Man Who's Spent Three Years Challenging IL's Eavesdropping Act Suddenly Finds He Has No Case

from the this-is-how-it-ends,-not-with-a-bang,-but-with-a-moot dept

The oft-abused Illinois Eavesdropping Act that was recently found to be unconstitutional by the courts is at the center of one man's lawsuit against his local police force.

According to the filing, the plaintiff (Louis Frobe) suffers from insomnia, which has led to him spending a great deal of time outside of his house at night, either going to late movie showings or engaging in nocturnal animal-watching. As is to be expected, Frobe also spends a great deal of time interacting with local law enforcement (an estimated 40 times over a two-year period), who are prone to view people wandering around at night with suspicion.

Because these interactions rarely went well, Frobe decided to start recording his run-ins with the police. That didn't sit well with one officer, who arrested him under the Eavesdropping Act in 2010. Charges were never filed, but Frobe was concerned enough about future arrests that he sought a permanent injunction against the police to prevent them from arresting him under this act.

Thanks to the ACLU's victory in court, the state's Eavesdropping Act can no longer be applied in this fashion (i.e., recording police officers while on duty and in public places). The state Attorney General was ordered to cease prosecution of those who "violated" the unconstitutional law. According to the presiding judge, this rendered Frobe's complaint moot.

The attorney general has since publicly stated that it "will not prosecute or assist in prosecuting Frobe under the [IEA], because any prosecution of Frobe under the facts in his complaint would run afoul of the First Amendment."

"In the instant case, defendants have given public notice of the policy change, they have explained their reasoning, and they have abandoned the defense of the IEA as constitutional. Thus, it is not 'difficult to conclude that there is no reasonable expectation that plaintiff would be prosecuted under the statute in the future,'" the judge said.

While Frobe unquestionably had standing to challenge the Act when he filed his lawsuit, subsequent federal court rulings in other cases have succeeded in their challenges to the Act, and public officials have conceded the issue.

"Since the time of those decisions and public declarations, there have been no new prosecutions. In short, plaintiff Frobe no longer has a reasonable expectation that the Act will be enforced against him. His claim for injunctive relief is moot," Pallmeyer concluded.
Frobe stated in his suit that this declaration not to prosecute doesn't necessarily mean local police won't attempt to file charges against him for recording, but Pallmeyer pointed out (with several citations) that the state AG needs to be taken at his word until proven otherwise. This decision doesn't look like it will necessarily curb the number of run-ins Frobe will have with the police, but at least it means he's free to use his camera to keep them honest.

With the State AG declaring there will be no prosecution under this act, that only leaves the Cook County's state's attorney Robert Bonjean III who, along with Police Chief Tony Grootens, declared back in August that they would be selectively prosecuting cases of those charged under the unconstitutional act. This drew heat from the Illinois ACLU, which sent a letter demanding to know what exactly Bonjean meant by refusing to issue a "blanket statement" and vowing to prosecute on a "case-by-case basis."

At the point we covered it here, there had been no response. But it looks at though Bonjean has decided to join the rest of the state and follow the court's instruction.
State’s Attorney Robert Bonjean III will not be prosecuting anyone in Morgan County for audio-recording police officers performing their public duties in public places.

Bonjean has conveyed that assurance to the American Civil Liberties Union in response to a letter the group sent seeking clarification about whether anyone would face charges under a 1960s eavesdropping law...

“Consistent with the Alvarez decision in the northern district of Illinois, which would apply if (the ACLU) applied for a preliminary injunction in the central district, the Morgan County State’s Attorney’s Office will not prosecute those individuals who audio-record on-duty police officers, which was the finding of the ACLU v. Alvarez case,” Bonjean said.

Chief Grootens also made a similar statement.

“Our department will not arrest civilians if they audio-record any on-duty police officers in a public place,” Grootens said in a one-paragraph letter to Schwartz, dated Aug. 28.
So, now it's unanimous (finally). While the police may be highly uncomfortable with being filmed while on duty, they'll just have to tough it out. The law's no longer theirs to abuse.

Reader Comments

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  1. identicon
    Anonymous Coward, 2 Oct 2013 @ 10:14pm

    So why did Bonjean keep repeating "audio recording"?

    reply to this | link to this | view in thread ]

  2. identicon
    Anonymous Coward, 2 Oct 2013 @ 10:41pm

    Because Illinois state based their no filming on the wiretap law that required someone to give their permission prior to being audio recorded, not after. If you just film without audio you are not breaking the law. It is the audio portion that gets you in trouble or did.

    This is why Bonjean kept repeating 'audio recording'.

    reply to this | link to this | view in thread ]

  3. icon
    Bergman (profile), 2 Oct 2013 @ 10:50pm

    Something I've always wondered...

    If a prosecutor charges you with something that is not illegal, and a court finds that you did what the prosecutor alleges...

    Wouldn't that mean that you'd be sentenced to immediate release?

    reply to this | link to this | view in thread ]

  4. icon
    Chris (profile), 2 Oct 2013 @ 11:25pm

    Re: Something I've always wondered...

    Actually I think the judge would likely throw it out before it got even close to trial as even the worst lawyer should know the law.

    reply to this | link to this | view in thread ]

  5. identicon
    Anonymous Coward, 2 Oct 2013 @ 11:42pm

    A good victory, but I still think the five'O will arrest someone for filming them in public. They'll just bring up charges under a different law. Such as "distracting a police officer", even though you're filming them from 50 yards away.

    reply to this | link to this | view in thread ]

  6. identicon
    Jake Witmer, 3 Oct 2013 @ 1:38am

    Illinois is a grotesque totalitarian police state

    A friend of mine is now being bludgeoned by the IL courts. He's the top regenerative medicine specialist in IL, and has lost his entire career and all of his property in a "civil case" to his ex-wife. The judge actually ordered my friend to change careers, and "work only as an ER doctor," far below his ability level. He makes $350K per year, but his wages are garnished and he sees none of that money. His wife also took $1.89M in savings and two farms. My friend now eeks out a subsistence living borrowing money from his friends in spite of his high income, which is garnished to pay his ex and child support, ...all the money goes to his ex-wife, (whose entire college tuition was paid by my friend).

    Justice in the Soviet Socialist Republic of Illinois is totally random and arbitrary, the elected sociopaths and bureaucrats do whatever they wish, without even worrying about the law. They have assumed the position of predators, totally unchecked by the rule of law. They initiate violence freely, and have no worry that property rights will be observed. Like most organized crime, they do as they please. They know they have "sovereign immunity."

    Look up the case. My friend's name is Alex Cummings.

    Additionally, the entire state of Illinois has simply denied the existence of the Second Amendment for years, and thousands have died because of this totalitarian denial of the Bill of Rights. Now that the 7th Circuit Court has struck down their gun ban as unconstitutional, will the slaves of Illinois finally be able to carry concealed? No. The state is simply going to treat the right like a privilege, and make you jump through hoops and register yourself for a future ATF raid if you are "uppity" enough to demand your right to self-defense. If you get 16 hours of training from a licensed sociopath, then maybe, they will let you carry a potential life-sentence on your person (should you ever actually have to defend yourself).

    In IL, only the police are allowed to defend themselves, and only the police are allowed to commit murder, extortion, kidnapping, and theft. The little people had best stay out of the way of those who are above the law.

    If you live in Illinois, there is no law --there are only stupid people who keep voting for totalitarian, unaccountable government, and keep doing the bidding of sociopath judges when they get seated on juries.

    I wish the people of Illinois would wake up, but how can they? They got government school "educations," so they can't even identify the many ways they are enslaved. They won't even miss the money they lose to inflation, they won't even miss the money "withheld" from their paychecks. They can't imagine life without the government, and they can't imagine individual freedom.

    In short: Illinois will ultimately commit political suicide, just like Soviet Russia did. The safest course of action is to leave Illinois and watch it collapse from a distance.

    reply to this | link to this | view in thread ]

  7. identicon
    Anonymous Coward, 3 Oct 2013 @ 2:57am

    Google Glass and its numerous competitors will make those laws difficult to enforce.

    reply to this | link to this | view in thread ]

  8. identicon
    Bengie, 3 Oct 2013 @ 5:09am


    Some other company showed a semi-working prototype of Google Glasses, except it was contact lenses. Good luck detecting those.

    reply to this | link to this | view in thread ]

  9. identicon
    Anonymous Coward, 3 Oct 2013 @ 6:12am

    Re: Re:

    All of them will be required to include a backdoor kill switch which is given to the "authorities".

    reply to this | link to this | view in thread ]

  10. identicon
    Anon, 3 Oct 2013 @ 8:46am

    Re: Re: Re:

    Source please?

    reply to this | link to this | view in thread ]

  11. icon
    drkkgt (profile), 3 Oct 2013 @ 8:49am

    Chief Speaks

    Interesting wording though for the Chief:
    Our department will not arrest civilians if they audio-record any on-duty police officers in a public place
    So does this mean that they will arrest you if you film them in a private business? or your home? While this is probably over analyzing, this guy does seem to give words a twist when he speaks. (Reference his previous statement: "He honestly thought he was OK to do it, so now if he continues to do it, I canít tell you that he certainly wonít be arrested.Ē

    reply to this | link to this | view in thread ]

  12. identicon
    PRMan, 3 Oct 2013 @ 8:57am


    Because only the audio portion is against the law. The video was already fine.

    Of course, now the cops will greet you with, "Please step inside this apartment so we can have a word with you..."

    reply to this | link to this | view in thread ]

  13. identicon
    Chris Brand, 3 Oct 2013 @ 9:28am

    Re: Chief Speaks

    Well if you want to over-analyse, he doesn't say that they won't arrest them *for* recording, but that they won't arrest them *if they are* recording. If you take him at his word, you could get away with murder as long as you keep your recorder running...

    reply to this | link to this | view in thread ]

  14. icon
    AC Unknown (profile), 3 Oct 2013 @ 10:48am

    Re: Illinois is a grotesque totalitarian police state

    Welp. I guess that means that I'm not going to Illinois.

    reply to this | link to this | view in thread ]

  15. identicon
    Anonymous Coward, 3 Oct 2013 @ 10:16pm

    Re: Re: Re: Re:

    "Apple patents tech that lets government disable iPhone video, camera and wi-fi.

    Apple has a patent to disable "one or more functional or operational aspects of a wireless device, such as upon the occurrence of a certain event." For instance, the patent states, "Covert police or government operations may require complete 'blackout' conditions."

    reply to this | link to this | view in thread ]

  16. icon
    Niall (profile), 4 Oct 2013 @ 7:49am

    Re: Illinois is a grotesque totalitarian police state

    Much as I sympathise with your friend's plight, I think saying that (aside from the Second Amendment being in the Constitution, not the Bill of Rights, I believe) thousands of people have 'died' because of the government is usual pro-Second Amendment agitating. If the public not having guns is so fatal, why is the US gun-death rate (in all states) so many times higher than anywhere else in the developed world with tougher gun laws?

    Plus, Illinois-ers get the government they vote for. Welcome to how a lot of non-Tea Party people feel like in the Deep South.

    reply to this | link to this | view in thread ]

  17. icon
    Falindraun (profile), 4 Oct 2013 @ 12:19pm


    thanks for clearing that up, cause for a moment there i thought they were trying to pull a fast one and still arrest and prosecute for video recording cops.

    reply to this | link to this | view in thread ]

  18. identicon
    howard, 2 Dec 2013 @ 2:18am

    Re: Illinois is a grotesque totalitarian police state

    the JUDICIAL system in IL is giving the EX-wife all his income, is that even legal, how is he suppose to live? perhaps the judge is thinking he is hiding some income or money he is not declaring? and anyway, i thought only the IRS was able to do that? his only choice may be moving to another country! there are tons of countries in the world that would love to have him and his talents! they would invite him with open arms i am sure! this may not be worth fighting with the JUDGES and JUDICIAL system we now have here in the USA! they are all criminals, the JUDGES and all the POLITICIANS! i hope they all rot in HELL, which i am sure that they will!

    reply to this | link to this | view in thread ]

  19. identicon
    Paul Simon, 3 Jan 2014 @ 9:46pm

    Illinois Eavesdropping Still Alive

    The has issued an informational video and a press release, to help the media and the general public in the upcoming oral argument at the Illinois Supreme Court hearing in Annabel Melongoís eavesdropping case. The hearing is scheduled for January 14th, 2014, at the 18th floor of the Michael A. Bilandic Building, 160 N. LaSalle Street, Chicago at 9.30 am.

    Press Release:

    Please support this cause. The Illinois Eavesdropping law at its very core creates a two-class legal system wherein the conversations of the powerful and well-connected are protected to the detriment of the less powerful. The upcoming oral argument presents a unique opportunity for the common citizen to re-establish that legal balance that will unequivocally establish a right to record public officials in their public duties.

    Therefore, please contribute to this all-important hearing by either attending it, writing about it, spreading the word or just forwarding the below video and press release to anybody who might be of any help.

    reply to this | link to this | view in thread ]

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