authorized by high managerial agents). Thus, if I, as the ACLU's Executive Director, authorize and direct Carterto audio record police, and Carterdoes so, then Alvarezcan prosecute the ACLU (a private corporation), as well as Carter and me.
(h) The Officeof the Cook County Stale's Attorney repeatedly has prosecuted private corporations for criminal offenses. See, e.g., People v. Universal Public Transp., Inc., 401 111. App. 3d 179, 192 (1st Dist. 2010) (corporation convicted for fraud); People v. Bohne, 312 111. App. 3d 705, 706 (Is' Dist. 2000) (corporation indicted for tax impropriety); People v. O'Neil, 194 III. App. 3d 79, 88-89 (lsl Dist. 1990) (corporation indicted for involuntary manslaughter).

Case: 1:10-cv-05235 Document #: 36-2 Filed: 11/18/10 Page 9 of 61 PageID #:436
I declare under penalty of perjury pursuant to 28 U.S.C. § 1746 that the foregoing
statements are true and correct.
Dated: November/^, 2010
Respectfully submitted:

Case: 1:10-cv-05235 Document #: 36-2 Filed: 11/18/10 Page 10 of 61 PageID #:437
EXHIBIT A

Case: 1:10-cv-05235 Document #: 36-2 Filed: 11/18/10 Page 11 of 61 PageID #:438

Case: 1:10-cv-05235 Document #: 36-2 Filed: 11/18/10 Page 12 of 61 PageID #:439

Case: 1:10-cv-05235 Document #: 36-2 Filed: 11/18/10 Page 13 of 61 PageID #:440

Case: 1:10-cv-05235 Document #: 36-2 Filed: 11/18/10 Page 14 of 61 PageID #:441
EXHIBIT B

Case: 1:10-cv-05235 Document #: 36-2 Filed: 11/18/10 Page 15 of 61 PageID #:442

-·

1 STATE OF ILLINOIS

Arr. Date: 9/15/10

SS:

Orig. & One 12pgs

2 COUNTY OF COOK

3

IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS

COUNTY DEPARTMENT - FIRST MUNICIPAL DISTRICT

4

PEOPLE OF THE STATE

)

5 OF ILLINOIS,

6

Plaintiff,

!

YG 1S-'7oQo I

)

7

vs.

)No. 10 MC1 126862

)

8 TIAWANDA MOORE,

)

)

9

Defendant. )

10

PRELIMINARY HEARING

11
REPORT OF PROCEEDINGS had at the hearing of the
12 above-entitled cause, before the HONORABLE EDWARD HARMENING, Judge of said court, on the 25th day of
13 August, A.D. 2010.

14

APPEARED:

15

HON. ANITA M. ALVAREZ

State's Attorney of Cook County, by

16

MR. DAN PIWOWARCZYK,

Assistant State's Attorney,

17

appeared on behalf of the People;

18

HON. ABISHI C. CUNNINGHAM, JR.,

Public Defender of Cook County, by

19

MR. BARRINGTON BAKER

Assistant Public Defender

20

appeared on behalf of the Defendant.

21

22

23 Lanetta M. Nunn, CSR
Official Court Reporter 24 Municipal Division

1

Case: 1:10-cv-05235 Document #: 36-2 Filed: 11/18/10 Page 16 of 61 PageID #:443

1

I N DEX

2 Witness:

3 LUIS ALEJO

4

Direct Examination by:

Mr. Piwowarczyk

5
Cross-Examination by:

6

Mr. Baker

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

2

Page:
03 07

Case: 1:10-cv-05235 Document #: 36-2 Filed: 11/18/10 Page 17 of 61 PageID #:444

1

THE CLERK: Tiawanda Moore, 162.

2

(Wi tness sworn.)

3

THE COURT: What's your name, please?

4

MS. MOORE: Tiawanda Moore.

5

THE COURT: Is your first name T-i-a-w-a-n-d-a,

6 rna' am?

7

MS. MOORE: Yes, sir.

8

THE COURT: Okay. Ms. Moore stands before the

9 bench with her counsel. The officer's been sworn In.

10

Are there any proposed amendments?

11

MR. PIWOWARCZKY: No, your Honor.

12

THE COURT: All right. State, are you ready to

13 proceed?

14

MR. PIWOWARCZKY: Yes, your Honor.

15

LUIS ALEJO,

16 called as a witness herein, having been first duly sworn,

17 was examined and testified as follows:

18

DIRECT EXAMINATION

19 BY MR. PIWOWARCZYK:

20

Q. Would you please introduce yourself to the Court

21 stating your name, star number and unit of assignment?

22

A. Officer Luis Alejo, A-l-e-j-o, 10381, currently

23 assigned to Unit 121, Internal Affairs, Chicago Police

24 Department.

3

Case: 1:10-cv-05235 Document #: 36-2 Filed: 11/18/10 Page 18 of 61 PageID #:445

1

Q. I'd like to direct your attention to August 18th,

2 2010 at approximately 9:00 a.m. Were you on duty at that

3 time?

4

A. Yes.

5

Q. Were you working alone or with a partner?

6

A. I was working with Sergeant Plotke.

7

Q. Is that spelled P-I-o-t-k-e?

8

A. Correct.

9

Q. And were you -- at that date and time where were

10 you located?

11

A. We were located on 3510 South Michigan Avenue,

12 police headquarters, on the 5th Floor, Internal Affairs

13 Division inside a small interview room with the defendant 14 to my far right wearing the large blue Department of

15 Corrections uniform and glasses.

16

MR. PIWOWARCZKY: Your Honor, may the record

17 reflect an in-court identification of the defendant?

18

THE COURT: The record will.

19 BY MR. PIWOWARCZYK:

20

Q. Was there anyone in that interview room aside fro

21 yourself, the sergeant and the defendant in this case?

22

A. No.

23

Q. And while you were ln that interview room, was the

24 conversation taking place between yourself, the sergeant

4

Case: 1:10-cv-05235 Document #: 36-2 Filed: 11/18/10 Page 19 of 61 PageID #:446

1 and the defendant in this case?

2

A. That is correct.

3

Q. And did you notice something during this

4 conversation?

5

A. Yes, I did. At one point I noticed that the

6 defendant to my far right had a Blackberry in between her

7 legs, and the screen of that Blackberry there was a

8 microphone with some bars or waives indicating to me that

9 the recording application was active.

10

Q. After you made that observation, what did you do?

11

A. I stepped outside for a few seconds, informed the

12 sergeant, went back inside, informed the defendant to my

13 far right, Ms. Moore, of the Eavesdropping Law, and she

14 immediately denied recording the conversation.

15

Q. Subsequently, did you find out whether or not that

16 Blackberry had been recording the conversation between

17 yourself, the sergeant and the defendant?

18

A. Yes.

19

Q. How did you find that out?

20

A. After a search warrant was executed for a

21 forensics look into the phone, there was 7 minutes that

22 was recorded.

23

Q. Did you have an opportunity to hear that

24 recording?

5

Case: 1:10-cv-05235 Document #: 36-2 Filed: 11/18/10 Page 20 of 61 PageID #:447

1

A. No.

2

Q. Did you have an opportunity to hear that

3 recording?

4

A. No.

5

Q. Did you talk to someone who heard that recording?

6

A. The state's attorney who approved charges, as well

7 as the detective from confidential investigation section.

8

Q. When did that conversation take place between

9 yourself and the individual who heard that conversation?

10

A. I think it was the day after she had been

11 arrested.

12

Q. And did that conversation take place in person or

13 over the telephone?

14

A. In person.

15

Q. Where did that conversation take place?

16

A. In the 1st District.

17

Q. Was that between yours f and another law

18 enforcement officer or state's attorney?

19

A. That was with myself, Sergeant Plotke and the

20 state's attorney and Detective Morris.

21

Q. And did you also learn that the audiotape from th

22 defendant's Blackberry was inventoried under Inventory

23 No. 12101887?

24

A. Yes, that is correct.

6

Case: 1:10-cv-05235 Document #: 36-2 Filed: 11/18/10 Page 21 of 61 PageID #:448

1

Q. And did the defendant have the permission of

2 yourself or Sergeant Plotke to record that conversation?

3

A. No, nor did we have knowledge that we were being

4 recorded.

5

MR. PIWOWARCZYK: I have no further questions,

6 your Honor.

7

THE COURT: Cross, please.

8

CROSS-EXAMINATION

9 BY MR. BAKER:

10

Q. Officer Alejo, Ms. Moore was at the police

11 headquarters with you, and you were interviewing her

12 concerning her complaints of a sexual harassment case

13 against another policeman; is that correct?

14

MR. PIWOWARCZKY: Objection.

15

THE COURT: Sustained. The objection is

16 sustained.

17 BY MR. BAKER:

18

Q. Now, you were there interviewing her concerning a

19 Internal Affairs police matter; is that correct?

20

A. She was filing a complaint, that is correct.

21

Q. Okay. She was not a defendant or accused of a

22 crime; is that correct?

23

MR. PIWOWARCZKY: Objection, relevance.

24

THE COURT: Sustained.

7

Case: 1:10-cv-05235 Document #: 36-2 Filed: 11/18/10 Page 22 of 61 PageID #:449

1 BY MR. BAKER:

2

Q. Now, while you were in the interview room with

3 her, you said you noticed a cell phone between her legs;

4 is that correct?

5

A. That's correct.

6

Q. You actually never observed her activate that cell

7 phone; is that correct, sir?

8

A. That is correct.

9

MR. BAKER: Okay. Nothing further of this

10 witness, your Honor. I do have a brief argument.

11

THE COURT: State, do you have any further

12 witnesses?

13

MR. PIWOWARCZKY: May have just one moment, your

14 Honor?

15

THE COURT: Sure.

16

MR. PIWOWARCZKY: Brief redirect, your Honor?

17

THE COURT: Okay.

18

REDIRECT EXAMINATION

19 BY MR. PIWOWARCZKY:

20

Q. Did you find out whose cell phone that was?

21

A. That belonged to the defendant, Ms. Tiawanda

22 Moore.

23
I
24

MR. PIWOWARCZKY: I have no further questions. THE COURT: Any cross?

8

Case: 1:10-cv-05235 Document #: 36-2 Filed: 11/18/10 Page 23 of 61 PageID #:450

1

MR. BAKER: No.

2

THE COURT: Argument, please.

3

MR. BAKER: Your Honor, we seek finding of no

4 probable cause and Ms. Moore to be discharged.

5

I've had an opportunity to look at the

6 statute here concerning the eavesdropping, and it seems

7 to me the prosecution has to prove that a person

8 knowingly an intentionally decide to eavesdrop on an

9 official, your Honor.

10

There's been no evidence that she knowingly

11 intentionally intended to eavesdrop. She simply had a

12 cell phone on where a recording device may have been

13 activated. There's no telling or there's no evidence as

14 to how that cell phone may have been activated. And all

15 of us who use cell phones know that it's very easy to

16 push the wrong button or it's very easy to activate

17 something unintentionally.

18

When Officer Alejo asked her concerning that

19 cell phone, she denied eavesdropping because she did not

20 intend to eavesdrop. She simply pressed the wrong

21 button, your Honor. And on that basis, I don't believe

22 that the prosecution has in any way met the elements of

23 the offense. On that basis, I believe this woman should

24 be discharged.

c,
9

Case: 1:10-cv-05235 Document #: 36-2 Filed: 11/18/10 Page 24 of 61 PageID #:451

1

THE COURT: State, briefly.

2

MR. PIWOWARCZYK: Yes, your Honor. The

3 circumstantial evidence in this case points directly to

4 the defendant knowingly making this recording. Cell

5 phones don't activate themselves.

6

THE COURT: Okay. The burden -- counsel for

7 defense knows the burden is different as opposed to

8 trial. Based upon the burden that the State has at this

9 point, there will be a finding of probable cause. Motion

10 state, transfer to the Chief Judge, Room 101, September

11 15th at 9:00 a.m.

.

12

Defendant demands trial that will be the

13 order.

14

MR. BAKER: Your Honor, would you consider a bond

15 review for Ms. Moore? Ms. Moore is poor, she's indigent,

16 she has no background. And the offense is relatively a

17 minor one, it doesn't really involve the general public,

18 it involves the Police Department and I think an I-Bond

19 here may be appropriate.

20

THE COURT: What's bond been set at?

21

MR. BAKER: $15,000.

22

THE CLERK: 10.

23

MR. BAKER: $10,000. Please, excuse me.

24

THE COURT: Does the defendant have any

10

Case: 1:10-cv-05235 Document #: 36-2 Filed: 11/18/10 Page 25 of 61 PageID #:452

1 background, State?

2

MR. PIWOWARCZYK: No convi ions, your Honor.

3

The State is not going to waive notice on th

4 bond review on this case.

5

MR. BAKER: Judge, we're asking for the Court to

6 review her bond as for bond review sua sponte.

7

THE COURT: All right. Motion to reduce bond is

8 granted.
9

Bond set 5,000-D. It's still going to be a D

10 bond. 5,000 D. Good luck.

11

MR. BAKER: Thank you, your Honor.

12

(Whereupon, the case was

13

continued to 9/15/10.)

14

15

16

17

18

19

20

21

22

23

24

11

Case: 1:10-cv-05235 Document #: 36-2 Filed: 11/18/10 Page 26 of 61 PageID #:453

.;!

1 STATE OF ILLINOIS

. .

SS:

2 COUNTY OF COOK

3

IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS

COUNTY DEPARTMENT - FIRST MUNICIPAL DISTRICT

4

5

I, Lanetta M. Nunn, an Official Court Reporter for the

6 Circuit Court of Cook County, County Department,

7 First Municipal District, do hereby certify that I

8 reported in machine shorthand the proceedings had at the 9 hearing in the above-entitled cause; that I thereafter 10 caused the foregoing to be transcribed into typewriting,

11 which I hereby certify to be a true and accurate
.. 12 transcript of the report of proceedings had before the

13 HONORABLE EDWARD HARMENING, Judge of said Court.

14

15

16

17

18

Officia

19

20

21

22

23

j

D

thisi/ day

24 0

010 .

'.

12

Case: 1:10-cv-05235 Document #: 36-2 Filed: 11/18/10 Page 27 of 61 PageID #:454
EXHIBIT C

Case: 1:10-cv-05235 Document #: 36-2 Filed: 11/18/10 Page 28 of 61 PageID #:455

Case: 1:10-cv-05235 Document #: 36-2 Filed: 11/18/10 Page 29 of 61 PageID #:456

Case: 1:10-cv-05235 Document #: 36-2 Filed: 11/18/10 Page 30 of 61 PageID #:457

Case: 1:10-cv-05235 Document #: 36-2 Filed: 11/18/10 Page 31 of 61 PageID #:458

Case: 1:10-cv-05235 Document #: 36-2 Filed: 11/18/10 Page 32 of 61 PageID #:459

Case: 1:10-cv-05235 Document #: 36-2 Filed: 11/18/10 Page 33 of 61 PageID #:460

Case: 1:10-cv-05235 Document #: 36-2 Filed: 11/18/10 Page 34 of 61 PageID #:461

Case: 1:10-cv-05235 Document #: 36-2 Filed: 11/18/10 Page 35 of 61 PageID #:462

Case: 1:10-cv-05235 Document #: 36-2 Filed: 11/18/10 Page 36 of 61 PageID #:463

Case: 1:10-cv-05235 Document #: 36-2 Filed: 11/18/10 Page 37 of 61 PageID #:464
EXHIBIT D

Case: 1:10-cv-05235 Document #: 36-2 Filed: 11/18/10 Page 38 of 61 PageID #:465

Case: 1:10-cv-05235 Document #: 36-2 Filed: 11/18/10 Page 39 of 61 PageID #:466

Case: 1:10-cv-05235 Document #: 36-2 Filed: 11/18/10 Page 40 of 61 PageID #:467
EXHIBIT E

Case: 1:10-cv-05235 Document #: 36-2 Filed: 11/18/10 Page 41 of 61 PageID #:468

Case: 1:10-cv-05235 Document #: 36-2 Filed: 11/18/10 Page 42 of 61 PageID #:469

Case: 1:10-cv-05235 Document #: 36-2 Filed: 11/18/10 Page 43 of 61 PageID #:470
EXHIBIT F

Case: 1:10-cv-05235 Document #: 36-2 Filed: 11/18/10 Page 44 of 61 PageID #:471

Case: 1:10-cv-05235 Document #: 36-2 Filed: 11/18/10 Page 45 of 61 PageID #:472

Case: 1:10-cv-05235 Document #: 36-2 Filed: 11/18/10 Page 46 of 61 PageID #:473

Case: 1:10-cv-05235 Document #: 36-2 Filed: 11/18/10 Page 47 of 61 PageID #:474
EXHIBIT G

Case: 1:10-cv-05235 Document #: 36-2 Filed: 11/18/10 Page 48 of 61 PageID #:475

Case: 1:10-cv-05235 Document #: 36-2 Filed: 11/18/10 Page 49 of 61 PageID #:476

Case: 1:10-cv-05235 Document #: 36-2 Filed: 11/18/10 Page 50 of 61 PageID #:477

Case: 1:10-cv-05235 Document #: 36-2 Filed: 11/18/10 Page 51 of 61 PageID #:478

Case: 1:10-cv-05235 Document #: 36-2 Filed: 11/18/10 Page 52 of 61 PageID #:479
EXHIBIT H

Case: 1:10-cv-05235 Document #: 36-2 Filed: 11/18/10 Page 53 of 61 PageID #:480

Case: 1:10-cv-05235 Document #: 36-2 Filed: 11/18/10 Page 54 of 61 PageID #:481

Case: 1:10-cv-05235 Document #: 36-2 Filed: 11/18/10 Page 55 of 61 PageID #:482

Case: 1:10-cv-05235 Document #: 36-2 Filed: 11/18/10 Page 56 of 61 PageID #:483

Case: 1:10-cv-05235 Document #: 36-2 Filed: 11/18/10 Page 57 of 61 PageID #:484

Case: 1:10-cv-05235 Document #: 36-2 Filed: 11/18/10 Page 58 of 61 PageID #:485
EXHIBIT I

Case: 1:10-cv-05235 Document #: 36-2 Filed: 11/18/10 Page 59 of 61 PageID #:486

Case: 1:10-cv-05235 Document #: 36-2 Filed: 11/18/10 Page 60 of 61 PageID #:487

Case: 1:10-cv-05235 Document #: 36-2 Filed: 11/18/10 Page 61 of 61 PageID #:488

Case: 1:10-cv-05235 Document #: 36-3 Filed: 11/18/10 Page 1 of 6 PageID #:489
EXHIBIT 3

Case: 1:10-cv-05235 Document #: 36-3 Filed: 11/18/10 Page 2 of 6 PageID #:490

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

THE AMERICAN CIVIL LIBERTIES
UNION OF ILLINOIS, COLLEEN CONNELL, AND ALLISON CARTER,

Plaintiffs,

Case No. 10 CV 5325

ANITA ALVAREZ, Cook County State's Attorney, in her official capacity,

Judge Suzanne B. Conlon Magistrate Judge Sidney I.
Schenkier

Defendant.

DECLARATION OF ALLISON CARTER IN SUPPORT OF PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION

I, Allison Carter, state as follows:

A.

Background

1. I am the Senior Field Manager for the American Civil Liberties Union of

Illinois ("the ACLU"). The statements contained herein are based on personal

knowledge, including oral and written statements from other ACLU staff with whom I

work in the regular course of operations of our organization. If sworn as a witness, I

could testify competently thereto.

2. I am the ACLU's Senior Field Manager. In that capacity, I have been

selected by Colleen K. Connell, the ACLU's Executive Director, to perform the actual

audio/video recordingof police activity in Cook Countyas part of the ACLU program,

described below in Paragraph 5.

Case: 1:10-cv-05235 Document #: 36-3 Filed: 11/18/10 Page 3 of 6 PageID #:491

B.

ACLU Program

3. The ACLU, presently, as it has in the past, monitors and observes police

conduct in public places. In doing so, the ACLU seeks not only to observe and record the

manner in which government employees perform their duties, but also to improve police

practices, and to deter and detect any unlawful police interference with constitutional

liberties. For example, the ACLU often monitors and observes police conduct at

expressive activity in public places, including when the ACLU is engaged in its own

expressive activity.

4. The ACLU has monitored, and will monitor, police at public

demonstrations, protests, parades, assemblies, speeches, leafleting, and similar occasions

and events. Such expressive events are sometimes planned, and on other occasions are

spontaneous. The ACLU is presently able to, and intends to, monitor police activity both

at planned expressive events and at spontaneous expressive events.

5. In the exercise of the ACLU's rights to gather, receive, record, and

disseminate information, the ACLU, through my work as Senior Field Manager, has

incorporated the use of common audio/video recording devices into the ACLU's ongoing

monitoring of police in public places. Specifically, I am prepared to and intend

immediately, upon authorization by Connell, to audio record police officers, withoutthe

consent of the officers, when (a) the officers are performing their public duties, (b) the

officers are in public places, (c) the officers are speaking at a volume audible to the

unassisted human ear, and (d) the manner of recording is otherwise lawful (hereinafter

"the ACLU program"). I will carry out thisACLU program in Cook County Illinois.

Case: 1:10-cv-05235 Document #: 36-3 Filed: 11/18/10 Page 4 of 6 PageID #:492
6. But for my reasonable fear of prosecution by Alvrarez under the Act (see Section C), I would immediately, under the direction of Connell, commence the aforementioned program of audio recording police officers in public, and the use and dissemination of such recordings. This program includes recording police conduct at expressive activity in public places, including when the ACLU is engaged in its own
expressive activity. 7. On November 8,2010,1 monitored a protest held in Chicago at the James
R. Thompson Center concerning the killing of Iraqi Christians. Under Connell's direction, I would have audio recorded police officers performing their public duties at this public place, but for the reasonable threat of prosecution by Alvarez under the Act. (See Section C). I did monitor police, but without audio recording.
8. But for the reasonable threat of prosecution by Alvarez under the Act (see Section C), I would, under Connell's direction, audio record police at planned and spontaneous events in Cook County in the future, including but not limited to the annual protest in spring 2011 in downtown Chicago in opposition to U.S. military policy in Iraq and Afghanistan.
C. My reasonable fear of prosecution
18. For the following reasons, I have a reasonable fear that if I implement the ACLU program, Alvarez will prosecute them pursuant to the Act:
(a) The Act on its face prohibits non-consensual audio recording of non-private conversations.
(b) The Illinois Legislature intended the Act to prohibit audio recording of non-private conversations with on-duty police.

Case: 1:10-cv-05235 Document #: 36-3 Filed: 11/18/10 Page 5 of 6 PageID #:493
(c) Alvarez is now prosecuting two cases under the Act in which civilians allegedly audio recorded on-duty police.
(d) In the original Complaint in this suit, the ACLU described the ACLU program of audio recording police as set forth above in paragraph 3. Alvarez has not in this litigation, or otherwise, indicated that the ACLU program does not violate the Act, or that Alvarez would not prosecute the ACLU or its employees for carrying out the ACLU program by audio recording police officers performing their duties in public. To the contrary, Alvarez stated in her motion to dismiss: "Plaintiff is precluded from audio recording any conversations without consent of all parties to such conversation, including encounters between law enforcement and citizens." Dkt. No. 19, at p. 7.
(e) In the last six years, at least seven other State's Attorneys have prosecuted at least nine other civilians under the Act for audio recording on-duty police, including one prosecution of civilians undertaking a program of monitoring on-duty police to promote police accountability.

Case: 1:10-cv-05235 Document #: 36-3 Filed: 11/18/10 Page 6 of 6 PageID #:494
(i) The Office of the Cook County State's Attorney repeatedly has prosecuted private corporations for criminal offenses. See, e.g., People v. Universal Public Transp., Inc., 401 111. App. 3d 179, 192 (lsl Dist. 2010) (corporation convicted for
fraud); People v. Bohne, 312 111. App. 3d 705, 706 (lsl Dist. 2000) (corporation indicted for tax impropriety); People v. O'Neil, 194 111. App. 3d 79, 88-89 (lsl Dist. 1990)
(corporation indicted for involuntary manslaughter). I declare under penalty of perjury pursuant to 28 U.S.C. § 1746 that the foregoing
statements are true and correct.
Dated: November Yr2010
Respectfully submitted:
Allison Carter

 
 Case: 11-1286 Document: 45 Filed: 05/08/2012 Pages: 66

In the
United States Court of Appeals
For the Seventh Circuit

No. 11-1286 AMERICAN CIVIL LIBERTIES UNION OF ILLINOIS,
Plaintiff-Appellant, v.

ANITA ALVAREZ,

Defendant-Appellee.

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division.
No. 10 C 5235—Suzanne B. Conlon, Judge.

ARGUED SEPTEMBER 13, 2011—DECIDED MAY 8, 2012

Before POSNER, SYKES, and HAMILTON, Circuit Judges.
SYKES, Circuit Judge. The Illinois eavesdropping statute makes it a felony to audio record “all or any part of any conversation” unless all parties to the conversation give their consent. 720 ILL. COMP. STAT. 5/14-2(a)(1). The statute covers any oral communication regardless of whether the communication was intended to be private. Id. 5/14-1(d). The offense is normally a class 4 felony but is elevated to a class 1 felony—with a possible prison

Case: 11-1286 Document: 45 Filed: 05/08/2012 Pages: 66

2

No. 11-1286

term of four to fifteen years—if one of the recorded individuals is performing duties as a law-enforcement officer. Id. 5/14-4(b). Illinois does not prohibit taking silent video of police officers performing their duties in public; turning on a microphone, however, triggers class 1 felony punishment.
The question here is whether the First Amendment prevents Illinois prosecutors from enforcing the eavesdropping statute against people who openly record police officers performing their official duties in public. More specifically, the American Civil Liberties Union of Illinois (“ACLU”) challenges the statute as applied to the organization’s Chicago-area “police accountability program,” which includes a plan to openly make audiovisual recordings of police officers performing their duties in public places and speaking at a volume audible to bystanders. Concerned that its videographers would be prosecuted under the eavesdropping statute, the ACLU has not yet implemented the program. Instead, it filed this preenforcement action against Anita Alvarez, the Cook County State’s Attorney, asking for declaratory and injunctive relief barring her from enforcing the statute on these facts. The ACLU moved for a preliminary injunction.
Faced with so obvious a test case, the district court proceeded with some skepticism. The judge dismissed the complaint for lack of standing, holding that the ACLU had not sufficiently alleged a threat of prosecution. The ACLU tried again, submitting a new complaint addressing the court’s concerns. This time, the judge held

Case: 11-1286 Document: 45 Filed: 05/08/2012 Pages: 66

No. 11-1286

3

that the ACLU had cured the original defect but had “not alleged a cognizable First Amendment injury” because the First Amendment does not protect a “right to audio record.” The judge denied leave to amend. The ACLU appealed.
We reverse and remand with instructions to allow the amended complaint and enter a preliminary injunction blocking enforcement of the eavesdropping statute as applied to audio recording of the kind alleged here. The Illinois eavesdropping statute restricts a medium of expression commonly used for the preservation and communication of information and ideas, thus triggering First Amendment scrutiny. Illinois has criminalized the nonconsensual recording of most any oral communication, including recordings of public officials doing the public’s business in public and regardless of whether the recording is open or surreptitious. Defending the broad sweep of this statute, the State’s Attorney relies on the government’s interest in protecting conversational privacy, but that interest is not implicated when police officers are performing their duties in public places and engaging in public communications audible to persons who witness the events. Even under the more lenient intermediate standard of scrutiny applicable to contentneutral burdens on speech, this application of the statute very likely flunks. 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 freespeech and free-press guarantees.

Case: 11-1286 Document: 45 Filed: 05/08/2012 Pages: 66

4

No. 11-1286

I. Background
A. The Illinois Eavesdropping Law
In 1961 the Illinois General Assembly enacted a law making it a crime to use “an eavesdropping device to hear or record all or part of any oral conversation without the consent of any party thereto.” 1961 Ill. Laws 1983. The statute defines “eavesdropping device” as “any device capable of being used to hear or record oral conversation.” Id. (codified at 720 ILL. COMP. STAT. 5/14-1(a)); see also Celia Guzaldo Gamrath, A Lawyer’s Guide to Eavesdropping in Illinois, 87 ILL. B.J. 362, 363 (1999) (discussing the history of the Illinois eavesdropping law). The legislature later amended the law to require the consent of “all of the parties” to the conversation. Ill. Pub. Act 79-1159 (1976) (codified at 720 ILL. COMP. STAT. 5/14-2(a)(1)).
In People v. Beardsley, 503 N.E.2d 346, 349-50 (Ill. 1986), the Illinois Supreme Court adopted a narrow interpretation of the eavesdropping statute, declaring that audio recordings were prohibited only if the circumstances “entitle [the conversing parties] to believe that the conversation is private and cannot be heard by others who are acting in a lawful manner.” In other words, recording a conversation was punishable under the eavesdropping statute only if the conversing parties had an “expectation of privacy,” though the court remarked that the expectations of privacy protected under the statute were not necessarily “coextensive with those imposed on governmental action by the fourth amendment.” Id. at 351.

Case: 11-1286 Document: 45 Filed: 05/08/2012 Pages: 66

No. 11-1286

5

Eight years later the state supreme court reaffirmed its Beardsley decision in People v. Herrington, 645 N.E.2d 957 (Ill. 1994). The court held that “there can be no expectation of privacy by the declarant where the individual recording the conversation is a party to that conversation.” Id. at 958. Chief Justice Bilandic dissented, arguing that normal privacy expectations include an assumption that most conversations are not being recorded. Id. at 959-60 (Bilandic, C.J., dissenting). He also distinguished Beardsley because the parties to the conversation in that case “knew that the defendant had the tape recorder” and therefore “gave their implied consent to the recording of their conversation.” Id. at 960. The defendant in Herrington, by contrast, recorded a conversation surreptitiously.
In 1994 the Illinois legislature amended the eavesdropping statute so that it applies to “any oral communication between 2 or more persons regardless of whether one or more of the parties intended their communication to be of a private nature under circumstances justifying that expectation.” Ill. Pub. Act 88-677 (1994) (codified at 720 ILL. COMP. STAT. 5/14-1(d)). This amendment effectively overrode the Beardsley and Herrington decisions. As later interpreted by the Illinois Supreme Court, under the amended statute a party’s consent may be “inferred from the surrounding circumstances indicating that the party knowingly agreed to the surveillance.” People v. Ceja, 789 N.E.2d 1228, 1241 (Ill. 2003). However, express disapproval defeats any inference of consent. Plock v. Bd. of Educ. of Freeport Sch. Dist. No. 145, 920 N.E.2d 1087, 1095 (Ill. App. Ct. 2009).

Case: 11-1286 Document: 45 Filed: 05/08/2012 Pages: 66

6

No. 11-1286

The eavesdropping statute exempts recordings made by law-enforcement officers for law-enforcement purposes; officers have substantial discretion to record a wide variety of police-civilian encounters without the subject’s consent. 720 ILL. COMP. STAT. 5/14-3(h). These include any “enforcement stop,” a broadly defined term that includes “traffic stops,” “motorist assists,” “pedestrian stops,” and “requests for identification.” Id. Surreptitious law-enforcement intercepts for investigative purposes are governed by different subsections of the statute. See id. 5/14-3(g), (g-5), (g-6). The eavesdropping statute also contains an exemption for the media, at least in some circumstances; it exempts any recording made for “broadcast by radio, television, or otherwise” for live or “later broadcasts of any function where the public is in attendance and the conversations are overheard incidental to the main purpose for which such broadcasts are then being made.” Id. 5/14-3(c).

B. The ACLU’s First Amendment Challenge
The ACLU filed this suit against Alvarez in her official capacity seeking declaratory and injunctive relief under 42 U.S.C. § 1983 barring her from enforcing the eavesdropping statute against audio recording that the organization plans to carry out in connection with its “police accountability program.” More specifically, the ACLU intends to implement a “program of promoting police accountability by openly audio recording police officers without their consent when: (1) the officers are performing their public duties; (2) the officers are in

Case: 11-1286 Document: 45 Filed: 05/08/2012 Pages: 66

No. 11-1286

7

public places; (3) the officers are speaking at a volume audible to the unassisted human ear; and (4) the manner of recording is otherwise lawful.” The program will include, among other things, audiovisual recording of policing at “expressive activity” events—protests and demonstrations—in public fora in and around the Chicago area. The organization also plans to make audiovisual recordings of policing at “expressive activities” carried out by its members. The ACLU intends to publish these recordings online and through other forms of electronic media.
The ACLU alleged that its planned audiovisual recording is protected under the First Amendment’s speech, press, and petition clauses, but because of a credible fear of prosecution, it has not followed through on its program. The complaint asked for a declaratory judgment holding the eavesdropping statute unconstitutional as applied to the ACLU’s planned recording and for a corresponding injunction barring the Cook County State’s Attorney from enforcing the statute against the ACLU or its agents who carry out the recording. The ACLU also moved for a preliminary injunction.
The State’s Attorney moved to dismiss under Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure, arguing that the ACLU lacks standing and failed to state a claim of a First Amendment violation. The district court granted the motion on jurisdictional grounds, holding that the complaint did not adequately allege a credible fear of prosecution and that the ACLU therefore lacked standing to sue. The dismissal was

Case: 11-1286 Document: 45 Filed: 05/08/2012 Pages: 66

8

No. 11-1286

without prejudice, however, so the ACLU moved to amend the judgment under Rule 59(e) to allow an amended complaint under Rules 15(a)(2) and 21. The proposed amended complaint addressed the standing defect the court had identified, adding two individual plaintiffs—Colleen Connell, the ACLU’s Executive Director, and Allison Carter, the ACLU’s Senior Field Manager—and more detail about the threat of prosecution. The ACLU renewed its motion for a preliminary injunction.
The State’s Attorney opposed this second round of motions, and again the district court agreed. The judge held that although the ACLU had “cured the limited standing deficiencies” and now “sufficiently alleg[ed] a threat of prosecution,” the proposed amended complaint contained a different standing defect. Relying on Potts v. City of Lafayette, 121 F.3d 1106, 1111 (7th Cir. 1997), the judge held that “[t]he ACLU has not alleged a cognizable First Amendment injury” because the First Amendment does not protect “a right to audio record.” The judge also held that the ACLU had no First Amendment injury because the police officers and civilians who would be recorded were not “willing speakers.” The judge viewed the ACLU’s claim as “an unprecedented expansion of the First Amendment” and held that granting leave to amend would be futile because “[t]he ACLU has not met its burden of showing standing to assert a First Amendment right or injury.” The judge denied the motion to amend and thus declined to address the request for a preliminary injunction. This appeal followed.

Case: 11-1286 Document: 45 Filed: 05/08/2012 Pages: 66

No. 11-1286

9

II. Discussion
A. Rule 59(e), Rule 15(a), and Preliminary-Injunction Standards
This case comes to us from an order denying a Rule 59(e) motion to alter or amend a judgment to allow the filing of an amended complaint under Rule 15(a)(2). We review this ruling for an abuse of discretion. Sigsworth v. City of Aurora, Ill., 487 F.3d 506, 511 (7th Cir. 2007). But “[i]f the district court reached its conclusion because of its interpretation of relevant law, . . . then we review that question of law de novo because a district court’s application of an erroneous view of the law is by definition an abuse of discretion.” Sosebee v. Astrue, 494 F.3d 583, 586 (7th Cir. 2007).
The district court’s decision turned on mistaken understandings about the relevant First Amendment doctrine. As we will explain, the ACLU and its employees have standing; they face a credible threat of prosecution under the eavesdropping statute, and their amended complaint plainly alleges a First Amendment injury. Denying leave to amend also had the effect of denying the ACLU’s request for preliminary injunctive relief. The ACLU asks that we address that matter here.
“To win a preliminary injunction, a party must show that it has (1) no adequate remedy at law and will suffer irreparable harm if a preliminary injunction is denied and (2) some likelihood of success on the merits.” Ezell v. City of Chicago, 651 F.3d 684, 694 (7th Cir. 2011). If the moving party makes this threshold showing, the court “weighs the factors against one another, assessing

Case: 11-1286 Document: 45 Filed: 05/08/2012 Pages: 66

10

No. 11-1286

whether the balance of harms favors the moving party or whether the harm to the nonmoving party or the public is sufficiently weighty that the injunction should be denied.” Id.
Ordinarily we would remand to allow the district court to weigh the preliminary-injunction factors in the first instance. However, in First Amendment cases, “the likelihood of success on the merits will often be the determinative factor.” Joelner v. Village of Washington Park, Ill., 378 F.3d 613, 620 (7th Cir. 2004). This is because the “loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury,” Elrod v. Burns, 427 U.S. 347, 373 (1976) (plurality opinion), and the “quantification of injury is difficult and damages are therefore not an adequate remedy,” Flower Cab Co. v. Petitte, 685 F.2d 192, 195 (7th Cir. 1982). Moreover, if the moving party establishes a likelihood of success on the merits, the balance of harms normally favors granting preliminary injunctive relief because the public interest is not harmed by preliminarily enjoining the enforcement of a statute that is probably unconstitutional. Joelner, 378 F.3d at 620. Stated differently, “injunctions protecting First Amendment freedoms are always in the public interest.”1

1 The State’s Attorney argues that a preliminary injunction is inappropriate here because it would grant the ACLU affirmative relief rather than preserving the status quo. The Supreme Court has long since foreclosed this argument. See Ashcroft v. ACLU, 542 U.S. 656, 670-71 (2004) (finding a preenforcement
(continued...)

Case: 11-1286 Document: 45 Filed: 05/08/2012 Pages: 66

No. 11-1286

11

Christian Legal Soc’y v. Walker, 453 F.3d 853, 859 (7th Cir. 2006).
The parties have fully briefed the likelihood of success on the merits, which raises only a legal question. In this situation, it makes sense for us to address whether preliminary injunctive relief is warranted. See Wis. Right to Life State PAC v. Barland, 664 F.3d 139, 151 (7th Cir. 2011) (on appeal from an abstention order, deciding the plaintiff’s entitlement to an injunction because it raised a pure legal question under the First Amendment).
We are confronted, then, with a series of legal questions: (1) has the ACLU established standing to sue; (2) does the amended complaint state a claim for a First Amendment violation; and (3) is that claim likely to succeed? The district court stopped after the first inquiry, holding that the ACLU does not have standing to sue because it has no cognizable First Amendment injury. The State’s Attorney urges us to affirm this standing determination, though on a different rationale. In the alternative, she maintains that the proposed

1 (...continued) preliminary injunction appropriate to protect First Amendment rights because “speakers may self-censor rather than risk the perils of trial”); Doran v. Salem Inn, Inc., 422 U.S. 922, 931 (1975) (“[P]rior to final judgment there is no established declaratory remedy comparable to a preliminary injunction; unless preliminary relief is available upon a proper showing, plaintiffs in some situations may suffer unnecessary and substantial irreparable harm.”).

Case: 11-1286 Document: 45 Filed: 05/08/2012 Pages: 66

12

No. 11-1286

amended complaint does not state a claim for an actionable First Amendment violation. Standing comes before the merits, of course, In re Aqua Dots Prods. Liab. Litig., 654 F.3d 748, 750 (7th Cir. 2011), but as we’ll see, in this case there is some overlap, see Bond v. Utreras, 585 F.3d 1061, 1073 (7th Cir. 2009).

B. Standing
Standing is “an essential and unchanging part of the case-or-controversy requirement of Article III.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). To establish standing to sue in federal court,
a plaintiff must show that he is under threat of suffering “injury in fact” that is concrete and particularized; the threat must be actual and imminent, not conjectural or hypothetical; it must be fairly traceable to the challenged action of the defendant; and it must be likely that a favorable judicial decision will prevent or redress the injury.
Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009) (citing Friends of Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81 (2000)). Our review is de novo. Pollack v. U.S. Dep’t of Justice, 577 F.3d 736, 739 (7th Cir. 2009).
It is well established that “preenforcement challenges . . . are within Article III.” Brandt v. Village of Winnetka, Ill., 612 F.3d 647, 649 (7th Cir. 2010). To satisfy the injury-infact requirement in a preenforcement action, the plaintiff must show “an intention to engage in a course

Case: 11-1286 Document: 45 Filed: 05/08/2012 Pages: 66

No. 11-1286

13

of conduct arguably affected with a constitutional interest, but proscribed by a statute, and [that] there exists a credible threat of prosecution thereunder.” Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298 (1979). Stated differently, “[a] person need not risk arrest before bringing a pre-enforcement challenge under the First Amendment . . . .” Schirmer v. Nagode, 621 F.3d 581, 586 (7th Cir. 2010) (citing Holder v. Humanitarian Law Project, 130 S. Ct. 2705, 2717 (2010)); see also Ezell, 651 F.3d at 695. The “existence of a statute implies a threat to prosecute, so pre-enforcement challenges are proper [under Article III], because a probability of future injury counts as ‘injury’ for the purpose of standing.” Bauer v. Shepard, 620 F.3d 704, 708 (7th Cir. 2010); see also Majors v. Abell, 317 F.3d 719, 721 (7th Cir. 2003) (A preenforcement plaintiff “need not show that the authorities have threatened to prosecute him” because “the threat is latent in the existence of the statute.”).
The district court dismissed the first version of the ACLU’s complaint because it did not sufficiently allege a credible threat of prosecution under the eavesdropping statute. The proposed amended complaint added two individual plaintiffs—ACLU employees Connell and Carter—and more details about the threat of prosecution, including information about recent prosecutions under the eavesdropping statute on like facts. That was enough to satisfy the district court on this point; based on the new allegations, the judge found that “[t]he threat of prosecution is credible and imminent.” At this point, however, the judge perceived a different standing defect—one related to the merits of the claim.

Case: 11-1286 Document: 45 Filed: 05/08/2012 Pages: 66

14

No. 11-1286

Relying on our decision in Potts, the judge held that the First Amendment does not protect a “right to audio record” and therefore the ACLU had not alleged a constitutional injury. This was a misreading of Potts.
The issue in Potts was whether a police officer may refuse entry to an onlooker at a Ku Klux Klan rally because he wanted to bring a video camera onto the site. 121 F.3d at 1109-12. Past Klan rallies had inspired violence, so the police in Lafayette, Indiana, where the rally was to be held, established a rule banning any object that could be used as a weapon or projectile. John Potts arrived with a small video recorder and was denied entry based on the broad “no weapons” rule. He defied a police officer’s order and entered anyway, and was promptly arrested.
Potts then sued the City of Lafayette and two officers alleging First and Fourth Amendment violations. We affirmed the summary judgment in favor of the defendants. Id. at 1114. Addressing the First Amendment claim, we said that “there is nothing in the Constitution which guarantees the right to record a public event.” Id. at 1111 (citing Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 610 (1978) (explaining that the Sixth Amendment does not require broadcasting trials to the public); United States v. Kerley, 753 F.2d 617, 620-22 (7th Cir. 1985) (recognizing that the exclusion of cameras from federal courtrooms is constitutional)). The district court seized on this single sentence from Potts and read it for much more than it’s worth.
Immediately after this sentence is the following clarifying explanation: “The right to gather information

Case: 11-1286 Document: 45 Filed: 05/08/2012 Pages: 66

No. 11-1286

15

may be limited under certain circumstances. . . . The proper constitutional measure of the . . . ‘weapons’ ban is whether the restriction constitutes a valid time, place, or manner regulation.” Id. In other words, as applied to Potts, Lafayette’s ban did implicate free-speech interests under the First Amendment, but it was subject to review under the “time, place, or manner” standard applicable to content-neutral regulations. Our opinion in Potts continues on for several more pages, carefully applying that standard and upholding the weapons ban. Id. at 1111-12. If Potts stood for a categorical proposition that audiovisual recording is wholly unprotected, as the district court seemed to think, none of this analysis would have been necessary.
The court’s second reason for rejecting the amended complaint was also off the mark. The judge held that without a “willing speaker,” the ACLU had no First Amendment injury. In other words, because the ACLU does not plan to obtain consent from the officers and others whose communications will be recorded, there will be no “willing speakers” and the ACLU has no First Amendment right to receive and record their speech. By conceptualizing the case in this way, the judge seems to have assumed that, at most, only derivative speech rights are at stake.
That’s an incorrect assumption. The district court’s reliance on the “willing speaker” principle gets the doctrine right but its application wrong. It is well established that “[w]hen one person has a right to speak, others hold a ‘reciprocal right to receive’ the speech.” Ind. Right

Case: 11-1286 Document: 45 Filed: 05/08/2012 Pages: 66

16

No. 11-1286

to Life, Inc. v. Shepard, 507 F.3d 545, 549 (7th Cir. 2007) (quoting Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 757 (1976)). It’s also true that this derivative “right to receive” or “right to listen” principle “presupposes a willing speaker.” Va. State Bd. of Pharmacy, 425 U.S. at 756; see also Shepard, 507 F.3d at 549 (“a precondition of the right to receive . . . is the existence of a willing speaker” (internal quotation marks omitted)); Bond, 585 F.3d at 1077. But this is not a thirdparty “right to receive” case. The ACLU does not claim to be an intended recipient of police (or police-civilian) communications or to have a reciprocal right to receive the officers’ speech as a corollary of the officers’ right to speak.
Any bystander within earshot can hear what police officers say in public places; “receipt” occurs when the speech is uttered in public and at a volume that others can hear. In other words, the officers’ speech is “received” at the moment it is heard; the eavesdropping statute obviously does not prohibit this. The ACLU’s challenge to the statute implicates a different set of First Amendment principles. The “right to receive” strand of First Amendment doctrine—with its “willing speaker” precondition—has no bearing on the ACLU’s standing.
The State’s Attorney does not argue otherwise. Instead, she returns to the original standing problem that the district court identified. Alvarez maintains, as she did in the district court, that the ACLU has not alleged a credible threat of prosecution. We disagree. The eavesdropping statute plainly prohibits the ACLU’s proposed

Case: 11-1286 Document: 45 Filed: 05/08/2012 Pages: 66

No. 11-1286

17

audio recording; Alvarez acknowledges as much. The recording will be directed at police officers, obviously increasing the likelihood of arrest and prosecution. The statute has not fallen into disuse. To the contrary, the ACLU has identified many recent prosecutions against individuals who recorded encounters with onduty police officers; three of these were filed by Alvarez’s office.2 Finally, Alvarez has not foresworn the possibility of prosecuting the ACLU or its employees and agents if they audio record police officers without consent. See Commodity Trend Serv., Inc. v. Commodity Futures Trading Comm’n, 149 F.3d 679, 687 (7th Cir. 1998)

2 The Cook County prosecutions are People v. Drew, No. 10-cr-46 (Cook Cnty., Ill., Cir. Ct.), People v. Moore, No. 10-cr-15709 (Cook Cnty., Ill., Cir. Ct.), and People v. Tate, No. 11-cr-9515 (Cook Cnty., Ill., Cir. Ct.). We note that the presiding judge in People v. Drew recently held that the eavesdropping statute violates substantive due process and dismissed the case. People v. Drew, No. 10-cr-46 (Cook Cnty., Ill., Cir. Ct. Mar. 7, 2012). The ACLU identified the following additional prosecutions under the eavesdropping statute for civilian audio recording of law-enforcement officers: People v. Thompson, No. 04-cf-1609 (6th Cir., Champaign Cnty., Ill.); People v. Wight, No. 05-cf-2454 (17th Cir., Winnebago Cnty., Ill.); People v. Babarskas, No. 06-cf-537 (12th Cir., Will Cnty., Ill.); People v. Allison, No. 09-cf-50 (2d Cir., Crawford Cnty., Ill.); People v. Parteet, No. 10-cf-49 (16th Cir., DeKalb Cnty., Ill.); People v. Biddle, No. 10-cf-421 (16th Cir., Kane Cnty., Ill.); People v. Fitzpatrick, No. 10-cf-397 (5th Cir., Vermillion Cnty., Ill.); People v. Lee, No. 08-cf-1791 (12th Cir., Will Cnty., Ill.); and People v. Gordon, No. 10-cf-341 (11th Cir., Livingston Cnty., Ill.).

Case: 11-1286 Document: 45 Filed: 05/08/2012 Pages: 66

18

No. 11-1286

(“The Supreme Court has instructed us that a threat of prosecution is credible when a plaintiff’s intended conduct runs afoul of a criminal statute and the Government fails to indicate affirmatively that it will not enforce the statute.” (citing Virginia v. Am. Booksellers Ass’n, Inc., 484 U.S. 383, 393 (1988))). These allegations are easily sufficient to establish a credible threat of prosecution.
Alvarez’s arguments to the contrary are unavailing. She insists that the ACLU’s program is “advocacy under the guise of First Amendment infringement” without any possibility of a “personal and concrete injury.” We confess we do not understand the point. The ACLU’s status as an advocacy organization hardly defeats its standing. The organization intends to use its employees and agents to audio record on-duty police officers in public places. The ACLU claims a First Amendment right to undertake this recording, but the eavesdropping statute prohibits it from doing so. The ACLU itself, and certainly its employees and agents (Connell, Carter, and others), will face prosecution for violating the statute. See 720 ILL. COMP. STAT. 5/14-1(b), (c) (defining “eavesdropper” and the liability of an eavesdropper’s “principal”); see more generally id. 5/5-4(a)(2) (providing for corporate liability if the “offense is authorized, requested, commanded, or performed, by the board of directors or by a high managerial agent who is acting within the scope of his or her employment in behalf of the corporation”). Nothing more is needed for preenforcement standing.

Case: 11-1286 Document: 45 Filed: 05/08/2012 Pages: 66

No. 11-1286

19

The State’s Attorney maintains that the injury alleged here is “merely conjectural or hypothetical” because the threat of prosecution will only occur “at some indefinite future time” and “the identities of the parties to the conversations that [the] ACLU and its members want to audio record is wholly unknown.” This argument is a nonstarter. It is well established that in preenforcement suits “[i]njury need not be certain.” Brandt, 612 F.3d at 649. This is not a case in which the threat of prosecution hinges on a highly attenuated claim of speculative future events or unknowable details about the manner in which the statutory violation will be committed or enforced. Cf., e.g., City of Los Angeles v. Lyons, 461 U.S. 95, 105-06 (1983) (future injury depended on plaintiff violating an unchallenged law and provoking constitutional violations based on the manner of police enforcement); Schirmer, 621 F.3d at 587 (challenged law could not “fairly be read to prohibit” plaintiffs’ actions).
It’s true that the ACLU does not know precisely when it or its employees would face prosecution or which officers would be involved. Preenforcement suits always involve a degree of uncertainty about future events. See Brandt, 612 F.3d at 649 (“Any pre-enforcement suit entails some element of chance . . . .”). So long as that uncertainty does not undermine the credible threat of prosecution or the ability of the court to evaluate the merits of the plaintiff’s claim in a preenforcement posture, there is no reason to doubt standing. Here, absent officer consent, the eavesdropping statute flatly prohibits the ACLU’s planned recording, exposing the organization and its employees to arrest and criminal

Case: 11-1286 Document: 45 Filed: 05/08/2012 Pages: 66

20

No. 11-1286

punishment. The State’s Attorney has recently prosecuted similar violations and intends to continue doing so. That’s enough to establish a credible threat of prosecution.3
Finally, the State’s Attorney argues that principles of Younger abstention affect the standing inquiry, or alternatively, that Younger abstention applies. See Younger

3 Although the State’s Attorney does not raise it, a possible ground for doubting standing might be that openly made recordings could fall within the implied-consent doctrine. See People v. Ceja, 789 N.E.2d 1228, 1241 (Ill. 2003) (Consent may be “inferred from the surrounding circumstances,” including facts showing that “a party knows of . . . encroachments on the routine expectation that conversations are private.”). Implied consent is a factual issue for trial in a prosecution under the eavesdropping statute. That the ACLU and its employees may face prosecution is injury enough for preenforcement standing, even though they might be able to defend based on implied consent. Moreover, the impliedconsent doctrine, and more particularly its potential application in particular cases, is sufficiently ambiguous for the ACLU to have a credible fear of criminal liability. See, e.g., Williams v. Poulos, 11 F.3d 271, 281 (1st Cir. 1993) (“Implied consent is not . . . constructive consent. Rather, implied consent is consent in fact which is inferred from surrounding circumstances indicating that the party knowingly agreed to the surveillance.” (citations and internal quotation marks omitted)); see also Schirmer v. Nagode, 621 F.3d 581, 586 (7th Cir. 2010) (“[W]hen an ambiguous statute arguably prohibits certain protected speech, a reasonable fear of prosecution can provide standing for a First Amendment challenge.”).

Case: 11-1286 Document: 45 Filed: 05/08/2012 Pages: 66

No. 11-1286

21

v. Harris, 401 U.S. 37 (1971). “Younger abstention is appropriate only when there is an action in state court against the federal plaintiff and the state is seeking to enforce the contested law in that proceeding.” Forty One News, Inc. v. County of Lake, 491 F.3d 662, 665 (7th Cir. 2007). We have suggested in dicta that if a state prosecution “really were imminent, then a federal court might well abstain on comity grounds.” 520 S. Mich. Ave. Assocs., Ltd. v. Devine, 433 F.3d 961, 963 (7th Cir. 2006). The State’s Attorney maintains that because standing requires an imminent injury, Younger abstention must apply. By this logic, Younger precludes all federal preenforcement challenges to state laws. That’s obviously not right. The State’s Attorney’s argument misunderstands the basis of preenforcement standing, which “depends on the probability of harm, not its temporal proximity.” Id. at 962. Younger abstention does not apply and does not affect the standing inquiry. See Hoover v. Wagner, 47 F.3d 845, 848 (7th Cir. 1995).

C. The First Amendment Claim
On the merits the State’s Attorney has staked out an extreme position. She contends that openly recording what police officers say while performing their duties in traditional public fora—streets, sidewalks, plazas, and parks—is wholly unprotected by the First Amendment. This is an extraordinary argument, and it rests in large part on the same misreading of Potts and misapplication of the “willing speaker” principle that infected the district court’s standing determination. We have already

Case: 11-1286 Document: 45 Filed: 05/08/2012 Pages: 66

22

No. 11-1286

corrected these misunderstandings and need not repeat that analysis here.
For its part the ACLU contends that the eavesdropping statute, as applied to the facts alleged here, is subject to strict scrutiny. Whether strict scrutiny or some more forgiving standard of judicial review applies depends on what kind of First Amendment interest is at stake and how the eavesdropping statute affects that interest.

1. The Eavesdropping Statute Burdens Individual Speech and Press Rights
Unlike the federal wiretapping statute and the eavesdropping laws of most other states,4 the gravamen of the Illinois eavesdropping offense is not the secret interception or surreptitious recording of a private communication. Instead, the statute sweeps much more broadly, banning all audio recording of any oral communication absent consent of the parties regardless of whether the communication is or was intended to be private. The

4 As best we can tell, the Illinois statute is the broadest of its kind; no other wiretapping or eavesdropping statute prohibits the open recording of police officers lacking any expectation of privacy. See 18 U.S.C. § 2510(2); Jesse Harlan Alderman, Police Privacy in the iPhone Era?, 9 FIRST AMEND. L. REV. 487, 53345 (2011) (collecting state statutes); cf. OR. REV. STAT. § 165.540(1)(c), (6)(a) (exempting “unconcealed” recordings at public events but otherwise requiring that “all participants in the conversation are specifically informed that their conversation is being obtained”).

Case: 11-1286 Document: 45 Filed: 05/08/2012 Pages: 66

No. 11-1286

23

expansive reach of this statute is hard to reconcile with basic speech and press freedoms. For reasons we will explain, the First Amendment limits the extent to which Illinois may restrict audio and audiovisual recording of utterances that occur in public.5
Audio and audiovisual recording are media of expression commonly used for the preservation and dissemination of information and ideas and thus are “included within the free speech and free press guaranty of the First and Fourteenth Amendments.” Burstyn v. Wilson, 343 U.S. 495, 502 (1952) (holding that movies are a protected form of speech). Laws that restrict the use of expressive media have obvious effects on speech and press rights; the Supreme Court has “voiced particular concern with laws that foreclose an entire medium of expression.” City of Ladue v. Gilleo, 512 U.S. 43, 55 (1994) (collecting cases); see also Reno v. ACLU, 521 U.S. 844, 869-70 (1997) (recognizing that the internet is a “dynamic, multifaceted category of communication” and that there is “no basis for qualifying the level of First Amendment scrutiny that should be applied to this medium”).
The act of making an audio or audiovisual recording is necessarily included within the First Amendment’s

5 The First Amendment provides that “Congress shall make no law . . . abridging the freedom of speech, or of the press,” U.S. CONST. amend. I, and applies to the States through Section 1 of the Fourteenth Amendment, U.S. CONST. amend. XIV, § 1. See Near v. Minnesota ex rel. Olson, 283 U.S. 697, 707 (1931).

Case: 11-1286 Document: 45 Filed: 05/08/2012 Pages: 66

24

No. 11-1286

guarantee of speech and press rights as a corollary of the right to disseminate the resulting recording. The right to publish or broadcast an audio or audiovisual recording would be insecure, or largely ineffective, if the antecedent act of making the recording is wholly unprotected, as the State’s Attorney insists. By way of a simple analogy, banning photography or note-taking at a public event would raise serious First Amendment concerns; a law of that sort would obviously affect the right to publish the resulting photograph or disseminate a report derived from the notes. The same is true of a ban on audio and audiovisual recording.
This is a straightforward application of the principle that “[l]aws enacted to control or suppress speech may operate at different points in the speech process.” Citizens United v. FEC, 130 S. Ct. 876, 896 (2010). The Illinois eavesdropping statute regulates the use of a medium of expression; the Supreme Court has recognized that “regulation of a medium [of expression] inevitably affects communication itself.” City of Ladue, 512 U.S. at 48 (invalidating an ordinance banning residential signs). Put differently, the eavesdropping statute operates at the front end of the speech process by restricting the use of a common, indeed ubiquitous, instrument of communication. Restricting the use of an audio or audiovisual recording device suppresses speech just as effectively as restricting the dissemination of the resulting recording.
As our colleagues in the Ninth Circuit have observed, there is no fixed First Amendment line between the act of creating speech and the speech itself:

Case: 11-1286 Document: 45 Filed: 05/08/2012 Pages: 66

No. 11-1286

25

Although writing and painting can be reduced to their constituent acts, and thus described as conduct, we have not attempted to disconnect the end product from the act of creation. Thus, we have not drawn a hard line between the essays John Peter Zenger published and the act of setting the type. Cf. Minneapolis Star & Tribune Co. v. Minn. Comm’r of Revenue, 460 U.S. 575, 582 (1983) (holding that a tax on ink and paper “burdens rights protected by the First Amendment”). The process of expression through a medium has never been thought so distinct from the expression itself that we could disaggregate Picasso from his brushes and canvas, or that we could value Beethoven without the benefit of strings and woodwinds. In other words, we have never seriously questioned that the processes of writing words down on paper, painting a picture, and playing an instrument are purely expressive activities entitled to full First Amendment protection.
Anderson v. City of Hermosa Beach, 621 F.3d 1051, 1061-62 (9th Cir. 2010).
This observation holds true when the expressive medium is mechanical rather than manual. For instance, “[i]f the state were to prohibit the use of projectors without a license, First Amendment coverage would undoubtedly be triggered. This is not because projectors constitute speech acts, but because they are integral to the forms of interaction that comprise the genre of the cinema.” Robert Post, Encryption Source Code and the First Amendment, 15 BERKELEY TECH. L.J. 713, 717 (2000).

Case: 11-1286 Document: 45 Filed: 05/08/2012 Pages: 66

26

No. 11-1286

The Supreme Court’s campaign-finance cases illustrate how laws of this sort trigger First Amendment scrutiny. The Court held long ago that campaign-finance regulations implicate core First Amendment interests because raising and spending money facilitates the resulting political speech. See Buckley v. Valeo, 424 U.S. 1, 19 (1976) (per curiam) (restricting money spent on political communications “necessarily reduces the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached”); see also Citizens United, 130 S. Ct. at 898 (invalidating the federal ban on corporate and union spending for political speech because the government may not “repress speech by silencing certain voices at any of the various points in the speech process”); McConnell v. FEC, 540 U.S. 93, 252 (2003) (Scalia, J., concurring in part and dissenting in part) (“The right to speak would be largely ineffective if it did not include the right to engage in financial transactions that are the incidents of its exercise.”); Nixon v. Shrink Mo. Gov’t PAC, 528 U.S. 377, 400 (2000) (Breyer, J., concurring) (“[A] decision to contribute money to a campaign is a matter of First Amendment concern—not because money is speech (it is not); but because it enables speech.”).
So too with laws that restrict audio recording. Audio and audiovisual recording are communication technologies, and as such, they enable speech. Criminalizing all nonconsensual audio recording necessarily limits the information that might later be published or broadcast—whether to the general public or to a single family member or friend—and thus burdens First Amend-

Case: 11-1286 Document: 45 Filed: 05/08/2012 Pages: 66

No. 11-1286

27

ment rights. If, as the State’s Attorney would have it, the eavesdropping statute does not implicate the First Amendment at all, the State could effectively control or suppress speech by the simple expedient of restricting an early step in the speech process rather than the end result. We have no trouble rejecting that premise. Audio recording is entitled to First Amendment protection.6
And here, the First Amendment interests are quite strong. On the factual premises of this case, the eavesdropping statute prohibits nonconsensual audio recording of public officials performing their official duties in public. ” ‘[T]here is practically universal agreement that a major purpose of’ the First Amendment ‘was to protect the free discussion of governmental affairs’ . . . .” Ariz. Free Enter. Club’s Freedom Fund PAC v. Bennett, 131 S. Ct. 2806, 2828 (2011) (quoting Buckley, 424 U.S. at 14). This agreement “ ‘reflects our profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-

6 For more on how the First Amendment protects the use of communications technology, see Eugene Volokh, Freedom for the Press as an Industry, or for the Press as a Technology? From the Framing to Today, 160 U. PA. L. REV. 459 (2012); Seth F. Kreimer, Pervasive Image Capture and the First Amendment: Memory, Discourse, and the Right to Record, 159 U. PA. L. REV. 335 (2011); Diane Leenheer Zimmerman, I Spy: The Newsgatherer Under Cover, 33 U. RICH. L. REV. 1185 (2000); Rodney A. Smolla, Privacy and the First Amendment Right to Gather News, 67 GEO. WASH. L. REV. 1097 (1999).

Case: 11-1286 Document: 45 Filed: 05/08/2012 Pages: 66

28

No. 11-1286

open.’ ” Id. at 2828-29 (quoting Buckley, 424 U.S. at 14, quoting New York Times v. Sullivan, 373 U.S. 254, 270 (1964)). Moreover, “the First Amendment goes beyond protection of the press and self-expression of individuals to prohibit government from limiting the stock of information from which members of the public may draw.” First Nat’l Bank of Bos. v. Bellotti, 435 U.S. 765, 783 (1977). The freedom of speech and press “ ‘embraces at the least the liberty to discuss publicly and truthfully all matters of public concern without previous restraint or fear of subsequent punishment.’ ” Id. at 767 (quoting Thornhill v. Alabama, 310 U.S. 88, 101-02 (1940)).
In this regard, the ACLU’s challenge to the eavesdropping statute also draws on the principle that the First Amendment provides at least some degree of protection for gathering news and information, particularly news and information about the affairs of government. See Branzburg v. Hayes, 408 U.S. 665, 681 (1972). In Branzburg a news reporter claimed a First Amendment privilege to refuse to testify before a grand jury about his confidential sources. Id. at 667. The reporter argued that without an implied testimonial privilege, the right “of the press to collect and disseminate news” would be undermined. Id. at 698.
The Court rejected this claim, but before doing so it made the following general observation:
The heart of the claim is that the burden on news gathering resulting from compelling reporters to disclose confidential information outweighs any public interest in obtaining the information [by grandjury subpoena].

Case: 11-1286 Document: 45 Filed: 05/08/2012 Pages: 66

No. 11-1286

29

We do not question the significance of free speech, press, or assembly to the country’s welfare. Nor is it suggested that news gathering does not qualify for First Amendment protection; without some protection for seeking out the news, freedom of the press could be eviscerated.
Id. at 681. The Court declined to fashion a special journalists’ privilege for essentially two reasons. First, the Court relied on the general principle that “the First Amendment does not invalidate every incidental burdening of the press that may result from the enforcement of civil or criminal statutes of general applicability.” Id. at 682. By this the Court meant that “otherwise valid laws serving substantial public interests may be enforced against the press as against others, despite the possible burden that may be imposed.” Id. at 682-83 (emphasis added). Stated differently, the institutional press “ ‘has no special immunity from the application of general laws.’ ” Id. at 683 (quoting Associated Press v. NLRB, 301 U.S. 103, 132-33 (1937)). Second, the Court held that the public interest in detecting, punishing, and deterring crime was much stronger than the marginal increase in the flow of news about crime that a journalist’s testimonial privilege might provide. See id. at 700-01.
We will return to the point about generally applicable laws in a moment. For now, it is enough to note that the Court did not use that principle to reject the reporter’s claim out of hand. Instead, the Court evaluated the State’s demand for the reporter’s testimony against the First Amendment interests at stake and held that the

Case: 11-1286 Document: 45 Filed: 05/08/2012 Pages: 66

30

No. 11-1286

public’s interest in obtaining “ ‘every man’s evidence’ ” justified the incidental burden on First Amendment rights. Id. at 687 (quoting United States v. Bryan, 339 U.S. 323, 331 (1950)). The Court specifically reserved the question whether in a particular case, a subpoena for a reporter’s testimony might be a pretext for “[o]fficial harassment of the press,” a circumstance that “would pose wholly different issues for resolution under the First Amendment.” Id. at 707.
The Supreme Court has not elaborated much on its abstract observation in Branzburg that “news gathering is not without its First Amendment protections.”7 Id. The

7 One exception appears to be the Court’s caselaw recognizing a limited constitutional “right of access” to certain governmental proceedings. Based in part on the principle that the First Amendment protects a right to gather information about the government, the Court has recognized a qualified right of the press and public to attend certain governmental proceedings, at least where the proceeding “historically has been open to the press and general public,” and public access “plays a particularly significant role” in the functioning of the proceeding in question and “the government as a whole.” Globe Newspaper Co. v. Super. Ct. for the Cnty. of Norfolk, 457 U.S. 596, 605-06 (1982) (holding that a statute mandating closure of criminal trial during testimony of minor sexual-assault victim fails strict scrutiny); see also Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 8-9 (1986) (recognizing a qualified First Amendment right of the press and public to attend preliminary hearings); Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 576-77 (1980) (plurality opinion) (holding that
(continued...)

Case: 11-1286 Document: 45 Filed: 05/08/2012 Pages: 66

No. 11-1286

31

Branzburg opinion itself suggests some caution in relying too heavily on the Court’s discussion of a First Amendment right to gather news and information. See id. at 703-04 (noting that an expansive judicially administered right to gather information would “present practical and conceptual difficulties of a high order” and “embark the judiciary on a long and difficult journey” with an “uncertain destination”). Still, the Court’s observation that speech and press freedom includes, by implication, “some protection” for gathering information about the affairs of government is consistent with the historical understanding of the First Amendment.
To the founding generation, the liberties of speech and press were intimately connected with popular sovereignty and the right of the people to see, examine, and

7 (...continued) the First Amendment protects the right of the press and public to attend criminal trials); In re Cont’l Litig., 732 F.2d 1302, 1308 (7th Cir. 1984) (recognizing a right to attend civil trials); N.Y. Civil Liberties Union v. N.Y.C. Transit Auth., 652 F.3d 247, 260-61 (2d Cir. 2011) (recognizing a right to attend transitauthority meetings); Whiteland Woods, L.P. v. Township of West Whiteland, 193 F.3d 177, 181 (3d Cir. 1999) (recognizing a right to attend planning-commission meetings).
This is not, strictly speaking, a claim about the qualified First Amendment right of access to governmental proceedings. Access is assumed here; the ACLU claims a right to audio record events and communications that take place in traditional public fora like streets, sidewalks, plazas, parks, and other open public spaces.

Case: 11-1286 Document: 45 Filed: 05/08/2012 Pages: 66

32

No. 11-1286

be informed of their government. For example, in one of the most famous eighteenth-century essays on the freedom of speech,8 Whig commentator Thomas Gordon explained:
“That Men ought to speak well of their Governours is true, while their Governours deserve to be well spoken of; but to do publick Mischief, without hearing of it, is only the Prerogative and Felicity of Tyranny: A free People will be shewing that they are so, by their Freedom of Speech.
The Administration of Government, is nothing else but the Attendance of the Trustees of the People upon the Interest and Affairs of the People: And as it is the Part and Business of the People, for whose Sake alone all publick Matters are, or ought to be transacted, to see whether they be well or ill transacted; so it is the Interest, and ought to be the Ambition, of all honest Magistrates, to have their Deeds openly examined, and publickly scann’d.”

8 See, e.g., BERNARD BAILYN, THE IDEOLOGICAL ORIGINS OF THE AMERICAN REVOLUTION 36 (1967) (observing that Cato’s Letters, which included Gordon’s essay on the freedom of speech, were “republished entire or in part again and again . . . and referred to repeatedly in the pamphlet literature, . . . rank[ing] with the treatises of Locke as the most authoritative statement of the nature of political liberty and above Locke as an exposition of the social sources of the threats it faced”); Donald S. Lutz, The Relative Influence of European Writers on Late Eighteenth-Century American Political Thought, 78 AM. POL. SCI. REV. 189, 194 (1984).

Case: 11-1286 Document: 45 Filed: 05/08/2012 Pages: 66

No. 11-1286

33

Silence Dogood No. 8, THE NEW-ENGLAND COURANT (Boston), July 9, 1722, reprinted in 1 THE PAPERS OF BENJAMIN FRANKLIN 28 (Leonard W. Labaree et al. eds., 1959) (quoting Cato’s Letter No. 15). Other colonial writers “stressed the necessity and right of the people to be informed of their governors’ conduct so as to shape their own judgments on ‘Publick Matters’ and be qualified to choose their representatives.” LEONARD W. LEVY, EMERGENCE OF A FREE PRESS 134 (2004). The Virginia General Assembly objected to the infamous Sedition Act of 1798 in part “because it is levelled against that right of freely examining public characters and measures, and of free communication among the people thereon.” Virginia Resolutions of 1798, reprinted in 17 THE PAPERS OF JAMES MADISON 189-90 (David B. Mattern et al. eds., 1991) (emphasis added). In a subsequent report, James Madison explained that the Sedition Act had “repressed that information and communication among the people, which is indispensable to the just exercise of their electoral rights.” Virginia Report of 1800, reprinted in 17 THE PAPERS OF JAMES MADISON 343 (emphasis added).
This understanding prevailed at the time the Fourteenth Amendment was ratified. In his famous 1868 treatise on constitutional law, Thomas Cooley explained that a foremost purpose of the Constitution’s guarantee of speech and press liberty is
to secure the[] right to a free discussion of public events and public measures, and to enable every citizen at any time to bring the government and any person in authority to the bar of public opinion by any

Case: 11-1286 Document: 45 Filed: 05/08/2012 Pages: 66

34

No. 11-1286

just criticism upon their conduct in the exercise of the authority which the people have conferred upon them. To guard against repressive measures by the several departments of government, by means of which persons in power might secure themselves and their favorites from just scrutiny and condemnation, was the general purpose . . . . The evils to be guarded against were not the censorship of the press merely, but any action of the government by means of which it might prevent such free and general discussion of public matters as seems absolutely essential to prepare the people for an intelligent exercise of their rights as citizens.
THOMAS M. COOLEY, A TREATISE ON THE CONSTITUTIONAL LIMITATIONS 421-22 (1868) (emphasis added); see also Eugene Volokh, Freedom for the Press as an Industry, or for the Press as a Technology? From the Framing to Today, 160 U. PA. L. REV. 459 (2012) (collecting sources from the framing to the modern era); see generally AKHIL REED AMAR, THE BILL OF RIGHTS 20-26, 231-45 (1996) (explaining the structural role of speech and press rights based on founding-era and Reconstruction history).
In short, the eavesdropping statute restricts a medium of expression—the use of a common instrument of communication—and thus an integral step in the speech process. As applied here, it interferes with the gathering and dissemination of information about government officials performing their duties in public. Any way you look at it, the eavesdropping statute burdens speech and press rights and is subject to heightened First Amendment scrutiny.

Case: 11-1286 Document: 45 Filed: 05/08/2012 Pages: 66

No. 11-1286

35

The First Circuit agrees. In Glik v. Cunniffe, 655 F.3d 78, 79-81 (1st Cir. 2011), the court considered a claim of qualified immunity in a damages suit brought by a bystander who was arrested for using his cell phone to record police officers making an arrest on the Boston Common. The bystander alleged that the officers violated his rights under the First Amendment; the First Circuit rejected the officers’ defense of qualified immunity. Id. The court framed the issue this way: “[I]s there is a constitutionally protected right to videotape police carrying out their duties in public?” Id. at 82. The court held that “[b]asic First Amendment principles, along with case law from this and other circuits, answer that question unambiguously in the affirmative.”9 Id. The court went on to conclude that the right to record the police was clearly established, resting its conclusion primarily on the Supreme Court’s observations about the right to gather and disseminate information about government: “Gathering information about government officials in a form that can readily be disseminated to others serves a cardinal First Amendment interest in protecting and promoting ‘the free discussion of governmental affairs.’ ” Id. (quoting Mills v. Alabama, 384 U.S. 214, 218 (1966)).10

9 The claimant in Glik recorded the arrest because he thought the police were using excessive force. But the court’s First Amendment ruling was not limited to “defensive” recording to preserve evidence of wrongdoing, as our dissenting colleague suggests. Dissent at 54.
10 On the other hand, the Third Circuit resolved a similar (continued...)

Case: 11-1286 Document: 45 Filed: 05/08/2012 Pages: 66

36

No. 11-1286

Before moving on, a few words about challenges to generally applicable laws. As we have noted, the Supreme Court’s decision in Branzburg rested in part on the principle that a generally applicable law will not violate the First Amendment simply because its application has an incidental effect on speech or the press. 408

10 (...continued) qualified-immunity question differently in Kelly v. Borough of Carlisle, 622 F.3d 248 (3d Cir. 2010), which involved a First Amendment claim by a plaintiff who was arrested under the Pennsylvania wiretapping statute for recording a police officer during a traffic stop. Although the Third Circuit found some support for a First Amendment right to record police officers performing their duties in public in some situations, id. at 260-62, the court held that “there [i]s insufficient case law establishing a right to videotape police officers during a traffic stop to put a reasonably competent officer on ‘fair notice’ that seizing a camera or arresting an individual for videotaping police during the stop would violate the First Amendment,” id. at 262.
The First Circuit’s decision in Glik aligns with authority from the Eleventh Circuit and with the weight of districtcourt decisions. See Smith v. City of Cumming, 212 F.3d 1332, 1333 (11th Cir. 2000) (summarily recognizing “a First Amendment right, subject to reasonable time, manner and place restrictions, to photograph or videotape police conduct”); see also Seth F. Kreimer, Pervasive Image Capture and the First Amendment: Memory, Discourse, and the Right to Record, 159 U. PA. L. REV. 335, 368 n.113 (2011) (collecting district-court cases).
This case does not, of course, raise a question of qualified immunity; we do not need to take sides in the circuit split in order to decide this case.

Case: 11-1286 Document: 45 Filed: 05/08/2012 Pages: 66

No. 11-1286

37

U.S. at 682; see also Cohen v. Cowles Media Co., 501 U.S. 663, 669 (1991) (“[G]enerally applicable laws do not offend the First Amendment simply because their enforcement . . . has incidental effects on [the] ability to gather and report the news.”); Arcara v. Cloud Books, Inc., 478 U.S. 697, 707 (1986) (“[T]he First Amendment is not implicated by the enforcement of a public health regulation of general application against the physical premises in which respondents happen to sell books.”).
It’s important to note that the legal sanction at issue in Branzburg—enforcement of a grand-jury subpoena—was not aimed at the exercise of speech or press rights as such. Likewise Cohen involved a claim by two newspapers for a special First Amendment immunity from damages liability for breach of a promise to keep a source’s identity confidential. As in Branzburg, the Court rejected the claim of special press immunity and upheld the damages award against the newspapers. The Court observed that the doctrine of promissory estoppel is generally applicable and the “enforcement of such general laws against the press is not subject to stricter scrutiny than would be applied to enforcement against other persons or organizations.” Cohen, 501 U.S. at 670. Branzburg and Cohen thus stand for the unremarkable proposition that the press does not enjoy a special constitutional exemption from generally applicable laws.
Similarly, in Arcara the Court upheld a court order shutting down an adult bookstore pursuant to a state nuisance statute authorizing the closure of premises where prostitution is ongoing. The Court held that

Case: 11-1286 Document: 45 Filed: 05/08/2012 Pages: 66

38

No. 11-1286

“the First Amendment is not implicated by the enforcement of a public health regulation of general application against the physical premises in which respondents happen to sell books.” 478 U.S. at 707. The Court noted, however, that it would be a different case if “the ‘nonspeech’ which drew sanction was intimately related to expressive conduct protected under the First Amendment.” Id. at 706 n.3. Instead, the “nonspeech” that was subject to general public-health regulation in Arcara—operating an establishment where prostitution is carried on—“bears absolutely no connection to any expressive activity,” notwithstanding that the establishment is also a bookstore. Id. at 707 n.3.
On the other hand, in Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991), the Court applied First Amendment scrutiny to Indiana’s public-indecency statute as applied to establishments that offer nude dancing. The Court observed that “nude dancing of the kind sought to be performed here is expressive conduct within the outer perimeters of the First Amendment, though we view it as only marginally so.” Id. at 566. Applying the intermediate standard of review established in United States v. O’Brien, 391 U.S. 367, 376-77 (1968), the Court upheld Indiana’s modest requirement that dancers wear a modicum of clothing (“pasties” and “G-strings”) because that requirement served “a substantial government interest in protecting order and morality,” Barnes, 501 U.S. at 569, and was “the bare minimum necessary to achieve the State’s purpose,” id. at 572.
These cases illustrate the point that “enforcement of a generally applicable law may or may not be subject to

Case: 11-1286 Document: 45 Filed: 05/08/2012 Pages: 66

No. 11-1286

39

heightened scrutiny under the First Amendment.” Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 640 (1994); see also Food Lion, Inc. v. Capital Cities/ABC, Inc., 194 F.3d 505, 521-22 (4th Cir. 1999). When the expressive element of an expressive activity triggers the application of a general law, First Amendment interests are in play. On the other hand, when “speech” and “nonspeech” elements are combined, and the “nonspeech” element (e.g., prostitution) triggers the legal sanction, the incidental effect on speech rights will not normally raise First Amendment concerns. See Eugene Volokh, Speech as Conduct, Generally Applicable Laws, Illegal Courses of Conduct, “Situation-Altering Utterances,” and the Uncharted Zones, 90 CORNELL L. REV. 1277, 1278-93 (2005).
The Illinois eavesdropping statute may or may not be a law of general applicability; as we have noted, it contains a number of exemptions. Either way, it should be clear by now that its effect on First Amendment interests is far from incidental. To the contrary, the statute specifically targets a communication technology; the use of an audio recorder—a medium of expression—triggers criminal liability. The law’s legal sanction is directly leveled against the expressive element of an expressive activity. As such, the statute burdens First Amendment rights directly, not incidentally.

2. Content Based or Content Neutral?
The ACLU contends that the eavesdropping statute is subject to strict scrutiny because it restricts speech based on its content and discriminates among speakers.

Case: 11-1286 Document: 45 Filed: 05/08/2012 Pages: 66

40

No. 11-1286

The First Amendment “does not countenance government control over the content of messages expressed by private individuals.” Turner, 512 U.S. at 641. This is a “bedrock principle” of First Amendment law. Snyder v. Phelps, 131 S. Ct. 1207, 1219 (2011) (quotation marks omitted). “[A]s a general matter, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” Ashcroft v. ACLU, 535 U.S. 564, 573 (2002) (quotation marks omitted). Laws that restrict speech based on its content are “presumptively invalid, and the Government bears the burden to rebut that presumption.” United States v. Stevens, 130 S. Ct. 1577, 1584 (2010) (quotation marks omitted).
Accordingly, regulatory measures “that suppress, disadvantage, or impose differential burdens upon speech because of its content” are subject to strict scrutiny. Turner, 512 U.S. at 642. “In contrast, regulations that are unrelated to the content of speech are subject to an intermediate level of scrutiny . . . because in most cases they pose a less substantial risk of excising certain ideas or viewpoints from the public dialogue.” Id. (citation omitted). Although the line between contentneutral and content-based laws is sometimes hard to draw, “the ‘principal inquiry in determining content neutrality . . . is whether the government has adopted a regulation of speech because of [agreement or] disagreement with the message it conveys.’ ” Id. (alterations in original) (quoting Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989)). Stated differently, “laws that by their terms distinguish favored speech from disfavored

Case: 11-1286 Document: 45 Filed: 05/08/2012 Pages: 66

No. 11-1286

41

speech on the basis of the ideas or views expressed are content based.” Id. at 643.
The eavesdropping statute is content neutral on its face. It does not target any particular message, idea, or subject matter. The ACLU argues that the eavesdropping statute should be treated as a content-based restriction because its enforcement requires an examination of the audio recording to determine whether a violation has occurred. This argument misunderstands the First Amendment requirement of content neutrality. A law is not considered “content based” simply because a court must “look at the content of an oral or written statement in order to determine whether a rule of law applies.” Hill v. Colorado, 530 U.S. 703, 721 (2000).
The ACLU also argues that the eavesdropping statute discriminates among speakers by allowing “uniformed on-duty police at their discretion and without court approval to make virtually any audio recording of their conversations with civilians, while forbidding civilians from making virtually any audio recording of those same conversations.” Here the ACLU relies on the well-established principle that
the Government may commit a constitutional wrong when by law it identifies certain preferred speakers. By taking the right to speak from some and giving it to others, the Government deprives the disadvantaged person or class of the right to use speech to strive to establish worth, standing, and respect for the speaker’s voice.

Case: 11-1286 Document: 45 Filed: 05/08/2012 Pages: 66

42

No. 11-1286

Citizens United, 130 S. Ct. at 899. But this kind of contentbased discrimination arises when the government discriminates among private speakers, not when it facilitates its own speech. For example, a governmental agency that records its own meetings but bars members of the public from doing so has not preferred one class of private speakers over another, although other First Amendment concerns might arise. Here, the exemption for law-enforcement officers is constitutionally insignificant.11
The exemption for the media may be another matter, however. As we have noted, the eavesdropping statute exempts live broadcasts or recordings made for later broadcast “by radio, television, or otherwise” of “any function where the public is in attendance and the conversations are overheard incidental to the main purpose for which such broadcasts are then being made.” 720 ILL. COMP. STAT. 5/14-3(c). This exemption appears to be aimed at media coverage of public events in which conversations are captured without consent as an incidental consequence of broadcasting the event itself, or recording it for later broadcast. This exemption for broadcasting may amount to discrimination among private speakers, though perhaps it’s broad enough to cover recordings made by individuals as well as the

11 The ACLU also suggests that the statute’s enhanced penalty for recording a police officer, prosecutor, or judge amounts to content-based discrimination. This argument is off point. The ACLU is not seeking an injunction against the penalty enhancement.

Case: 11-1286 Document: 45 Filed: 05/08/2012 Pages: 66

No. 11-1286

43

institutional press. See Turner, 512 U.S. at 659 (“Regulations that discriminate among media, or among different speakers within a single medium, often present serious First Amendment concerns.”). We need not decide the effect of this exemption here. The ACLU does not mention it, probably because the recordings at issue in this case are not limited to those that are “incidental” to recording a public event.
In the end, we think it unlikely that strict scrutiny will apply. But there is no need to resolve the matter here. The ACLU’s challenge is likely to succeed under any of the less rigorous standards of scrutiny that apply to restrictions on speech. At the very least, the State’s Attorney will have to justify this application of the eavesdropping statute under some form of intermediate scrutiny.

3. The Eavesdropping Statute Likely Fails Intermediate Scrutiny
The Supreme Court uses several variations of intermediate scrutiny in its free-speech cases. When an intermediate standard of review applies in the campaignfinance context—for example, when the Court reviews limits on contributions to candidates—the challenged law must be “closely drawn to serve a sufficiently important interest . . . .” Ariz. Free Enter. Club, 131 S. Ct. at 2817 (internal quotation marks omitted); see also Doe v. Reed, 130 S. Ct. 2811, 2818 (2010).
In commercial-speech cases, the government must establish that the challenged statute “directly advances

Case: 11-1286 Document: 45 Filed: 05/08/2012 Pages: 66

44

No. 11-1286

a substantial governmental interest and that the measure is drawn to achieve that interest.” Sorrell v. IMS Health Inc., 131 S. Ct. 2653, 2667-68 (2011). Stated differently, intermediate scrutiny in this context requires “a ‘fit’ between the legislature’s ends and the means chosen to accomplish those ends, . . . a fit that is not necessarily perfect, but reasonable; that represents not necessarily the single best disposition but one whose scope is in proportion to the interest served.” Bd. of Trs. of State Univ. of N.Y. v. Fox, 492 U.S. 469, 480 (1989) (citations and internal quotation marks omitted).
Under the Court’s speech-forum doctrine, a regulatory measure may be permissible as a “time, place, or manner” restriction if it is “ ‘justified without reference to the content of the regulated speech, . . . narrowly tailored to serve a significant governmental interest, . . . and . . . leave[s] open ample alternative channels for communication of the information.’ ” Ward, 491 U.S. at 791 (quoting Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293 (1984)).
Though stated in different terms, these intermediatescrutiny standards share certain essential elements in common. All require (1) content neutrality (contentbased regulations are presumptively invalid); (2) an important public-interest justification for the challenged regulation; and (3) a reasonably close fit between the law’s means and its ends. This last requirement means that the burden on First Amendment rights must not be greater than necessary to further the important governmental interest at stake. See Fox, 492 U.S. at 480;

Case: 11-1286 Document: 45 Filed: 05/08/2012 Pages: 66

No. 11-1286

45

Ward, 491 U.S. at 799; see also O’Brien, 391 U.S. at 376-77 (stating an alternative formulation of intermediate scrutiny).
As we have explained, the eavesdropping statute probably satisfies the requirement of content neutrality. As applied here, however, it very likely fails the rest of the test. The State’s Attorney defends the law as necessary to protect conversational privacy. This is easily an important governmental interest. Bartnicki v. Vopper, 532 U.S. 514, 532 (2001) (“Privacy of communication is an important interest . . . .”). Indeed, the protection of personal conversational privacy serves First Amendment interests because “fear of public disclosure of private conversations might well have a chilling effect on private speech.” Id. at 533.
At common law, actionable invasion of privacy takes several forms: (1) an unreasonable intrusion upon the seclusion of another; (2) appropriation of another’s name or likeness; (3) unreasonable publicity given to another’s private life; and (4) publicity that unreasonably places another in a false light before the public. RESTATEMENT (SECOND) OF TORTS § 652A; Wolfe v. Schaefer, 619 F.3d 782, 784 (7th Cir. 2010); Desnick v. Am. Broad. Cos., 44 F.3d 1345, 1353 (7th Cir. 1995); Haynes v. Alfred A. Knopf, Inc., 8 F.3d 1222, 1229 (7th Cir. 1993). In Fourth Amendment law, there is “no talisman that determines in all cases those privacy expectations that society is prepared to accept as reasonable.” O’Connor v. Ortega, 480 U.S. 709, 715 (1987) (plurality opinion); see also Orin S. Kerr, Four Models of Fourth Amendment Protection, 60 STAN. L. REV.

Case: 11-1286 Document: 45 Filed: 05/08/2012 Pages: 66

46

No. 11-1286

503 (2007) (discussing different understandings of privacy). But surreptitiously accessing the private communications of another by way of trespass or nontrespassory wiretapping or use of an electronic listening device clearly implicates recognized privacy expectations. See United States v. Jones, 132 S. Ct. 945, 945-52 (2012); Bartnicki, 532 U.S. at 526; Katz v. United States, 389 U.S. 347, 35152 (1967).
Simply put, these privacy interests are not at issue here. The ACLU wants to openly audio record police officers performing their duties in public places and speaking at a volume audible to bystanders. Communications of this sort lack any “reasonable expectation of privacy” for purposes of the Fourth Amendment. See Katz, 389 U.S. at 351 (“What a person knowingly exposes to the public . . . is not a subject of Fourth Amendment protection.”); id. at 361 (Harlan, J., concurring) (“[C]onversations in the open would not be protected against being overheard, for the expectation of privacy under the circumstances would be unreasonable.”). Dissemination of these communications would not be actionable in tort. See RESTATEMENT (SECOND) OF TORTS §§ 652B, 652D (explaining the elements of the different invasion-of-privacy torts).12

12 Nothing we have said here endangers the tort law of privacy, as the dissent suggests. Dissent at 59-60. A tortious invasion of privacy occurs when a person “gives publicity to a matter concerning the private life of another . . . if the matter publicized is of a kind that (a) would be highly offensive to a
(continued...)

Case: 11-1286 Document: 45 Filed: 05/08/2012 Pages: 66

No. 11-1286

47

Of course, the First Amendment does not prevent the Illinois General Assembly from enacting greater protection for conversational privacy than the commonlaw tort remedy provides. Nor is the legislature limited to using the Fourth Amendment “reasonable expectation of privacy” doctrine as a benchmark. But by legislating this broadly—by making it a crime to audio record any conversation, even those that are not in fact private—the State has severed the link between the eavesdropping statute’s means and its end. Rather than attempting to tailor the statutory prohibition to the important goal of protecting personal privacy, Illinois has banned nearly all audio recording without consent of the parties—including audio recording that implicates no privacy interests at all.
The ACLU’s proposed audio recording will be otherwise lawful—that is, not disruptive of public order or safety, and carried out by people who have a legal right to be in a particular public location and to watch and listen to what is going on around them. The State’s Attorney concedes that the ACLU’s observers may lawfully watch and listen to the officers’ public communications, take still photographs, make video recordings with microphones switched off, or take shorthand notes and transcribe the conversations or otherwise recon-

12 (...continued) reasonable person, and (b) is not of legitimate concern to the public.” RESTATEMENT (SECOND) OF TORTS § 652D (emphasis added). The communications at issue here are not of this kind.

Case: 11-1286 Document: 45 Filed: 05/08/2012 Pages: 66

48

No. 11-1286

struct the dialogue later. The ACLU may post all of this information on the internet or forward it to news outlets, all without violating the Illinois eavesdropping statute. The State’s Attorney has not identified a substantial governmental interest that is served by banning audio recording of these same conversations. We acknowledge the difference in accuracy and immediacy that an audio recording provides as compared to notes or even silent videos or transcripts. But in terms of the privacy interests at stake, the difference is not sufficient to justify criminalizing this particular method of preserving and publishing the public communications of these public officials.
The State’s Attorney insists that the broad reach of the statute is necessary to “remove[] incentives for interception of private conversations and minimize[] the harm to persons whose conversations have been illegally intercepted.” At the risk of repeating ourselves, this case has nothing to do with private conversations or surreptitious interceptions. We accept Judge Posner’s point that “private talk in public places is common.” Dissent at 64. But the communications in question here do not fall into this category; they are not conversations that carry privacy expectations even though uttered in public places. Moreover, the ACLU plans to record openly, thus giving the police and others notice that they are being recorded.13

13 We are not suggesting that the First Amendment protects only open recording. The distinction between open and con-
(continued...)

Case: 11-1286 Document: 45 Filed: 05/08/2012 Pages: 66

No. 11-1286

49

The State’s Attorney also argues that the statute endeavors to “[1.] encourage that civilians candidly speak with law enforcement, including those conversations conditioned on confidentiality; [2.] limit opportunities of the general public from gaining access to matters of national and local security; and [3.] reduce the likelihood of provoking persons during officers’ mercurial encounters.” These interests are not threatened here. Anyone who wishes to speak to police officers in confidence can do so; private police-civilian communications are outside the scope of this case. Police discussions about matters of national and local security do not take place in public where bystanders are within earshot; the State’s Attorney has made no effort to connect this lawenforcement concern to the communications at issue here. It goes without saying that the police may take all reasonable steps to maintain safety and control, secure crime scenes and accident sites, and protect the integrity and confidentiality of investigations. While an officer surely cannot issue a “move on” order to a person because he is recording, the police may order bystanders to disperse for reasons related to public safety and order and other legitimate law-enforcement needs. See, e.g., Colten v. Kentucky, 407 U.S. 104, 109 (1972) (rejecting a First Amendment right to congregate on

13 (...continued) cealed recording, however, may make a difference in the intermediate-scrutiny calculus because surreptitious recording brings stronger privacy interests into play. See Bartnicki v. Vopper, 532 U.S. 514, 529 (2001).

Case: 11-1286 Document: 45 Filed: 05/08/2012 Pages: 66

50

No. 11-1286

the side of a highway and “observe the issuance of a traffic ticket”). Nothing we have said here immunizes behavior that obstructs or interferes with effective law enforcement or the protection of public safety.
Because the eavesdropping statute is not closely tailored to the government’s interest in protecting conversational privacy, we need not decide whether it leaves open adequate alternative channels for this kind of speech (assuming that this factor—an aspect of speechforum analysis—even applies in this context). See Saieg v. City of Dearborn, 641 F.3d 727, 740 (6th Cir. 2011) (“The requirements for a time, place, and manner restriction are conjunctive.” (citing Watchtower Bible & Tract Soc’y v. Village of Stratton, 536 U.S. 150, 168-69 (2002))). We note, however, that audio and audiovisual recording are uniquely reliable and powerful methods of preserving and disseminating news and information about events that occur in public. Their self-authenticating character makes it highly unlikely that other methods could be considered reasonably adequate substitutes.
Before closing, a brief response to a couple of points in the dissent. Our decision will not, as Judge Posner suggests, “cast[] a shadow over the electronic privacy statutes of other states.” Dissent at 54. As we have explained, the Illinois statute is a national outlier. See Alderman, Police Privacy in the iPhone Era?, supra note 4, at 533-45 (collecting state statutes). Most state electronic privacy statutes apply only to private conversations; that is, they contain (or are construed to include) an expectation-ofprivacy requirement that limits their scope to conversa-

Case: 11-1286 Document: 45 Filed: 05/08/2012 Pages: 66

No. 11-1286

51

tions that carry a reasonable expectation of privacy. Others apply only to wiretapping, and some ban only surreptitious recording. Id. Indeed, the California statute discussed in the dissent is explicitly limited to “confidential communications,” a term specifically defined to exclude the kind of communications at issue here. If the Illinois statute contained a similar limitation, the link to the State’s privacy justification would be much stronger.
The dissent also takes us to task for giving insufficient consideration to the privacy interests of civilians who communicate with the police and for failing to grasp the extent to which people “say things in public that they don’t expect others around them to be listening to, let alone recording for later broadcasting.” Dissent at 63. To the contrary, we have acknowledged the importance of conversational privacy and heeded the basic distinction drawn in Katz that some conversations in public places implicate privacy and others do not. See Katz, 389 U.S. at 351. Again, the privacy interests that may justify banning audio recording are not limited to those that the Fourth Amendment secures against governmental intrusion. But the Illinois eavesdropping statute obliterates the distinction between private and nonprivate by criminalizing all nonconsensual audio recording regardless of whether the communication is private in any sense. 720 ILL. COMP. STAT. 5/14-1(d). If protecting privacy is the justification for this law, then the law must be more closely tailored to serve that interest in order to avoid trampling on speech and press rights.

Case: 11-1286 Document: 45 Filed: 05/08/2012 Pages: 66

52

No. 11-1286

For these reasons, we conclude that the ACLU has a strong likelihood of success on the merits of its First Amendment claim. The Illinois eavesdropping statute restricts an expressive medium used for the preservation and dissemination of information and ideas. On the factual premises of this case, the statute does not serve the important governmental interest of protecting conversational privacy; applying the statute in the circumstances alleged here is likely unconstitutional.
Accordingly, we reverse and remand with the following instructions: The district court shall reopen the case and allow the amended complaint; enter a preliminary injunction enjoining the State’s Attorney from applying the Illinois eavesdropping statute against the ACLU and its employees or agents who openly audio record the audible communications of law-enforcement officers (or others whose communications are incidentally captured) when the officers are engaged in their official duties in public places; and conduct such further proceedings as are consistent with this opinion.
REVERSED AND REMANDED WITH INSTRUCTIONS.

Case: 11-1286 Document: 45 Filed: 05/08/2012 Pages: 66

No. 11-1286

53

POSNER, Circuit Judge, dissenting. The American Civil Liberties Union appeals from the denial of a preliminary injunction in its suit against the Cook County State’s Attorney (that is, the “D.A.” of Cook County, Illinois) to invalidate the Illinois Eavesdropping Act as a violation of freedom of speech (more precisely, freedom to publish or otherwise disseminate other people’s speech). I would affirm the district court.
The Act criminalizes “knowingly and intentionally us[ing] an eavesdropping device for the purpose of hearing or recording all or any part of any conversation” without “the consent of all of the parties to such conversation.” 720 ILCS 5/14-2(a)(1). My colleagues have decided to reverse, and to order the entry of a preliminary injunction against enforcement of the Eavesdropping Act. But why a preliminary injunction? The opinion gives no indication of what argument or evidence presented on remand might allow the district court again to uphold the Act.
The invalidation of a statute on constitutional grounds should be a rare and solemn judicial act, done with reluctance under compulsion of clear binding precedent or clear constitutional language or—in the absence of those traditional sources of guidance—compelling evidence, or an overwhelming gut feeling, that the statute has intolerable consequences. The law invalidated today is not an outdated one left on the books by legislative inertia, like many of the laws invalidated by the Supreme Court in famous cases such as Griswold v. Connecticut, 381 U.S. 479 (1965). In its present form it

Case: 11-1286 Document: 45 Filed: 05/08/2012 Pages: 66

54

No. 11-1286

dates only from 1994. It is stricter than provisions found in the laws governing electronic eavesdropping in most other states because it requires both parties to consent to a recording of their conversation. Maybe it’s too strict in forbidding nonconsensual recording even when done in defense of self or others, as when the participant in a conversation records it in order to create credible evidence of blackmail, threats, other forms of extortion, or other unlawful activity, as in Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011). But that feature of the statute is irrelevant. The ACLU insists on, and the majority opinion endorses, the right to record conversations to which police officers are parties even if no party consents to the recording, as long as the officers are performing public duties (as distinct from talking with one another on a private topic) in a public place and speaking loudly enough to be heard by a person who doesn’t have special equipment for amplifying sound—in other words, a person standing nearby.
Our ruling casts a shadow over electronic privacy statutes of other states as well, to the extent that they can be interpreted to require the consent of at least one party to a conversation to record it even though the conversation takes place that in a public place, if the conversation could nevertheless reasonably be thought private by the parties. The statutes of several states are so openended that they could easily be found invalid under the approach taken in the majority opinion. See Alaska Stat. Ann. § 42.20.310; Ark. Code. Ann. § 5-60-120; Cal. Penal Code § 632(c); Mich. Comp. Laws Ann.

Case: 11-1286 Document: 45 Filed: 05/08/2012 Pages: 66

No. 11-1286

55

§ 750.539c; N.D. Cent. Code. Ann. § 12.1-15-02. The California statute is illustrative. It states that “the term ‘confidential communication’ includes any communication carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties thereto, but excludes a communication made in a public gathering or in any legislative, judicial, executive or administrative proceeding open to the public, or in any other circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded.” The words are clear, the meaning is clear, but the application is unclear. Should a conversation in a public place, but intended to be private, be thought a “communication that any party desires to be confined to the parties”? It is both intended to be private and remote from a communication made in a “public gathering,” a term that from its placement connotes a public meeting of some sort. But what of the exclusion of private communications that the parties “may reasonably expect . . . may be overheard or recorded”? That fogs the issue of which private communications are protected. To read the statute literally would exclude all private communications, for any private communication can be overheard and recorded, even if it is a conversation in a closed room.
A number of state privacy statutes tee off from the statement in Katz v. United States, 389 U.S. 347, 351 (1967), that “what a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. But what he seeks to

Case: 11-1286 Document: 45 Filed: 05/08/2012 Pages: 66

56

No. 11-1286

preserve as private, even in an area accessible to the public, may be constitutionally protected.” See, e.g., Fla. Stat. § 934.02(2); Ohio Rev. Code Ann. § 2933.51(B); Texas Penal Code § 16.02(b)(1), incorporating Tex. Code Crim. P. art. 18.20 § 1(1); cf. 18 U.S.C. § 2510(2). The police in Katz had recorded the defendant’s phone call, made in a public telephone booth, by secretly fastening a microphone to the booth, and the Court held that the phone call violated the Fourth Amendment because the police had no warrant. Suppose the telephone booth had had no door, or that though it had a door the booth was not soundproof and someone standing five feet away could hear the conversation. Or suppose a police officer is talking in a low voice to a crime victim on a crowded sidewalk; there are people within earshot but the conversants reasonably assume that no one is listening, though they notice someone looking at his cell phone and the recorder in the cell phone might be turned on. We can’t predict the impact of today’s decision on the laws of most other states.
The ACLU particularly wants to record conversations to which a police officer is a party during demonstrations in public places, such as the march protesting the start of the second Iraq war that was before us in Vodak v. City of Chicago, 639 F.3d 738 (7th Cir. 2011). That is its particular desire, but if its constitutional argument is correct, anyone has a constitutional right to record all such conversations, not just groups like the ACLU, and journalists, because neither the ACLU nor the press has greater First Amendment rights than other

Case: 11-1286 Document: 45 Filed: 05/08/2012 Pages: 66

No. 11-1286

57

members of the public. Citizens United v. Federal Election Commission, 130 S. Ct. 876, 905-06 (2010); Lovell v. City of Griffin, 303 U.S. 444, 452 (1938); see generally Eugene Volokh, “Freedom for the Press as an Industry, or for the Press as a Technology? From the Framing to Today,” 160 U. Pa. L. Rev. 459 (2012). Nor would the right be limited to political demonstrations; it would extend to all audible police conversations in public places, whether outdoors on sidewalks and in parks or indoors in the lobbies or other public spaces of courthouses and other government buildings.
Judges asked to affirm novel “interpretations” of the First Amendment should be mindful that the constitutional right of free speech, as construed nowadays, is nowhere to be found in the Constitution. The relevant provision of the First Amendment merely forbids Congress to abridge free speech, which as understood in the eighteenth century meant freedom only from censorship (that is, suppressing speech, rather than just punishing the speaker after the fact). A speaker could be prosecuted for seditious libel, for blasphemy, and for much other reprobated speech besides, but in a prosecution he would at least have the protection of trial by jury, which he would not have if hauled before a censorship board; and his speech or writing would not have been suppressed, which is what censorship boards do. Protection against censorship was the only protection that the amendment was understood to create. Patterson v. Colorado, 205 U.S. 454, 461-62 (1907) (Holmes, J.); Blue Canary Corp. v. City of Milwaukee, 251 F.3d 1121, 1123 (7th Cir. 2001); Akhil Reed Amar, The Bill of Rights: Creation

Case: 11-1286 Document: 45 Filed: 05/08/2012 Pages: 66

58

No. 11-1286

and Reconstruction 23-24 (1998); cf. 4 William Blackstone, Commentaries on the Laws of England 150-53 (1769).
The limitation of the amendment to Congress, and thus to federal restrictions on free speech (the First Amendment does not apply to state action), and to censorship is the original understanding. Judges have strayed so far from it that further departures should be undertaken with caution. Even today, with the right to free speech expanding in all directions, it remains a partial, a qualified, right. To make it complete would render unconstitutional defamation law, copyright law, trade secret law, and trademark law; tort liability for wiretapping, other electronic eavesdropping, and publicly depicting a person in a “false light”; laws criminalizing the publication of military secrets and the dissemination of child pornography; conspiracy law (thus including much of antitrust law); prohibitions of criminal solicitation, threats and fighting words, securities fraud, and false advertising of quack medical remedies; the regulation of marches, parades, and other demonstrations whatever their objective; limitations on free speech in prisons; laws limiting the televising of judicial proceedings; what little is left of permitted regulation of campaign expenditures; public school disciplining of inflammatory or disruptive student speech; the attorneyclient, spousal, and physician-patient privileges in cases in which an attorney or spouse or physician would like to speak but is forbidden by the privilege to do so; laws making medical records confidential; and prohibitions against the public disclosure of jurors’ names in cases in which jurors might be harassed. All these legal

Case: 11-1286 Document: 45 Filed: 05/08/2012 Pages: 66

No. 11-1286

59

restrictions of free speech are permitted (some because they may actually increase the amount of speech, a point I’ll come back to). The question in this case is whether a state, to protect both privacy and public safety, should be allowed in addition to forbid the recording of conversations between police officers and members of the public in a public place unless both parties to the conversation consent to being recorded for posterity.
A person who is talking with a police officer on duty may be a suspect whom the officer wants to question; he may be a bystander whom the police are shooing away from the scene of a crime or an accident; he may be an injured person seeking help; he may be a crime victim seeking police intervention; he may be asking for directions; he may be arguing with a police officer over a parking ticket; he may be reporting a traffic accident. In many of these encounters the person conversing with the police officer may be very averse to the conversation’s being broadcast on the evening news or blogged throughout the world. In some instances such publicity would violate the tort right of privacy, a conventional exception to freedom of speech as I have noted. Restatement (Second) of Torts §§ 652A, 652D (1977) (“unreasonable publicity given to [another person’s] private life”); Wolfe v. Schaefer, 619 F.3d 782, 784 (7th Cir. 2010); Reuber v. Food Chemical News, Inc., 925 F.2d 703, 71819 (4th Cir. 1991) (en banc) (“publiciz[ing] private facts in a highly offensive manner about an issue not of public concern”); Miller v. Motorola, Inc., 560 N.E.2d 900

Case: 11-1286 Document: 45 Filed: 05/08/2012 Pages: 66

60

No. 11-1286

(Ill. App. 1990). This body of law is endangered by today’s ruling.
Privacy is a social value. And so, of course, is public safety. The constitutional right that the majority creates is likely to impair the ability of police both to extract information relevant to police duties and to communicate effectively with persons whom they speak with in the line of duty. An officer may freeze if he sees a journalist recording a conversation between the officer and a crime suspect, crime victim, or dissatisfied member of the public. He may be concerned when any stranger moves into earshot, or when he sees a recording device (even a cell phone, for modern cell phones are digital audio recorders) in the stranger’s hand. To distract police during tense encounters with citizens endangers public safety and undermines effective law enforcement.
The majority opinion disclaims any intention of “immuniz[ing] behavior that obstructs or interferes with effective law enforcement.” I am not reassured. A fine line separates “mere” recording of a police-citizen encounter (whether friendly or hostile) from obstructing police operations by distracting the officers and upsetting the citizens they are speaking with. Today’s ruling may cause state and federal judicial dockets in Illinois to swell because it will unwittingly encourage police officers to shoo away bystanders, on the authority of cases like Colten v. Kentucky, 407 U.S. 104, 109-10 (1972); cf. City of Houston v. Hill, 482 U.S. 451, 462 n. 11 (1987); King v. Ambs, 519 F.3d 607, 613-15 (6th Cir. 2008), when the

Case: 11-1286 Document: 45 Filed: 05/08/2012 Pages: 66

No. 11-1286

61

officer wants to have a private conversation in a public place.
That the Eavesdropping Act, despite its name, does not punish the bystander who overhears a conversation without recording it does not have the significance that the majority opinion gives it. There is an important difference, well articulated in Justice Harlan’s dissent in United States v. White, 401 U.S. 745, 787-89 (1971) (footnotes omitted), between human and mechanical eavesdropping:
The impact of the practice of third-party bugging, must, I think, be considered such as to undermine that confidence and sense of security in dealing with one another that is characteristic of individual relationships between citizens in a free society. It goes beyond the impact on privacy occasioned by the ordinary type of “informer” investigation . . . . The argument of the plurality opinion, to the effect that it is irrelevant whether secrets are revealed by the mere tattletale or the transistor, ignores the differences occasioned by third-party monitoring and recording which insures full and accurate disclosure of all that is said, free of the possibility of error and oversight that inheres in human reporting.
Authority is hardly required to support the proposition that words would be measured a good deal more carefully and communication inhibited if one suspected his conversations were being transmitted and transcribed. Were third-party bugging a prevalent practice, it might well smother that spontaneity—reflected in frivolous, impetuous, sacrilegious,

Case: 11-1286 Document: 45 Filed: 05/08/2012 Pages: 66

62

No. 11-1286

and defiant discourse—that liberates daily life. Much off-hand exchange is easily forgotten and one may count on the obscurity of his remarks, protected by the very fact of a limited audience, and the likelihood that the listener will either overlook or forget what is said, as well as the listener’s inability to reformulate a conversation without having to contend with a documented record. All these values are sacrificed by a rule of law that permits official monitoring of private discourse limited only by the need to locate a willing assistant.
The distinction that Justice Harlan drew between an overheard private conversation recalled from memory and one that is recorded is something everyone feels— and feels more acutely in the electronic age than 41 years ago. Walter Kirn, “Little Brother Is Watching,” New York Times Magazine (Oct. 17, 2010); William Saletan, “Bugged Naked: Webcams, Sex, and the Death of Privacy,” Slate (Oct. 1, 2010); William Safire, “To Stop the Eavesdrop,” New York Times (Dec. 20, 1999). Americans face new challenges to privacy because of the amount of personal information stored and publicly accessible online and the ubiquity of recording devices. Lizette Alvarez, “Spring Break Gets Tamer as World Watches Online,” New York Times (March 16, 2012); Jeffrey Rosen, “The Web Means the End of Forgetting,” New York Times (July 25, 2010); Jonathan Zittrain, “Privacy 2.0,” 2008 U. Chi. Legal Forum 65, 81-91. Lacking relevant expertise, lacking evidence, forced back on intuition, judges should hesitate to invalidate legislative attempts to solve these problems.

Case: 11-1286 Document: 45 Filed: 05/08/2012 Pages: 66

No. 11-1286

63

Police may have no right to privacy in carrying out official duties in public. But the civilians they interact with do. The majority opinion “acknowledge[s] the difference in accuracy and immediacy that an audio recording provides as compared to notes or even silent videos or transcripts” but says that “in terms of the privacy interests at stake, the difference is not sufficient to justify criminalizing this particular method of preserving and publishing the public communications of these public officials” (emphasis in original). The assertion lacks a supporting argument, and by describing the recording as a “method of preserving and publishing the public communications of these public officials” neglects the fact that the recording will publish and preserve what the civilians with whom the police are conversing say, not just what the police say. The further statement that these “are not conversations that carry privacy expectations even though uttered in public places” implies that anything said outdoors is ipso facto public. Yet people often say things in public that they don’t expect others around them to be listening to, let alone recording for later broadcasting, and we are given no reason to think that this is never the case when someone complains to a police officer, or otherwise speaks with one, “in public” in the sense of being in a place in which there are other people about.
Suppose a police detective meets an informant in a park and they sit down on a park bench to talk. A crime reporter sidles up, sits down next to them, takes out his iPhone, and turns on the recorder. The detective and the informant move to the next park bench to continue

Case: 11-1286 Document: 45 Filed: 05/08/2012 Pages: 66

64

No. 11-1286

their conversation in private. The reporter follows them. Is this what the Constitution privileges?
It is small consolation to be told by the majority that “the ACLU plans to record openly, thus giving the police and others notice that they are being recorded” (emphasis in original). All the ACLU means is that it won’t try to hide its recorder from the conversants whom it wants to record, though since the typical recorder nowadays is a cell phone it will be hidden in plain view. A person who doesn’t want his conservation to be recorded will have to keep a sharp eye out for anyone nearby holding a cell phone, which in many urban settings is almost everyone. The ubiquity of recording devices will increase security concerns by distracting the police.
There is more on the state’s side of this case than privacy of communications and the effectiveness of law enforcement—and the more is the same First Amendment interest that the ACLU says it wants to promote. The majority opinion concedes that “conversational privacy” “serves First Amendment interests,” but thinks there can be no conversational privacy when the conversation takes place in a public place; it says that “this case has nothing to do with private conversations.” But private talk in public places is common, indeed ubiquitous, because most people spend a lot of their time in public places; because they rely on their anonymity and on the limited memory of others to minimize the risk of publication; because public places are (paradoxically) often more private than private places

Case: 11-1286 Document: 45 Filed: 05/08/2012 Pages: 66

No. 11-1286

65

(imagine if detectives could meet with their informants only in police stations); and because eavesdropping on strangers is actually rather uncommon because it is so difficult in most cases to understand a conversation between strangers. “Anyone who’s overheard conversations on the street or in a restaurant knows that conversations between strangers are often unintelligible. There is the public language we employ when talking to strangers and the elliptical private language that we use when talking to people whom we know. Strangers need an interpreter . . . .” United States v. Curescu, 674 F.3d 735, 740 (7th Cir. 2012).
I disagree with the majority that “anyone who wishes to speak to police officers in confidence can do so,” and “police discussions about matters of national and local security do not take place in public where bystanders are within earshot.” Forget national security; the people who most need police assistance and who most want their conversations kept private are often the people least able to delay their conversation until they reach a private place. If a person has been shot or raped or mugged or badly injured in a car accident or has witnessed any of these things happening to someone else, and seeks out a police officer for aid, what sense would it make to tell him he’s welcome to trot off to the nearest police station for a cozy private conversation, but that otherwise the First Amendment gives passersby the right to memorialize and publish (on Facebook, on Twitter, on YouTube, on a blog) his agonized plea for help? And as in our informant example, many of the persons whom police want to talk to do not want to be seen visiting police stations.

Case: 11-1286 Document: 45 Filed: 05/08/2012 Pages: 66

66

No. 11-1286

Accuracy is a social value, and a recording of a conversation provides a more accurate record of the conversation than the recollection of the conversants: more accurate, and also more truthful, since a party to a conversation, including a police officer, may lie about what he heard or said. But on the other side of the balance are the inhibiting effect of nonconsensual recording of conversations on the number and candor of conversations (and hence on values that the First Amendment protects); the baleful effect on privacy; the negative effect on law enforcement; and the litigation likely to be engendered by police officers’ shooing away intruders on their private conversations with citizens. These are significant social costs, and the majority opinion offers no basis in fact or history, in theory or practice, in constitutional text or judicial precedent, for weighting them less heavily than the social value of recorded eavesdropping.

5-8-12

 
 AO 450 (Rev. 01/0C9) aJsudeg:m1en:t1in0a-Ccivvi-l0A5ct2ion35 Document #: 34 Filed: 10/28/10 Page 1 of 1 PageID #:389
UNITED STATES DISTRICT COURT for the
Northern District of Illinois

The A~~r.ica~..9vil Liberties Union of Illinois,

)

Plaintiff
v. Anita Alvarez, Cook County State's Attorney, in her off}~ial capacity
Defendant

) ) ) )

Civil Action No. 10 c 5235

JUDGMENT IN A CIVIL ACTION The court has ordered that (check one):

D the plaintiff (name)

recover from the

------------------------~--------------------------

defendant (name) --------------------------------------------------------- the amount of

dollars ($

), which includes prejudgment

interest at the rate of

%, plus postjudgment interest at the rate of

%, along with costs.

-------

------

D the plaintiff recover nothing, the action be dismissed on the merits, and the defendant (name)

------------------------ recover costs from the plaintiff (name)

[!]other: The case is dismissed without prejudice.

This action was (check one):

D tried by a jury with Judge ---------------------------------------·- presiding, and the jury has
rendered a verdict.
D tried by Judge ----------------------------------------- without a jury and the above decision
was reached.

GJ decided by Judge

Suzanne B. Conlon

on a motion to dismiss

Date:

I 0/ 28/ 2010

Michael W. Dobbins, Clerk of Court
a}pu
Is! Alberta Rone, I?_t:puty ~~~r_k _____________________

 
 Case: 1:10-cv-05235 Document #: 55 Filed: 06/22/12 Page 1 of 1 PageID #:658 Case: 11-1286 Document: 00711788006 Filed: 06/22/2012 Pages: 1

United States Court of Appeals
ForȱtheȱSeventhȱCircuit Chicago,ȱIllinoisȱȱ60604
Juneȱ14,ȱ2012
Before
RICHARDȱA.ȱPOSNER,ȱCircuitȱJudge
DIANEȱS.ȱSYKES,ȱCircuitȱJudge
DAVIDȱF.ȱHAMILTON,ȱCircuitȱJudge

No.ȱ11Ȭ1286
AMERICANȱCIVILȱLIBERTIESȱUNION OFȱILLINOIS,
PlaintiffȬAppellant,
v.
ANITAȱALVAREZ, DefendantȬAppellee.

AppealȱfromȱtheȱUnitedȱStatesȱDistrict CourtȱforȱtheȱNorthernȱDistrictȱof Illinois,ȱEasternȱDivision.
No.ȱ10ȱCȱ5235
SuzanneȱB.ȱConlon,ȱ Judge.

OȱRȱDȱEȱR
Onȱconsiderationȱofȱtheȱpetitionȱforȱrehearingȱandȱforȱrehearingȱenȱbanc,ȱnoȱjudgeȱin activeȱserviceȱhasȱrequestedȱaȱvoteȱonȱtheȱpetitionȱforȱrehearingȱenȱbanc,1ȱandȱallȱofȱthe judgesȱonȱtheȱoriginalȱpanelȱhaveȱvotedȱtoȱdenyȱrehearing.ȱȱItȱisȱthereforeȱorderedȱthatȱthe petitionȱforȱrehearingȱandȱforȱrehearingȱenȱbancȱisȱDENIED.

1CircuitȱJudgesȱIlanaȱDiamondȱRovnerȱandȱAnnȱClaireȱWilliamsȱtookȱnoȱpartȱinȱthe considerationȱofȱtheȱpetitionȱforȱrehearingȱenȱbanc.

 
 Case: 1:10-cv-05235 Document #: 65 Filed: 07/06/12 Page 1 of 2 PageID #:787

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

THE AMERICAN CIVIL LIBERTIES )

UNION OF ILLINOIS,

)

)

Plaintiff,

)

)

v.

)

)

ANITA ALVAREZ, Cook County State's )

Attorney, in her official capacity,

)

)

Defendant.

)

Case No. 1:10-cv-05235 Judge Sharon Johnson Coleman

PRELIMINARY INJUNCTION AND OTHER RELIEF Pursuant to FRCP 65(d)(1)(A) and Am. Civil Liberties Union of Illinois v. Alvarez, 679 F.3d 583, 2012 WL 1592618 (7th Cir. 2012), this Court hereby finds and orders: 1. The amended complaint (Dkt. 36-1) shall be allowed and entered. 2. Pursuant to the mandate of the Seventh Circuit, the ACLU has demonstrated: (1) a reasonable likelihood of success on the merits for its First Amendment claim; (2) no adequate remedy at law; (3) that it will suffer irreparable harm because it involves the loss of First Amendment freedoms which, absent injunctive relief, outweighs any irreparable harm to defendant Anita Alvarez (“Alvarez”) if the injunction is granted; and (4) the injunction will not harm the public interest because the public interest is not harmed by preliminarily enjoining the enforcement of a statute that is probably unconstitutional. 3. Accordingly, Alvarez, her officers, agents, servants, employees, and attorneys, and any other person acting in concert or participation or privity with Alvarez, are preliminarily enjoined from prosecuting plaintiffs The American Civil Liberties Union of Illinois (the “ACLU”), Colleen Connell, and Allison Carter, and other ACLU employees as directed by

Case: 1:10-cv-05235 Document #: 65 Filed: 07/06/12 Page 2 of 2 PageID #:788
Connell, under the Illinois Eavesdropping Act, 720 ILCS 5/14, for openly audio recording police officers, and civilians talking to such officers, without the consent of the officers and civilians, when (a) the officers are performing their public duties, (b) the officers are in public places, (c) the officers are speaking at a volume audible to the unassisted ear of the person making the recording, and (d) the manner of recording is otherwise lawful.
Dated: July 6, 2012
___________________________________ SHARON JOHNSON COLEMAN UNITED STATES DISTRICT JUDGE

 
 Case: 1:10-cv-05235 Document #: 66 Filed: 07/10/12 Page 1 of 18 PageID #:789

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

THE AMERICAN CIVIL LIBERTIES )

UNION OF ILLINOIS, COLLEEN

)

CONNELL, AND ALLISON CARTER, )

)

Plaintiffs,

)

)

v.

)

)

ANITA ALVAREZ, Cook County State’s )

Attorney, in her official capacity,

)

)

Defendant.

)

Case No. 10 CV 5235
Judge Sharon Johnson Coleman Magistrate Judge Sidney I. Schenkier

AMENDED COMPLAINT
Plaintiffs the American Civil Liberties Union of Illinois (“the ACLU”), Colleen Connell, and Allison Carter, by their attorneys, as their Amended Complaint against defendant Anita Alvarez, in her official capacity as the Cook County State’s Attorney, state as follows:
I. NATURE OF THE CASE 1. This is a civil rights action challenging the constitutionality of the Illinois Eavesdropping Act, 720 ILCS 5/14 (“the Act”), as applied to the audio recording of police officers, without the consent of the officers, when (a) the officers are performing their public duties, (b) the officers are in public places, (c) the officers are speaking at a volume audible to the unassisted human ear, and (d) the manner of recording is otherwise lawful. This application of the Act violates the First Amendment to the U.S. Constitution. The plaintiffs seek declaratory and injunctive relief pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 2201 et seq.

1

Case: 1:10-cv-05235 Document #: 66 Filed: 07/10/12 Page 2 of 18 PageID #:790
2. For nearly a century, the ACLU has sought to protect and to expand the civil liberties and civil rights of all persons in Illinois. It has engaged in this constitutionally protected pursuit through public education, including publication through a variety of media, and advocacy before courts, legislatures, and administrative agencies. The corollary right to gather, receive, record, and disseminate information on matters of public importance relating to civil liberties and civil rights is integral to, and a necessary component of, these other protected activities.
3. In the exercise of these rights, the ACLU (acting through its employees); Connell (as the ACLU’s Executive Director and through her direct supervision of ACLU employees); and Carter (as the ACLU’s Senior Field Manager and in performing her employment duties), have incorporated the use of common audio/video recording devices into the ACLU’s ongoing monitoring of police in public places. Specifically, but for the Act, the ACLU, Connell, and Carter are presently prepared and would immediately audio record police officers, without the consent of the officers, when (a) the officers are performing their public duties, (b) the officers are in public places, (c) the officers are speaking at a volume audible to the unassisted human ear, and (d) the manner of recording is otherwise lawful (hereinafter “the ACLU program”). The ACLU, Connell, and Carter will carry out this ACLU program in Cook County, Illinois. The ACLU, Connell, and Carter will disseminate such recordings when appropriate to the public, and also use these recordings to petition the government for redress of grievances through its advocacy program.
4. The Act makes audio recording police officers in these circumstances a felony. Due to a reasonable fear of arrest and prosecution under the Act by defendant,
2

Case: 1:10-cv-05235 Document #: 66 Filed: 07/10/12 Page 3 of 18 PageID #:791
the ACLU, Connell, and Carter are presently refraining from engaging in audio recording of police in public pursuant to the ACLU program. This suit seeks a declaration that such conduct is constitutionally protected, and an injunction against enforcement of the Act as applied to the ACLU program.
II. JURISDICTION AND VENUE 5. This Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343(3) and (4). 6. Venue is proper in this judicial district pursuant to 28 U.S.C. § 1391(b).
III. THE PARTIES 7. The ACLU is a non-profit, non-partisan, statewide organization with more than 20,000 members and supporters dedicated to protecting and expanding the civil rights and civil liberties guaranteed by the Constitutions and civil rights laws of the United States and the State of Illinois. The ACLU is a not-for-profit corporation incorporated under the laws of the State of Illinois. In all matters relevant to this Amended Complaint, the ACLU acts by and through its staff of approximately 25 salaried employees who are under the direction of the ACLU’s Executive Director, Connell. 8. Connell is the ACLU’s Executive Director. In this capacity, she directs employees of the ACLU in creating and disseminating communications which further the ACLU’s goals of protecting and expanding civil liberties and civil rights. In this capacity, but for the Act, Connell immediately would direct ACLU employees, including Carter, to audio record public police activity as part of carrying out the ACLU program.
3

Case: 1:10-cv-05235 Document #: 66 Filed: 07/10/12 Page 4 of 18 PageID #:792
9. Carter is the ACLU’s Senior Field Manager. In this capacity, she has been selected by Connell to perform the actual audio/video recording of police as part of the ACLU program.
10. Alvarez is the Cook County State’s Attorney. In this capacity, she is charged with the enforcement of the criminal laws of the State of Illinois, including the Act. She is sued solely in her official capacity for purposes of declaratory and injunctive relief.
IV. FACTS A. The right to gather, receive, record, and disseminate information
11. The right to gather, receive, record, and disseminate information is grounded in the Free Speech Clause of the First Amendment. This right is further grounded in:
(a) the Petition Clause of the First Amendment, if the purpose of gathering, receiving, or recording the information is to use it to petition government for redress of grievances; and
(b) the Free Press Clause of the First Amendment, if the purpose of gathering, receiving, or recording the information is to publish and disseminate it to other people.
12. This First Amendment right to gather, receive, record, and disseminate information includes the right to audio record police officers in the circumstances described herein. B. The ACLU’s exercise of its right to gather, receive, record, and disseminate
information 13. In pursuing its objectives of protecting and expanding civil rights and civil
4

Case: 1:10-cv-05235 Document #: 66 Filed: 07/10/12 Page 5 of 18 PageID #:793
liberties, the ACLU regularly gathers, receives, and records information from numerous sources, including by observing events in public places.
14. After gathering, receiving, and recording information, the ACLU regularly publishes and disseminates that information to the general public, and regularly presents that information to government bodies as part of the ACLU’s efforts to petition the government for redress of grievances.
15. The ACLU regularly engages in its own expressive activity in public places, and regularly records its own expressive activity at these events. C. The ACLU program
16. The ACLU presently, as it has in the past, monitors and observes police conduct in public places. In doing so, the ACLU seeks not only to observe and record the manner in which government employees perform their duties, but also to improve police practices, and to deter and detect any unlawful police interference with constitutional liberties. For example, the ACLU often monitors and observes police conduct at expressive activity in public places, including when the ACLU is engaged in its own expressive activity.
17. The ACLU has monitored, and will monitor, police at public demonstrations, protests, parades, assemblies, speeches, leafleting, and similar occasions and events. Such expressive events are sometimes planned, and on other occasions are spontaneous. The ACLU is presently able to, and intends to, monitor police activity both at planned expressive events and at spontaneous expressive events.
5

Case: 1:10-cv-05235 Document #: 66 Filed: 07/10/12 Page 6 of 18 PageID #:794
18. The ACLU often gathers, receives, and records information about police practices, and then publishes and disseminates that information to the general public, and uses that information to petition government for redress of grievances.
19. But for their reasonable fear of prosecution by Alvrarez under the Act (see infra ¶ 25), the ACLU, Connell, and Carter would immediately commence the aforementioned program of audio recording police officers in public, and use and disseminate such recordings. This program includes recording police conduct at expressive activity in public places, including when the ACLU is engaged in its own expressive activity.
20. Connell, the ACLU’s Executive Director, has approved the expanded program of audio recording police as described above in paragraph 3. Connell joins with the ACLU in seeking to expand and protect civil liberties by implementing the ACLU program of monitoring police by audio recording police in public places to advance police accountability. But for the Act, Connell would immediately authorize and direct Carter (and other ACLU employees) to engage in such audio recording, but for her reasonable fear of imminent prosecution by Alvarez under the Act of Carter (the ACLU employee who made the recording), of Connell (the ACLU Executive Director who authorized and directed the recording), and of the ACLU itself. See infra ¶ 25.
21. Carter, the ACLU Senior Field Manager, will audio record police pursuant to the ACLU program described above in paragraph 3 when authorized and directed to do so by Connell. Carter joins with the ACLU and Connell in seeking to expand and protect civil liberties by implementing the ACLU program of monitoring police by audio recording police in public places to advance police accountability. Carter has a
6

Case: 1:10-cv-05235 Document #: 66 Filed: 07/10/12 Page 7 of 18 PageID #:795
reasonable fear of prosecution under the Act, should she audio record police officers as prescribed by the ACLU program. See infra ¶ 25.
22. On two recent occasions, the ACLU would have audio recorded police officers performing their public duties in public places, but for the reasonable threat of prosecution by Alvarez under the Act. See infra ¶ 25. On both occasions, ACLU employees did monitor police, but without audio recording. Specifically:
(a) On June 10, 2010, an ACLU employee monitored a Chicago Police Department program of suspicionless container searches on Chicago’s lakefront; and
(b) On November 8, 2010, Carter monitored a protest held in Chicago at the James R. Thompson Center concerning the killing of Iraqi Christians.
23. But for the reasonable threat of prosecution by Alvarez under the Act (see infra ¶ 25), Connell would authorize and direct Carter to audio record police, and Carter would audio record police, at planned and spontaneous events in Cook County in the future, including but not limited to the annual protest in spring 2011 in downtown Chicago in opposition to U.S. military policy in Iraq and Afghanistan.
24. The Act, by preventing the ACLU from implementing the ACLU program, directly and substantially prevents the ACLU from engaging in its important organizational activity of monitoring police conduct, and directly and substantially frustrates the ACLU’s important organizational goal of advancing police accountability, and thereby protecting civil liberties.
7

Case: 1:10-cv-05235 Document #: 66 Filed: 07/10/12 Page 8 of 18 PageID #:796
D. The ACLU’s reasonable fear of prosecution 25. For the following reasons, the ACLU, Connell, and Carter have a
reasonable fear that if they implement the ACLU program, Alvarez will prosecute them pursuant to the Act:
(a) The Act on its face prohibits non-consensual audio recording of non-private conversations. See infra ¶ 32.
(b) The Illinois Legislature intended the Act to prohibit audio recording of non-private conversations with on-duty police. See infra ¶ 33.
(c) Alvarez is now prosecuting two cases under the Act in which civilians allegedly audio recorded on-duty police. See infra ¶ 39.
(d) In the original Complaint in this suit, the ACLU described the ACLU program of audio recording police as set forth above in paragraph 3. Alvarez has not in this litigation, or otherwise, indicated that the ACLU program does not violate the Act, or that Alvarez would not prosecute the ACLU or its employees for carrying out the ACLU program by audio recording police officers performing their duties in public. To the contrary, Alvarez stated in her motion to dismiss: “Plaintiff is precluded from audio recording any conversations without consent of all parties to such conversation, including encounters between law enforcement and citizens.” Dkt. No. 19, at p. 7.
(e) In the last six years, at least seven other State’s Attorneys have prosecuted at least nine other civilians under the Act for audio recording on-duty police, including one prosecution of civilians undertaking a program of monitoring on-duty police to promote police accountability. See infra ¶ 40.
8

Case: 1:10-cv-05235 Document #: 66 Filed: 07/10/12 Page 9 of 18 PageID #:797
(f) The Illinois criminal statutes impose criminal liability on persons who solicit criminal activity by other persons. See, e.g., 720 ILCS 5/5-1 (providing that for purposes of the Illinois criminal statutes, a person is criminally liable when they are “legally accountable” for the criminal misconduct of another); 720 ILCS 5/5-2(c) (providing that a person has such liability if they “solicit” criminal acts by another person). Thus, if Connell authorizes and directs Carter to audio record police, and Carter does so, then Alvarez can prosecute Connell, as well as Carter.
(g) The Illinois criminal statutes impose criminal liability on private corporations that commit criminal activity directed by their top officials. See, e.g., 720 ILCS 5/14-2 (prohibiting certain audio recording by a “person”); 720 ILCS 5/2-15 (providing that for purposes of the Illinois criminal statutes, a “person” includes a “private corporation”); 720 ILCS 5/5-4 (a)(2) (providing that for purposes of the Illinois criminal statutes, a corporation may be prosecuted for crimes authorized by high managerial agents). Thus, if Connell (the ACLU’s Executive Director) authorizes and directs Carter to audio record police, and Carter does so, then Alvarez can prosecute the ACLU (a private corporation), as well as Carter and Connell.
(h) The Office of the Cook County State’s Attorney repeatedly has prosecuted private corporations for criminal offenses. See, e.g., People v. Universal Public Transp., Inc., 401 Ill. App. 3d 179, 192 (1st Dist. 2010) (corporation convicted for fraud); People v. Bohne, 312 Ill. App. 3d 705, 706 (1st Dist. 2000) (corporation indicted for tax impropriety); People v. O’Neil, 194 Ill. App. 3d 79, 88-89 (1st Dist. 1990) (corporation indicted for involuntary manslaughter).
9

Case: 1:10-cv-05235 Document #: 66 Filed: 07/10/12 Page 10 of 18 PageID #:798
E. A benefit of audio recording the police 26. While most police officers perform their duties in a lawful manner, some
police officers abuse their authority. 27. In many cases, the only evidence of what happened during an encounter
between police officers and civilians – including whether police officers and/or civilians behaved lawfully – will be the conflicting testimony of police officers and civilians.
28. In many cases, audio recordings of police-civilian encounters will provide critical evidence that is not available from testimony, photographs, or silent videos.
29. Indeed, on many occasions in the last decade, audio/video recordings made by civilians of police-civilian encounters have helped to resolve testimonial disputes about alleged police misconduct. Sometimes these audio/video recordings have tended to disprove allegations of police misconduct, and sometimes they have tended to prove allegations of police misconduct.
30. Federal, state, and local law enforcement agencies have deployed tens of thousands of audio/video recording devices for purposes of documenting certain interactions between police officers and civilians. For example, many police squad cars are equipped with audio/video recording devices that document traffic stops. One law enforcement purpose of these audio/video recording devices is to deter and detect police misconduct, and to disprove false accusations of police misconduct.
31. Indeed, as more fully explained below, see infra ¶¶ 35-36, the Illinois Eavesdropping Act exempts audio/video recordings made by police of conversations between police and civilians during traffic stops, in order to protect both the civilians and the officers from false testimony about these conversations. There is no constitutionally
10

Case: 1:10-cv-05235 Document #: 66 Filed: 07/10/12 Page 11 of 18 PageID #:799
valid basis for allowing police to make such audio recordings, while criminalizing the conduct of civilians who do so. F. The Illinois Eavesdropping Act
32. The Illinois Eavesdropping Act criminalizes the use of a machine to record certain conversations – even if the conversations are not private. Specifically:
(a) The Act provides that “[a] person commits eavesdropping when he . . . [k]nowingly and intentionally uses an eavesdropping device for the purpose of hearing or recording all or any part of any conversation . . . unless he does so . . . with the consent of all of the parties to such conversation . . . .” 720 ILCS 5/14-2(a)(1)(A).
(b) The Act defines “conversation” to mean “any oral communication between 2 or more persons regardless of whether one or more of the parties intended their communication to be of a private nature under circumstances justifying that expectation.” 720 ILCS 5/14-1(d) (emphasis added).
(c) The Act defines “eavesdropping device” to include “any device capable of being used to hear or record oral conversation . . . .” 720 ILCS 5/14-1(a).
(d) The Act provides that a first offense of eavesdropping is a Class 4 felony, 720 ILCS 5/14-4(a), which is punishable by a sentence of imprisonment of one to three years, 730 ILCS 5/5-4.5-45.
33. The legislative purpose of extending the Act to non-private conversations was to criminalize civilian audio recordings of police officers performing their public duties in public places. Specifically:
(a) In 1986, in People v. Beardsley, 115 Ill. 2d 47 (Ill. 1986), the Illinois Supreme Court held that an element of the criminal offense created by the then-
11

Case: 1:10-cv-05235 Document #: 66 Filed: 07/10/12 Page 12 of 18 PageID #:800
existing version of the Act was “circumstances which entitle [the parties to a conversation] to believe that the conversation is private and cannot be heard by others who are acting in a lawful manner.” 115 Ill. 2d at 53 (emphasis added). The Beardsley case involved a motorist who audio recorded a police officer during a traffic stop. Id. at 48-49. The Court held that this motorist did not violate the Act, because the conversation was not private.
(b) Eight years later, in 1994, Illinois amended the Act with Public Act 88-677, also known as House Bill 356. This new law adopted the current definition of “conversation,” to wit: “any oral communication between 2 or more persons regardless of whether one or more of the parties intended their communication to be of a private nature under circumstances justifying that expectation.”
(c) On May 19, 1994, during Senate floor debate regarding this bill, the Senate sponsor stated that the bill had earlier passed out of that chamber “to reverse the Beardsley eavesdropping case . . . .” See Tr. at p. 42.
34. In this regard, the current Illinois Eavesdropping Act is abnormal. The federal ban on audio recording certain conversations, and the vast majority of such state bans, extend only to private conversations – as the Illinois Eavesdropping Act did, before it was amended in 1994 for the purpose of reversing the Beardsley decision. Only a handful of states have extended their eavesdropping bans to non-private conversations. And most of those states, unlike Illinois, do not extend their prohibitions to open and obvious recording, as opposed to secret recording.
12

Case: 1:10-cv-05235 Document #: 66 Filed: 07/10/12 Page 13 of 18 PageID #:801
35. The Illinois Eavesdropping Act exempts certain audio recordings by law enforcement officials of conversations between law enforcement officials and members of the general public. Examples include:
(a) Conversations recorded “simultaneously with the use of an in-car video camera” during “traffic stops, pedestrian stops,” and similar events. 720 ILCS 5/14-3(h).
(b) Conversations with a civilian who is “an occupant of a police vehicle.” 720 ILCS 5/14-3(h-5).
(c) Conversations recorded “during the use of a taser or similar weapon or device” if the device is equipped with audio recording technology. 720 ILCS 5/14-3(h-10).
36. The legislative purpose of the statutory exemptions in the preceding paragraph is to deter and detect police misconduct, and rebut false accusations of police misconduct. Specifically:
(a) In 2009, Illinois amended the Act with Public Act 96-670, also known as House Bill 1057. This new law amended the foregoing exemption (h) to its current form, and created the foregoing exemptions (h-5) and (h-10).
(b) On April 2, 2009, during House debate regarding this bill, the House sponsor stated as follows the legislative purpose:
When there’s audio, then there is no question as to what was said or what wasn’t said and if someone is accused of doing something or saying something, this is the proof that they would have as a citizen also, not only for protection of law enforcement, but for the citizens to have the proof in hand as to what actually happened at that particular [moment].
13

Case: 1:10-cv-05235 Document #: 66 Filed: 07/10/12 Page 14 of 18 PageID #:802
See Tr. at pp. 83-84. See also id. at p. 84 (stating that such audio recording provides “protection for both” police and civilians).
37. Police officers performing their public duties in public places, and speaking at a volume audible to the unassisted human ear, have no reasonable expectation that the words they speak are private and will not be recorded, published, and disseminated. G. Application of the Act to audio recording the police
38. The Act is not moribund, and it is commonly enforced in the context at issue here in Cook County, as well as other Illinois counties. As intended by the Illinois General Assembly, police officers and prosecutors have used the Act to arrest and prosecute members of the general public who made audio recordings of police officers performing their public duties in public places and speaking at a volume audible to the unassisted human ear.
39. For example, defendant the Cook County State’s Attorney currently is prosecuting at least two different alleged violations of the Act:
(a) Alvarez currently is prosecuting a civilian for allegedly violating the Act by audio recording a police officer who was arresting him in a public place. The civilian moved to dismiss, arguing that the application of the Act to his audio recording violated the First Amendment. Alvarez successfully opposed the motion. The eavesdropping charges are now pending. See People v. Drew, No. 10-cr-4601 (Cook County Circuit Ct., charges filed Dec. 15, 2009).
(b) Alvarez currently is prosecuting another civilian for allegedly violating the Act by audio recording on-duty police officers. According to the testimony
14

Case: 1:10-cv-05235 Document #: 66 Filed: 07/10/12 Page 15 of 18 PageID #:803
elicited by Alvarez’s office at the preliminary hearing, the two internal affairs officers at the time were interviewing the civilian regarding her allegation that another police officer had committed misconduct against her. See People v. Moore, No. 10-cr-15709 (Cook County Circuit Ct., charges filed Aug. 31, 2010).
40. At least seven other State’s Attorneys in Illinois have brought eavesdropping charges under the Act against at least nine other civilians who made audio recordings of police officers performing their public duties in public places:
(a) The Champaign County State’s Attorney in 2004. See People v. Thompson, No. 04-cf-1609 (6th Judicial Circuit Ct.).
(b) The Winnebago County State’s Attorney in 2005. See People v. Wight, No. 05-cf-2454 (17th Judicial Circuit Ct.).
(c) The Will County State’s Attorney in 2006. See People v. Babarskas, No. 06-cf-537 (12th Judicial Circuit Ct.).
(d) The Crawford County State’s Attorney in 2009. See People v. Allison, No. 09-cf-50 (2nd Judicial Circuit Ct.).
(e) The DeKalb County State’s Attorney in 2010. See People v. Parteet, No. 10-cf-49 (16th Judicial Circuit Ct.).
(f) The Kane County State’s Attorney in 2010. See People v. Biddle, No. 10-cf-421 (16th Judicial Circuit Ct.).
(g) The Vermillion County State’s Attorney in 2010. See People v. Fitzpatrick, No. 10-cf-397 (5th Judicial Circuit Ct.).
41. The foregoing prosecution by the Champaign County State’s Attorney targeted civilians who, for purposes of advancing police accountability, had undertaken a
15

Case: 1:10-cv-05235 Document #: 66 Filed: 07/10/12 Page 16 of 18 PageID #:804
program of audio recording on-duty police officers performing their jobs in public places. 42. In the face of felony charges under the Act, several of the foregoing
criminal defendants pled guilty to reduced misdemeanor charges of attempted eavesdropping. H. Necessity of and entitlement to injunctive relief
43. The ACLU, Connell, and Carter are prepared and intend immediately to undertake the aforementioned program of making audio recordings of police officers in public.
44. The ACLU has refrained from audio recording police officers on two occasions since June 2010. See supra ¶ 22.
45. The ACLU, Connell, and Carter have a reasonable fear that if they make audio recordings of police officers, Alvarez will prosecute the ACLU, Connell, and Carter for violation of the Act. This reasonable fear is based on the factors set forth above at paragraph 25.
46. Unless enjoined by this Court, Alvarez can – and has not indicated that she would not – prosecute, pursuant to the Act, the ACLU, Connell, and Carter for carrying out the ACLU program of audio recording police officers performing their public duties in public places.
47. The ACLU, Connell, and Carter are suffering, and will continue to suffer, irreparable harm as a result of refraining from carrying out the aforementioned program of audio recording police officers carrying out their public duties in public places.
48. The ACLU, Connell, and Carter have no adequate remedy at law.
16

Case: 1:10-cv-05235 Document #: 66 Filed: 07/10/12 Page 17 of 18 PageID #:805
V. CLAIM FOR RELIEF 49. The allegations of paragraphs 1 through 48 are realleged and incorporated by reference as if fully set forth herein. 50. The Act violates the First Amendment to the U.S. Constitution, as applied to the audio recording of police officers, without the consent of the officers, when (a) the officers are performing their public duties, (b) the officers are in public places, (c) the officers are speaking at a volume audible to the unassisted human ear, and (d) the manner of recording is otherwise lawful. 51. Among other things, this application of the Act is unlawful because:
(a) The Free Speech Clause of the First Amendment protects the right to gather, receive, record, and disseminate the information at issue herein.
(b) The Free Speech Clause and the Petition Clause of the First Amendment protect the right to gather, receive, record, and disseminate the information at issue herein for purposes of using that information to petition government for redress of grievances.
(c) The Free Speech Clause and the Free Press Clause of the First Amendment protect the right to gather, receive, or record the information at issue herein for purposes of disseminating and publishing that information to other people.
VI. PRAYER FOR RELIEF WHEREFORE, the ACLU, Connell, and Carter respectfully request the following relief: A. Entry of a declaratory judgment holding that the Act violates the First Amendment, as applied to the audio recording of police officers, without the consent of
17

Case: 1:10-cv-05235 Document #: 66 Filed: 07/10/12 Page 18 of 18 PageID #:806

the officers, when (a) the officers are performing their public duties, (b) the officers are in

public places, (c) the officers are speaking at a volume audible to the unassisted human

ear, and (d) the manner of recording is otherwise lawful.

B. Entry of a preliminary injunction, and then a permanent injunction, that

enjoins defendant the Cook County State’s Attorney from prosecuting plaintiffs the

ACLU, Connell, and Carter, and other ACLU employees as directed by Connell, under

the Act for audio recording police officers, without the consent of the officers, when (a)

the officers are performing their public duties, (b) the officers are in public places, (c) the

officers are speaking at a volume audible to the unassisted human ear, and (d) the manner

of recording is otherwise lawful.

C. Award the ACLU, Connell, and Carter their reasonable attorneys’ fees,

costs, and expenses pursuant to 42 U.S.C. § 1988.

D. Award such other and further relief as this Court may deem just and

proper.

DATED: July 10, 2012

Respectfully submitted:

s/ Richard J. O'Brien __ ___________________ Counsel for plaintiff

HARVEY GROSSMAN ADAM SCHWARTZ KAREN SHELEY Roger Baldwin Foundation of ACLU, Inc. 180 N. Michigan Ave. Suite 2300 Chicago, IL 60601 (312) 201-9740

RICHARD J. O’BRIEN LINDA R. FRIEDLIEB ROBERT LEIGHTON MATTHEW D. TAKSIN Sidley Austin LLP One South Dearborn Chicago, IL 60603 (312) 853-7000

18

 
 Case: 1:10-cv-05235 Document #: 79 Filed: 12/18/12 Page 1 of 6 PageID #:859

IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

)

THE AMERICAN CIVIL LIBERTIES )

UNION OF ILLINOIS,

)

)

Plaintiff,

)

)

v.

)

)

ANITA ALVAREZ, Cook County State’s )

Attorney, in her official capacity,

)

)

Defendant.

)

)

No. 10 C 5235 Judge Sharon Johnson Coleman

MEMORANDUM OPINION AND ORDER The plaintiff, the American Civil Liberties Union of Illinois (“ACLU”), filed a complaint on August 19, 2010, asserting a preenforcement action against defendant Anita Alvarez as Cook County State’s Attorney (“State”) and seeking declaratory and injunctive relief barring the State from enforcing the Illinois eavesdropping statute. The district court, initially assigned, dismissed the original complaint for lack of standing and dismissed the amended complaint for failing to allege a cognizable First Amendment injury because the First Amendment does not protect a right to audio record. The ACLU appealed and the Seventh Circuit Court of Appeals held that the ACLU had standing to sue, articulated a First Amendment injury, and that the statute in question likely would not pass intermediate scrutiny. ACLU of Illinois v. Alvarez, 679 F. 3d 583 (7th Cir. 2012). The Seventh Circuit reversed and remanded the case with instructions for this Court to grant the ACLU leave to file an amended complaint, enter a preliminary injunction, and consider the motion now before the Court. Accordingly, this Court has considered ACLU’s

Case: 1:10-cv-05235 Document #: 79 Filed: 12/18/12 Page 2 of 6 PageID #:860
Motion for Summary Judgment and request for a permanent injunction. The State does not oppose the motion. For the reasons that follow, this Court grants the motion. Background
The following facts are undisputed. The ACLU is a non-profit, non-partisan, statewide organization with more than 20,000 members and supporters dedicated to protecting the civil rights and liberties guaranteed by the U.S. and Illinois Constitutions and civil rights laws. The putative individual plaintiffs are Colleen Connell, Executive Director of the ACLU, and Allison Carter, Senior Field Manager of the ACLU. In the last two years, the Cook County State’s Attorney’s Office has prosecuted at least three civilians under the Illinois Eavesdropping Act, 720 ILCS 5/14-1 et seq., who recorded on-duty police officers. Other Illinois State’s Attorneys have prosecuted additional civilians under the Act over the last eight years.
Prior to filing the instant law suit, the ACLU devised a program to promote police accountability by openly audio recording police officers without their consent when the officers are performing their public duties; the officers are in public places; the officers are speaking at a volume audible to the unassisted human ear; and the manner of recording is otherwise lawful. The ACLU now seeks to undertake this program in Cook County, Illinois. The ACLU intends to publish the information obtained from such recordings to the general public, including traditional print, broadcast, and cable media, as well as Internet and electronic media. The ACLU would also use the information to petition the government for redress of grievances, including before courts, legislatures and administrative agencies. The ACLU has not yet implemented this program due to the threat of prosecution. The Seventh Circuit held that the ACLU had alleged a credible threat of prosecution necessary to support a preenforcement action. ACLU v. Alvarez, 679 F.3d 583, 594 (7th Cir. 2012).
-2-

Case: 1:10-cv-05235 Document #: 79 Filed: 12/18/12 Page 3 of 6 PageID #:861
Legal Standard A party is entitled to summary judgment if all of “the pleadings, the discovery and
disclosure materials on file, and any affidavits show that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56. When considering a summary judgment motion, the Court construes the facts and all reasonable inferences in the light most favorable to the non-moving party. Abdullahi v. City of Madison, 423 F. 3d 763, 773 (7th Cir. 2005). A genuine issue of material fact exists “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Serednyj v. Beverly Healthcare, LLC, 656 F.3d 540, 547 (7th Cir. 2011). Discussion
The ACLU moves for summary judgment seeking a declaration that the Illinois Eavesdropping Act violates the First Amendment as applied to the ACLU program of advancing police accountability by means of openly audio recording police officers without their consent when the officers are performing their public duties; the officers are in public places; the officers are speaking at a volume audible to the unassisted human ear; and the manner of recording is otherwise lawful. The ACLU also seeks a permanent injunction pursuant to Federal Rule of Civil Procedure 65(d) that enjoins Anita Alvarez from prosecuting the ACLU, its employees and agents under the Act for audio recording on-duty police officers.
In order for the court to impose a permanent injunction, the plaintiff must prove: “(1) success, as opposed to a likelihood of success, on the merits; (2) irreparable harm; (3) that the benefits of granting the injunction outweigh the injury to the defendant; and, (4) that the public interest will not be harmed by the relief requested.” ADT Sec. Srvcs., Inc. v. Lisle-Woodridge
-3-

Case: 1:10-cv-05235 Document #: 79 Filed: 12/18/12 Page 4 of 6 PageID #:862
Fire Prot. Dist., 672 F.3d 492, 498 (7th Cir. 2012) (quoting Collins v. Hamilton, 349 F.3d 371, 374 (7th Cir. 2003).
In its opinion remanding this case, the Seventh Circuit held that the application of the Illinois Eavesdropping Act to the ACLU program triggers at least intermediate scrutiny under the First Amendment. ACLU, 679 F.3d at 604. The Seventh Circuit also held that the likelihood of success factor raises only a legal question in this case, and that the ACLU has a strong likelihood of success on the merits of its First Amendment claim. Id. at 590, 608. Further, the court held that the Act as applied to the ACLU program is not narrowly tailored to the privacy interests asserted by the State, and that the application of the Act to the ACLU program very likely fails intermediate scrutiny. Id. at 608.
The Seventh Circuit noted that courts articulate intermediate scrutiny in slightly different ways depending on the context of the First Amendment challenge. However, the intermediate scrutiny standards share certain essential elements. Intermediate scrutiny in the First Amendment context always requires: (1) content neutrality; (2) an important public interest justification for the challenged regulation; and (3) a reasonably close fit between the law’s means and its ends. “This last requirement means that the burden on First Amendment rights must not be greater than necessary to further the important governmental interest at stake.” Id. at 605 (citing Bd. of Trs. v. Fox, 492 U.S. 469, 480 (U.S. 1989); Ward v. Rock Against Racism, 491 U.S. 781, 799 (U.S. 1989); and United States v. O'Brien, 391 U.S. 367, 376 (U.S. 1968)).
This Court finds that the Illinois Eavesdropping Act as applied to the ACLU program fails intermediate scrutiny. The statute on its face is content neutral since it bans all audio recording of any oral communication absent the consent of the parties. See 720 ILCS 5/14-
-4-

Case: 1:10-cv-05235 Document #: 79 Filed: 12/18/12 Page 5 of 6 PageID #:863
2(a)(1)(A). The Act broadly defines “conversation” as “any oral communication between 2 or more persons regardless of whether one or more of the parties intended their communication to be of a private nature under the circumstances justifying that expectation.” 720 ILCS 5/14-1(d). The State has not opposed the motion now before the Court therefore it has not advanced an important public interest justification. At earlier stages of this litigation, the State proffered the need to protect conversational privacy. The Seventh Circuit rejected privacy interests as justification for the eavesdropping act, reasoning that the statute makes it a crime to audio record any conversation, even those that are not in fact private and thus the State severed any connection between the eavesdropping statute’s means and its end. ACLU, 679 F.3d at 605. The State has not proffered any additional public interest justifications for the Act. See Weinberg v. City of Chicago, 310 F.3d 1029, 1038 (7th Cir. 2002) (“In the context of a First Amendment challenge under the narrowly tailored test, the government has the burden of showing that there is evidence supporting its proffered justification.”). This Court finds that there are no public interest justifications for the Act as it applies to the ACLU program. Accordingly, this Court must also find that the eavesdropping statute as applied to the ACLU program is not narrowly tailored to any public interest justification. Not only are the conversations that the ACLU intends to record as part of its program not intended to be private, the recordings are open so that police and others have notice that they are being recorded. Thus, there is no privacy interest at stake here. This Court concludes that the eavesdropping statute as applied to the ACLU program fails intermediate scrutiny and violates the First Amendment.
Further, the ACLU is entitled to a permanent injunction that enjoins Alvarez from prosecuting the ACLU, its employees and agents, for audio recording on-duty police pursuant to
-5-

Case: 1:10-cv-05235 Document #: 79 Filed: 12/18/12 Page 6 of 6 PageID #:864 the ACLU program outlined above. The ACLU has succeeded on the merits of its claim, the infringement on First Amendment freedoms constitutes irreparable injury, and injunctions protecting First Amendment freedoms are always in the public interest. See Christian Legal Soc’y v. Walker, 453 F.3d 853, 859 (7th Cir. 2006).
Based on the foregoing, this Court grants the ACLU’s Motion for Summary Judgment and a permanent injunction will issue in separate Order. IT IS SO ORDERED. Date: December 18, 2012
Entered: ____________________________ Sharon Johnson Coleman
-6-

 
 Case: 1:10-cv-05235 Document #: 83 Filed: 01/14/13 Page 1 of 2 PageID #:872

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

THE AMERICAN CIVIL LIBERTIES UNION )

OF ILLINOIS, COLLEEN CONNELL, and )

ALLISON CARTER,

)

)

Plaintiffs,

)

)

v.

)

)

ANITA ALVAREZ, Cook County State’s

)

Attorney, in her official capacity,

)

)

Defendant.

)

Case No. 10 CV 5235
Judge Sharon Johnson Coleman
Magistrate Judge Sidney I. Schenkier

ORDER This cause coming to be heard on Plaintiffs’ motion for summary judgment, Defendant not opposing this motion, and for the reasons set forth in this Court’s memorandum opinion and order granting summary judgment for plaintiffs: IT IS HEREBY DECLARED, pursuant to Rule 57 of the Federal Rules of Civil Procedure and 28 U.S.C. § 2201 that: The Illinois Eavesdropping Act, 720 ILCS 5/14, violates the First Amendment of the United States Constitution as applied to the open audio recording of the audible communications of law enforcement officers (or others whose communications are incidentally captured) when the officers are engaged in their official duties in public places. FURTHERMORE, IT IS HEREBY ORDERED, pursuant to Rule 65 of the Federal Rules of Civil Procedure: Defendant Anita Alvarez, in her official capacity as Cook County State’s Attorney, is permanently enjoined from enforcing the Illinois Eavesdropping Act against the American Civil

1

Case: 1:10-cv-05235 Document #: 83 Filed: 01/14/13 Page 2 of 2 PageID #:873 Liberties Union of Illinois and its employees or agents who openly audio record the audible communications of law enforcement officers (or others whose communications are incidentally captured) when the officers are engaged in their official duties in public places.
DATED: 14th date of January, 2013 ___________________________________ Sharon Johnson Coleman United States District Court Judge
2

 
 Case: 1:10-cv-05235 Document #: 91 Filed: 03/05/13 Page 1 of 1 PageID #:937

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

THE AMERICAN CIVIL LIBERTIES UNION )

OF ILLINOIS, COLLEEN CONNELL, and )

ALLISON CARTER,

)

)

Plaintiffs,

)

)

v.

)

)

ANITA ALVAREZ, Cook County State’s

)

Attorney, in her official capacity,

)

)

Defendant.

)

Case No. 10 CV 5235
Judge Sharon Johnson Coleman
Magistrate Judge Sidney I. Schenkier

ORDER This cause coming to be heard on plaintiffs’ unopposed motion for fees, costs, and expenses, IT IS HEREBY ORDERED that the County of Cook, on behalf of Anita Alvarez, in her official capacity as Cook County State’s Attorney, is to pay plaintiff the American Civil Liberties Union of Illinois the sum of $645,549 for all attorney fees, taxable costs, and nontaxable expenses in this case. DATED: 5th day of March, 2013

___________________________________ Sharon Johnson Coleman United States District Court Judge

 
 Case: 1:10-cv-05235 As of: 05/24/2013 03:29 PM CDT 1 of 8
REOPEN,SCHENKIER,TERMED
United States District Court Northern District of Illinois − CM/ECF LIVE, Ver 5.1.1 (Chicago)
CIVIL DOCKET FOR CASE #: 1:10−cv−05235

The American Civil Liberties Union of Illinois v. Alvarez Assigned to: Honorable Sharon Johnson Coleman Case in other court: 11−01286 Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 08/19/2010 Date Terminated: 01/14/2013 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

The American Civil Liberties Union of Illinois

represented by Harvey Michael Grossman Roger Baldwin Foundation of ACLU, Inc. 180 North Michigan Avenue Suite 2300 Chicago, IL 60601−7401 (312) 201−9740 Email: hgrossman@aclu−il.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Karen A. Sheley ACLU of Illinois 180 North Michigan Avenue Suite 2300 Chicago, IL 60601 (312) 201−9740 Email: ksheley@ACLU−il.org ATTORNEY TO BE NOTICED

Linda Robin Friedlieb Sidley Austin LLP One South Dearborn Street Chicago, IL 60603 (312) 853−7314 Email: lfriedlieb@sidley.com ATTORNEY TO BE NOTICED

Matthew D Taksin Sidley Austin LLP One South Dearborn St. Chicago, IL 60603 (312) 853−7295 Email: mtaksin@sidley.com ATTORNEY TO BE NOTICED

Richard J. O'Brien Sidley Austin LLP One South Dearborn Street Chicago, IL 60603 (312) 853−7000 Email: robrien@sidley.com ATTORNEY TO BE NOTICED

Robert Douglas Leighton Sidley Austin LLP One South Dearborn Street Chicago, IL 60603 312 853 9459 Email: rleighton@sidley.com ATTORNEY TO BE NOTICED

Case: 1:10-cv-05235 As of: 05/24/2013 03:29 PM CDT 2 of 8

Adam D. Schwartz Roger Baldwin Foundation of ACLU, Inc. 180 North Michigan Avenue Suite 2300 Chicago, IL 60601−7401 (312) 201−9740 Email: aschwartz@aclu−il.org ATTORNEY TO BE NOTICED

Plaintiff Colleen Connell

represented by Harvey Michael Grossman (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Allison Carter

represented by Harvey Michael Grossman (See above for address) ATTORNEY TO BE NOTICED

V.
Defendant
Anita Alvarez Cook County State's Attorney, in her official capacity

represented by Patrick T. Driscoll , Jr. Cook County State's Attorney 500 Richard J. Daley Center Chicago, IL 60602 (312) 603−6461 Email: pdrisco@cookcountygov.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Donald J. Pechous Cook County State's Attorney 500 Richard J. Daley Center Chicago, IL 60602 (312) 603−3378 Email: dpechou@cookcountygov.com ATTORNEY TO BE NOTICED
James Charles Pullos Cook County State's Attorneys Office (50 W) 50 West Washington Avenue Chicago, IL 60602 (312) 603−5105 Email: james.pullos@cookcountyil.gov ATTORNEY TO BE NOTICED
Jeffrey S. McCutchan Cook County State's Attorney 500 Richard J. Daley Center Chicago, IL 60602 (312) 603−6461 Email: jmccutc@cookcountygov.com ATTORNEY TO BE NOTICED
Paul Anthony Castiglione Cook County State's Attorney's Office (69W) 69 W. Washington Suite 3110 Chicago, IL 60602

Case: 1:10-cv-05235 As of: 05/24/2013 03:29 PM CDT 3 of 8
(312) 603−1840 Email: pcastig@cookcountygov.com ATTORNEY TO BE NOTICED

Date Filed 08/19/2010 08/19/2010 08/19/2010 08/19/2010 08/19/2010 08/19/2010 08/19/2010 08/19/2010 08/19/2010 08/19/2010 08/19/2010
08/23/2010
08/27/2010 08/30/2010 08/30/2010 08/30/2010 08/31/2010 09/03/2010 09/03/2010

# Docket Text
1 COMPLAINT filed by American Civil Liberties Union of Illinois; Filing fee $ 350, receipt number 0752−5133594.(Schwartz, Adam) (Entered: 08/19/2010)
2 CIVIL Cover Sheet (Schwartz, Adam) (Entered: 08/19/2010)
3 ATTORNEY Appearance for Plaintiff American Civil Liberties Union of Illinois by Adam D. Schwartz (Schwartz, Adam) (Entered: 08/19/2010)
4 ATTORNEY Appearance for Plaintiff American Civil Liberties Union of Illinois by Harvey Michael Grossman (Grossman, Harvey) (Entered: 08/19/2010)
5 ATTORNEY Appearance for Plaintiff American Civil Liberties Union of Illinois by Karen A. Sheley (Sheley, Karen) (Entered: 08/19/2010)
CASE ASSIGNED to the Honorable Suzanne B. Conlon. Designated as Magistrate Judge the Honorable Sidney I. Schenkier. (jn, ) (Entered: 08/19/2010)
SUMMONS Issued as to Defendant Anita Alvarez. (ef, ) (Entered: 08/19/2010)
6 ATTORNEY Appearance for Plaintiff American Civil Liberties Union of Illinois by Richard J. O'Brien (O'Brien, Richard) (Entered: 08/19/2010)
7 ATTORNEY Appearance for Plaintiff American Civil Liberties Union of Illinois by Linda Robin Friedlieb (Friedlieb, Linda) (Entered: 08/19/2010)
8 ATTORNEY Appearance for Plaintiff American Civil Liberties Union of Illinois by Matthew D Taksin (Taksin, Matthew) (Entered: 08/19/2010)
9 SUMMONS Returned Executed by American Civil Liberties Union of Illinois as to Anita Alvarez on 8/19/2010, answer due 9/9/2010. (Schwartz, Adam) (Entered: 08/19/2010)
10 MINUTE entry before Honorable Suzanne B. Conlon: Status hearing set for October 13, 2010 at 09:00 A.M. At the status hearing, the parties are to report on the following: 1. Possibility of settlement in the case; 2. If no possibility of settlement exists, the nature and length of discovery necessary to get the case ready for trial. Plaintiff is directed to advise all other parties of the courts action herein and to forward a copy of the courts procedure guidelines to defendant(s). The standing order on case management procedures is available on the courts website at www.ilnd.uscourts.gov/JUDGE/CONLON/sbcpage.htm or can be picked up from the courtroom deputy in room 1744. Mailed notice(air, ) (Entered: 08/23/2010)
11 ATTORNEY Appearance for Defendant Anita Alvarez by James Charles Pullos (Pullos, James) (Entered: 08/27/2010)
12 ATTORNEY Appearance for Defendant Anita Alvarez by Patrick T. Driscoll, Jr (Driscoll, Patrick) (Entered: 08/30/2010)
13 ATTORNEY Appearance for Defendant Anita Alvarez by Paul Anthony Castiglione (Castiglione, Paul) (Entered: 08/30/2010)
14 ATTORNEY Appearance for Defendant Anita Alvarez by Donald J. Pechous (Pechous, Donald) (Entered: 08/30/2010)
15 ATTORNEY Appearance for Defendant Anita Alvarez by Jeffrey S. McCutchan (McCutchan, Jeffrey) (Entered: 08/31/2010)
16 MOTION by Plaintiff American Civil Liberties Union of Illinois for preliminary injunction (O'Brien, Richard) (Entered: 09/03/2010)
17 NOTICE of Motion by Richard J. O'Brien for presentment of motion for preliminary injunction 16 before Honorable Suzanne B. Conlon on 9/9/2010 at 09:00 AM. (O'Brien, Richard) (Entered: 09/03/2010)

Case: 1:10-cv-05235 As of: 05/24/2013 03:29 PM CDT 4 of 8

09/03/2010 09/09/2010 09/09/2010 09/09/2010 09/16/2010 09/29/2010 09/30/2010 09/30/2010 10/05/2010 10/06/2010
10/07/2010 10/07/2010 10/13/2010 10/13/2010
10/28/2010 10/28/2010

18 MEMORANDUM by American Civil Liberties Union of Illinois in support of motion for preliminary injunction 16 (Attachments: # 1 Exhibit Ex. A, # 2 Exhibit Ex. B, # 3 Exhibit Ex. C−1, # 4 Exhibit Ex. C−2, # 5 Exhibit Ex. C, # 6 Exhibit Ex. D, # 7 Exhibit Ex. E)(O'Brien, Richard) (Entered: 09/03/2010)
19 MOTION by Defendant Anita Alvarez to dismiss (Pullos, James) (Entered: 09/09/2010)
20 NOTICE of Motion by James Charles Pullos for presentment of motion to dismiss 19 before Honorable Suzanne B. Conlon on 9/16/2010 at 09:00 AM. (Pullos, James) (Entered: 09/09/2010)
21 MINUTE entry before Honorable Suzanne B. Conlon: Plaintiff's motion for a preliminary injunction 16 is taken under advisement. Defendant's response due September 29, 2010. Plaintiff's reply due by October 6, 2010. Mailed notice(air, ) (Entered: 09/13/2010)
22 MINUTE entry before Honorable Suzanne B. Conlon: Motion to dismiss the plaintiff's complaint 19 is taken under advisement. Defendant's response due by October 6, 2010; plaintiff shall reply by October 13, 2010. Mailed notice(air, ) (Entered: 09/21/2010)
23 RESPONSE by Anita Alvarezin Opposition to MOTION by Plaintiff American Civil Liberties Union of Illinois for preliminary injunction 16 (Attachments: # 1 Notice of Filing)(Pullos, James) (Entered: 09/29/2010)
24 MOTION by Plaintiff American Civil Liberties Union of Illinoisto file a Consolidated Brief (unopposed) (Grossman, Harvey) (Entered: 09/30/2010)
25 NOTICE of Motion by Harvey Michael Grossman for presentment of motion for miscellaneous relief 24 before Honorable Suzanne B. Conlon on 10/5/2010 at 09:00 AM. (Grossman, Harvey) (Entered: 09/30/2010)
29 MINUTE entry before Honorable Suzanne B. Conlon: Plaintiff's unopposed motion to file consolidated brief not exceeding 30 pages 24 is granted. Mailed notice(air, ) (Entered: 10/08/2010)
26 RESPONSE by American Civil Liberties Union of Illinoisin Opposition to MOTION by Defendant Anita Alvarez to dismiss 19 and Reply in Support of Motion for Preliminary Injunction [Dock. 16] (Attachments: # 1 Exhibit Ex. F, # 2 Exhibit Ex. G, # 3 Exhibit Ex. H, # 4 Exhibit Ex. I, # 5 Exhibit Ex. J, # 6 Exhibit Ex. K, # 7 Exhibit Ex. L, # 8 Exhibit Ex. M, # 9 Exhibit Ex. N, # 10 Exhibit Ex. O)(O'Brien, Richard) (Entered: 10/06/2010)
27 MOTION by Plaintiff American Civil Liberties Union of Illinois to File Supplemental Exhibit to Its Combined Reply Regarding Preliminary Injunction and Dismissal (Grossman, Harvey) (Entered: 10/07/2010)
28 NOTICE of Motion by Harvey Michael Grossman for presentment of motion for miscellaneous relief 27 before Honorable Suzanne B. Conlon on 10/13/2010 at 09:00 AM. (Grossman, Harvey) (Entered: 10/07/2010)
30 REPLY by Defendant Anita Alvarez to motion to dismiss 19 (Attachments: # 1 Notice of Filing)(Pullos, James) (Entered: 10/13/2010)
31 MINUTE entry before Honorable Suzanne B. Conlon: Plaintiff's motion to file supplemental exhibit to its combined reply regarding preliminary injunction and dismissal 27 is granted. Status hearing set on October 13, 2010 is vacated pending disposition of the motions to dismiss 19 and for preliminary injunction 16 . Mailed notice(air, ) (Entered: 10/13/2010)
32 MINUTE entry before Honorable Suzanne B. Conlon: Defendant's motion to dismiss 19 is granted. Plaintiff's preliminary injunction motion 16 is moot. ENTER MEMORANDUM OPINION AND ORDER. Mailed notice(air, ) (Entered: 10/28/2010)
33 MEMORANDUM Opinion and Order Signed by the Honorable Suzanne B. Conlon on 10/28/2010:Mailed notice(air, ) (Entered: 10/28/2010)

Case: 1:10-cv-05235 As of: 05/24/2013 03:29 PM CDT 5 of 8

10/28/2010 11/18/2010 11/18/2010
11/18/2010 11/19/2010
12/10/2010
12/16/2010 01/10/2011
01/10/2011 02/04/2011 02/04/2011 02/04/2011 02/04/2011 02/23/2011 06/15/2012
06/22/2012 06/22/2012

34 ENTERED JUDGMENT Signed by the Honorable Suzanne B. Conlon on 10/28/2010:Mailed notice(air, ) (Entered: 10/28/2010)
35 MOTION by Plaintiff American Civil Liberties Union of Illinois to alter judgment , to file an amended complaint, and for a preliminary injunction (O'Brien, Richard) (Entered: 11/18/2010)
36 MEMORANDUM by American Civil Liberties Union of Illinois in support of motion to alter judgment 35 , to file an amended complaint, and for a preliminary injunction (Attachments: # 1 Exhibit Ex. 1 − Amended complaint, # 2 Exhibit Ex. 2 − Connell Declaration (with attached Exhibits A through I), # 3 Exhibit Ex. 3 − Carter Declaration)(O'Brien, Richard) (Entered: 11/18/2010)
37 NOTICE of Motion by Richard J. O'Brien for presentment of motion to alter judgment 35 before Honorable Suzanne B. Conlon on 11/23/2010 at 09:00 AM. (O'Brien, Richard) (Entered: 11/18/2010)
38 MINUTE entry before Honorable Suzanne B. Conlon: The ACLUs motion to amend judgment, to file an amended complaint, and for a preliminary injunction 35 is taken under advisement. Defendant shall respond by December 10, 2010; plaintiffs reply due by December 17, 2010. The motion will not be heard as noticed on November 23, 2010.Mailed notice(air, ) (Entered: 11/19/2010)
39 RESPONSE by Anita Alvarezin Opposition to MOTION by Plaintiff American Civil Liberties Union of Illinois to alter judgment , to file an amended complaint, and for a preliminary injunction 35 (Attachments: # 1 Notice of Filing)(Pullos, James) (Entered: 12/10/2010)
40 REPLY by Plaintiff American Civil Liberties Union of Illinois to motion to alter judgment 35 to file an amended complaint, and for a preliminary injunction (Schwartz, Adam) (Entered: 12/16/2010)
41 MINUTE entry before Honorable Suzanne B. Conlon: Plaintiff's motion to amend judgment and to file an amended complaint 35 is denied. Plaintiff's renewed motion for a preliminary injunction is moot. ENTER MEMORANDUM OPINION AND ORDER.Mailed notice(air, ) (Entered: 01/10/2011)
42 MEMORANDUM Opinion and Order Signed by the Honorable Suzanne B. Conlon on 1/10/2011.Mailed notice(air, ) (Entered: 01/10/2011)
43 NOTICE of appeal by American Civil Liberties Union of Illinois regarding orders 41 42 , 33 34 . Filing fee $ 455, receipt number 0752−5674814. (O'Brien, Richard) (Entered: 02/04/2011)
44 NOTICE of Appeal Due letter sent to counsel of record (dj, ) (Entered: 02/04/2011)
45 TRANSMITTED to the 7th Circuit the short record on notice of appeal 43 . Notified counsel (dj, ) (Entered: 02/04/2011)
46 ACKNOWLEDGEMENT of receipt of short record on appeal regarding notice of appeal 43 ; USCA Case No. 11−1286. (smm) (Entered: 02/07/2011)
47 TRANSMITTED to the USCA for the 7th Circuit the long record on appeal 43 (USCA no. 11−1286) (dj, ) (Entered: 02/23/2011)
48 EXECUTIVE COMMITTEE ORDER: Case reassigned to the Honorable Sharon Johnson Coleman for all further proceedings. Case reassigned by lot pursuant to 28 USC 294(b). Signed by Executive Committee on 6/15/12.(smm) (Entered: 06/19/2012)
51 LETTER from the Seventh Circuit returning the record on appeal in USCA no. 11−1286 consisting of no record to be returned. (smm) (Entered: 06/25/2012)
53 MANDATE of USCA dated 6/22/12 regarding notice of appeal 43 ; USCA No. 11−1286. The judgment of the District Court is REVERSED, with costs, and the case is REMANDED with the following instructions: The district court shall reopen the case and allow the amended complaint; enter a preliminary injunction enjoining the State's Attorney from applying the Illinois eavesdropping statute against the ACLU and its employees or agents who openly audio record the audible

Case: 1:10-cv-05235 As of: 05/24/2013 03:29 PM CDT 6 of 8

06/22/2012 06/22/2012 06/25/2012 06/25/2012 06/25/2012 06/26/2012 06/26/2012 06/26/2012
06/26/2012 06/27/2012 06/28/2012
06/28/2012 07/02/2012 07/03/2012
07/06/2012 07/10/2012

communications of law−enforcement officers (or others whose communications are incidentally captured) when the officers are engaged in their official duties in public places; and conduct such further proceedings as are consistent with this court's opinion. The above is in accordance with the decision of this court entered on this date. (smm) (Entered: 06/25/2012)
54 CERTIFIED Copy of OPINION from the USCA for the 7th Circuit; Argued 9/13/11; Decided 5/8/12 in USCA case no. 11−1286. (smm) (Entered: 06/25/2012)
55 CERTIFIED copy of order dated 6/14/12 from the Seventh Circuit regarding notice of appeal 43 ; Appellate case no. : 11−1286. (smm) (Entered: 06/25/2012)
49 MOTION by Plaintiff American Civil Liberties Union of Illinois for preliminary injunction and entry of amended complaint (O'Brien, Richard) (Entered: 06/25/2012)
50 NOTICE of Motion by Richard J. O'Brien for presentment of motion for preliminary injunction 49 before Honorable Sharon Johnson Coleman on 7/3/2012 at 08:45 AM. (O'Brien, Richard) (Entered: 06/25/2012)
52 ATTORNEY Appearance for Plaintiff American Civil Liberties Union of Illinois by Robert Douglas Leighton (Leighton, Robert) (Entered: 06/25/2012)
56 MOTION by Plaintiff American Civil Liberties Union of Illinois for summary judgment (O'Brien, Richard) (Entered: 06/26/2012)
57 MEMORANDUM by American Civil Liberties Union of Illinois in support of motion for summary judgment 56 (O'Brien, Richard) (Entered: 06/26/2012)
58 RULE 56.1(a)(3) Statement by American Civil Liberties Union of Illinois regarding motion for summary judgment 56 (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12)(O'Brien, Richard) (Entered: 06/26/2012)
59 NOTICE of Motion by Richard J. O'Brien for presentment of motion for summary judgment 56 before Honorable Sharon Johnson Coleman on 7/3/2012 at 08:45 AM. (O'Brien, Richard) (Entered: 06/26/2012)
62 MANDATE of USCA dated 6/22/12 regarding notice of appeal 43 ; USCA No. 11−1286. (smm) (Entered: 07/02/2012)
60 MOTION by Defendant Anita Alvarez to stay Proceedings, or Alternatively, to Stay Briefing of Plaintiff's Motion for Summary Judgment to Allow Discovery (Attachments: # 1 Exhibit A, Affidavit of James C. Pullos)(Pullos, James) (Entered: 06/28/2012)
61 NOTICE of Motion by James Charles Pullos for presentment of motion to stay 60 before Honorable Sharon Johnson Coleman on 7/3/2012 at 08:45 AM. (Pullos, James) (Entered: 06/28/2012)
63 MEMORANDUM by American Civil Liberties Union of Illinois in Opposition to motion to stay 60 (O'Brien, Richard) (Entered: 07/02/2012)
64 MINUTE entry before Honorable Sharon Johnson Coleman: Motion hearing held on 7/3/2012. Plaintiff's motion for preliminary injunction and entry of amended complaint 49 is granted. Enter Preliminary Injunction and Other Relief. Defendant's motion to stay 60 is taken under advisement. Ruling will be forthcoming within the next week. Plaintiff's motion for summary judgment 56 is entered and continued pending the ruling on the defendant's motion to stay.Mailed notice (rth, ) (Entered: 07/06/2012)
65 PRELIMINARY INJUNCTION Signed by the Honorable Sharon Johnson Coleman on 7/6/2012:Mailed notice(rth, ) (Entered: 07/06/2012)
66 AMENDED complaint by American Civil Liberties Union of Illinois against Anita Alvarez (O'Brien, Richard) (Entered: 07/10/2012)

Case: 1:10-cv-05235 As of: 05/24/2013 03:29 PM CDT 7 of 8

07/10/2012 10/22/2012

67 MINUTE entry before Honorable Sharon Johnson Coleman: A motion hearing was held on July 3, 2012, on defendant Anita Alvarez' Motion to Stay the Proceedings orAlternatively to Stay Briefing of Plaintiff's Motion for Summary Judgment to Allow Discovery. For the reasons stated herein, this Court grants Alvarez' Motion to Stay pending the filing of a Writ of Certiorari. Status hearing set to 10/29/2012 at 9:00 a.m.Mailed notice (rth, ) (Entered: 07/10/2012)
68 TRANSCRIPT OF PROCEEDINGS held on 7/3/12 before the Honorable Sharon Johnson Coleman. Court Reporter Contact Information: Tracey D. McCullough, 312−435−5570, tracey_mccullough@ilnd.uscourts.gov.

IMPORTANT: The transcript may be viewed at the court's public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through the Court Reporter/Transcriber or PACER. For further information on the redaction process, see the Court's web site at www.ilnd.uscourts.gov under Quick Links select Policy Regarding the Availability of Transcripts of Court Proceedings.

10/24/2012 11/26/2012 11/26/2012 11/29/2012
12/03/2012 12/03/2012 12/04/2012 12/06/2012
12/10/2012
12/18/2012

Redaction Request due 11/13/2012. Redacted Transcript Deadline set for 11/23/2012. Release of Transcript Restriction set for 1/21/2013. (Mccullough, Tracey) (Entered: 10/22/2012)
69 MINUTE entry before Honorable Sharon Johnson Coleman: Status hearing set for 10/29/2012 is stricken and reset to 12/10/2012 at 09:00 AM.Mailed notice (rth, ) (Entered: 10/24/2012)
70 MOTION by Plaintiffs The American Civil Liberties Union of Illinois, Allison Carter, Colleen Connell for summary judgment renewed (Grossman, Harvey) (Entered: 11/26/2012)
71 NOTICE of Motion by Harvey Michael Grossman for presentment of motion for summary judgment 70 before Honorable Sharon Johnson Coleman on 11/29/2012 at 08:45 AM. (Grossman, Harvey) (Entered: 11/26/2012)
72 MINUTE entry before Honorable Sharon Johnson Coleman: Motion hearing held on 11/29/2012. On plaintiff's renewed motion for summary judgment 70 , response due by 1/4/2013. Reply due by 1/18/2013. Defendant's reply to its motion to stay to allow for discovery 60 due by 12/13/2012.Mailed notice (rth, ) (Entered: 12/02/2012)
73 MOTION by Defendant Anita Alvarez To Advance This Matter For Status Hearing (Attachments: # 1 Exhibit A, Proposed Order)(Pullos, James) (Entered: 12/03/2012)
74 NOTICE of Motion by James Charles Pullos for presentment of motion for miscellaneous relief 73 before Honorable Sharon Johnson Coleman on 12/6/2012 at 08:45 AM. (Pullos, James) (Entered: 12/03/2012)
75 MINUTE entry before Honorable Sharon Johnson Coleman: Defendant's motion to advance this matter for status hearing 73 is granted. Status hearing set to 12/10/2012 shall stand. No appearance is necessary on 12/6/2012.Mailed notice (rth, ) (Entered: 12/04/2012)
76 RESPONSE by Plaintiffs Allison Carter, Colleen Connell, The American Civil Liberties Union of Illinois to Defendant's Motion to Advance This Matter for Status Hearing regarding entry 73 (Attachments: # 1 Exhibit A)(Leighton, Robert) (Docket Text Modified by Clerk's Office on 12/6/2012) (np, ). (Entered: 12/06/2012)
77 MINUTE entry before Honorable Sharon Johnson Coleman: Status hearing held on 12/10/2012 at which the defendant informed the Court that it will not oppose the plaintiff's motion for summary judgment and the entry of a permanent injunction. The Court will issue its Memorandum Opinion and Order within seven days.Mailed notice (rth, ) (Entered: 12/13/2012)
78 MINUTE entry before Honorable Sharon Johnson Coleman: Based on the foregoing, this Court grants the ACLU's Motion for Summary Judgment and a permanent injunction will issue in separate Order. Enter Memorandum Opinion

Case: 1:10-cv-05235 As of: 05/24/2013 03:29 PM CDT 8 of 8

12/18/2012 01/09/2013 01/09/2013 01/14/2013 01/14/2013 01/14/2013 01/31/2013
02/08/2013 02/22/2013 02/28/2013 02/28/2013 03/05/2013
03/05/2013

and Order.Mailed notice (rth, ) (Entered: 12/21/2012)
79 MEMORANDUM Opinion and Order Signed by the Honorable Sharon Johnson Coleman on 12/18/2012:Mailed notice(rth, ) (Entered: 12/21/2012)
80 MOTION by Plaintiffs Allison Carter, Colleen Connell, The American Civil Liberties Union of Illinois for Entry of Proposed Final Order (Attachments: # 1 Exhibit 1 − Proposed order)(Schwartz, Adam) (Entered: 01/09/2013)
81 NOTICE of Motion by Adam D. Schwartz for presentment of motion for miscellaneous relief 80 before Honorable Sharon Johnson Coleman on 1/15/2013 at 08:45 AM. (Schwartz, Adam) (Entered: 01/09/2013)
82 MINUTE entry before Honorable Sharon Johnson Coleman: Plaintiffs' motion for entry of proposed final order 80 is granted. Enter Order.Mailed notice (rth, ) (Entered: 01/14/2013)
83 ORDER Signed by the Honorable Sharon Johnson Coleman on 1/14/2013:Mailed notice(rth, ) (Entered: 01/14/2013)
85 ENTERED JUDGMENT Signed on 1/14/2013:Mailed notice(rth, ) (Entered: 02/07/2013)
84 TRANSCRIPT OF PROCEEDINGS held on 11/29/12 before the Honorable Sharon Johnson Coleman. Court Reporter Contact Information: TRACEY D. McCULLOUGH, 312−435−5570, Tracey_Mccullough@ilnd.uscourts.gov.
IMPORTANT: The transcript may be viewed at the court's public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through the Court Reporter/Transcriber or PACER. For further information on the redaction process, see the Court's web site at www.ilnd.uscourts.gov under Quick Links select Policy Regarding the Availability of Transcripts of Court Proceedings.
Redaction Request due 2/21/2013. Redacted Transcript Deadline set for 3/4/2013. Release of Transcript Restriction set for 5/1/2013. (Mccullough, Tracey) (Entered: 01/31/2013)
86 BILL of Costs (Attachments: # 1 Exhibit A − Filing fees itemization &receipts, # 2 Exhibit B − Transcripts itemization &receipts, # 3 Exhibit C − Copying itemization &receipts)(Schwartz, Adam) (Entered: 02/08/2013)
87 COSTS Taxed in favor of American Civil Liberties Union of Illinois, et al. in amount of $ 2,432.19 and against Anita Alvarez. (Exhibits) (mgh,). (Entered: 02/26/2013)
88 MOTION by Plaintiffs Allison Carter, Colleen Connell, The American Civil Liberties Union of Illinois for attorney fees UNOPPOSED (Attachments: # 1 Text of Proposed Order)(Schwartz, Adam) (Entered: 02/28/2013)
89 NOTICE of Motion by Adam D. Schwartz for presentment of motion for attorney fees 88 before Honorable Sharon Johnson Coleman on 3/6/2013 at 08:45 AM. (Schwartz, Adam) (Entered: 02/28/2013)
90 MINUTE entry before Honorable Sharon Johnson Coleman: Plaintiff's unopposed motion for attorney fees, costs and expenses 88 is granted. County of Cook, on behalf of Anita Alvarez, in her official capacity as Cook County State's Attorney, is to pay plaintiff the sum of $645,549 for all attorney fees, taxable costs, and nontaxable expenses in this case. Enter Order.Mailed notice (rth, ) (Entered: 03/05/2013)
91 ORDER Signed by the Honorable Sharon Johnson Coleman on 3/5/2013:Mailed notice(rth, ) (Entered: 03/05/2013)