Monthly Archives: February 2011

Letter to the Editor of the Belleville News Democrat 2/23/2011

This is a letter written to the Editor of the Belleville News Democrat and published on 2/23/2011

The link is here, but I can’t say how long it will be available.

Revolt like an Egyptian

America, you have been outdone. All of your posturing, platitudes and rhetoric are for naught.

The events that coalesced the Egyptian people to take a stand exist here in America, but nary a dissenting voice is raised against your keepers. How sad; and you call this the land of the free and home of the brave.

Egyptian blogger Wael Ghonim stated he had enough when he saw photos of a fellow Egyptian who died at the hands of police. He said the Egyptian police acted like they were in charge instead of the people. What caused a revolt in Egypt happens every day in America.

He also mentioned that you must first lose psychological fear; the fear government uses to keep you accepting its abuses. My fear left long ago. What are they going to do to me? The Fairview Heights Police already tried to kill me and failed.

Since that time I’ve filed a civil lawsuit and approached former State’s Attorney Bob Haida, State’s Attorney Brendan Kelly, and Judge John Baricevic with criminal charges. They have refused to answer or mishandled the information. I’ve approached the News-Democrat as well. There is no justice here.

I go into much more detail on my site at http://www.markmccoy.com.

You think you are free? You think you have responsive government? Think again.

America deserves what the Egyptian people gave their government.

Mark McCoy

 

This is a response to my letter from a News Democrat reader, Bev Mattison.

Proud to be an American

I need to respond to the recent letter by Mark McCoy.

My first thought after reading his letter was, seriously? Then I reread it. I couldn’t believe anyone would compare the United States government with Egypt.

I was especially amused by him comparing the person killed by Egyptian police to his apparent encounter with the Fairview Heights Police Department, stating, “Fairview Heights Police tried to kill me and failed.”

All deference to his overactive imagination, but if the Fairview Heights Police Department tried to kill him, they would have succeeded. Their training and professionalism are top-notch. They don’t make those types of errors.

McCoy also asks, “Do you think you’re free?” Yes, mostly. “Do you think your government is responsive?” Not always, but it’s far superior to most other countries.

As for America deserving what the Egyptian people gave their government, I agree. Ours took place about 236 years ago. It was called the American Revolution. You can Google it!

Bev Mattison

Fairview Heights

 

An Analysis of the Draconian Application of Illinois' Eavesdropping Law 720 ILCS 5/14

This article has been used as a reference source at Wikipedia http://en.wikipedia.org/wiki/Telephone_recording_laws

Illinois, the Land of Lincoln, aptly put since Lincoln was a usurper and despot, is one of the most notorious States for corruption and rights abuse. The festering pustule that is Chicago infects the rest of the State’s bloodstream by virtue of its government sponsored criminal enterprise. Chicago’s ills affect the rest of Illinois for the laws written to remedy that bastion of corruption. This article discusses the Illinois Wiretapping Law found at 720 ILCS 5/14.

As an example, I used a case I am somewhat familiar with involving a man who requested a court reporter and was denied. He then informed a clerk of the court that he would bring his own recorder. The judge later questioned him about the use of a recorder, which he did not deny. That information was later used against him in charging 5 violations of the Illinois Wiretapping Law. The case I refer to can be found here.

First, some glaring violations of due process are evident. The article states:

Just after he walked through the courthouse door the next day, Allison says Crawford County Circuit Court Judge Kimbara Harrell asked him whether he had a tape recorder in his pocket. He said yes. Harrell then asked him if it was turned on. Allison said it was. Harrell then informed the defendant that he was in violation of the Illinois wiretapping law, which makes it a Class 1 felony to record someone without his consent. “You violated my right to privacy,” the judge said.

This appears as though the judge, Kimbra Harrell, was conducting a criminal investigation by questioning Allison about the possible commission of a crime. If there was evidence of a crime, why was Allison not arrested, supported by a sworn complaint by the judge? The questioning of Allison by Judge Harrell violated his right to silence since the judge was gathering information used to charge the commission of a crime. The judge had no reasonable suspicion other than that of the clerk who probably mentioned it to the judge. There was no criminal act taking place at the time, since yesterday had passed where the alleged violation occurred, and I see no evidence of the State possessing the actual recording. Allison is being charged based on his answers to Kimbrell’s questions which were unlawful. This does not speak to any provision of the wiretapping law, but speaks to entrapment and violation of due process.

What is interesting is Harrell is claiming a violation of her privacy rights as a complainant. I’m sure there are microphones and cameras in her courtroom, as with most courtrooms, so what part of her privacy was violated by Mr. Allison? I spoke with Mr. Allison, and the details of his experience are quite amazing. It seems as though the charges facing him are retaliatory and contrived, if not meeting the definition of entrapment.

Quoting from Illinois Practice Series, Illinois Civil Trial Procedure by Michael J. Kaufman, Professor Of Law, Loyola University Chicago School Of Law. Part VI. Evidence § 22:11. Recorded conversations:

The Illinois Eavesdropping Statute expressly prohibits the recording of a conversation absent consent of “all parties” to the conversation.(1) Material obtained in violation of this statute is not admissible at trial.(2)Notwithstanding the plain language of this statute, the Illinois courts, somewhat inexplicably, have interpreted the statute to prohibit eavesdropping only where no party to the conversation consents.(3) So long as one party to a conversation consents to recording that conversation, the recording is not violative of the statute. Hence, a party who secretly records its conversations with a potential adversary without that adversary’s consent does not violate the statute. The secret recording presumably would be admissible into evidence.
(1) 720 ILCS 5/14-2.
(2) 720 ILCS 5/14-2.
See also Graham, Cleary and Graham’s Handbook of Illinois Evidence at 264 (8th ed. 2006).
(3) See, e.g., People v. Richardson, 60 Ill. 2d 189, 328 N.E.2d 260 (1975). No eavesdropping was found when an informant consented to having his telephone conversation with the defendant recorded by the State’s Attorney’s office.

Is it not interesting how the courts have, “somewhat inexplicably” held that recordings where only one party was taping or had consented did not violate the statute? Knowing this, and the prosecutors do, they still insist on pursuing charges against selected targets vindictively; more likely than not out of retaliation or intimidation for their audacity in confronting government.

Another interesting case is:

183 Ill.App3d 562 539 N.E.2d 234 131 Ill.Dec 881
David A. BENDER, Plaintiff-Appellant,
v.
The BOARD OF FIRE AND POLICE COMMISSIONERS OF the VILLAGE OF DOLTON, Illinois, Commissioner/Chairman Joseph Chantigney, Commissioner/Secretary Sam Ingala, Commissioner Robert F. Byrnes, and Commissioner William Hespel, and George Pfotenhauer, Chief of Police of the Village of Dolton, Illinois, Defendants-Appellees.
In this case, a police officer brought a complaint for judicial review of the final administrative decision of the board of fire and police commissioners to discharge him from his position. The Circuit Court, Cook County, George M. Marovich, J., affirmed, and police officer appealed. The Appellate Court, Freeman, P.J., held that police officer’s use of a pocket recorder to record a conver-sation he had with the chief of police was not eaves-dropping.

On March 3, 1986, plaintiff, who was on duty, had a conversation with the Dolton Chief of Police, George Pfotenhauer, in the latter’s office at the Dolton police station. At that time, Pfotenhauer asked plaintiff some questions regarding his overtime and his ownership or operation of a security company. During their con-versation, a cassette tape recorder which plaintiff had in his vest pocket made a beeping sound. According to Pfotenhauer, he then asked plaintiff whether he was recording their conversation. Plaintiff admitted he was and Pfotenhauer demanded that plaintiff surrender the tape. Plaintiff contended at the administrative hearing that he had not recorded his conversation with Pfotenhauer. However, on appeal, he does not dispute that he did so or that he refused Pfotenhauer’s order to surrender the tape.

Quoting from the decision:

On appeal, plaintiff contends that, assuming that he did record the conversation with Pfotenhauer, such conduct did not constitute eavesdropping as a matter of law. In support, he cites People v. Klingenberg (1975), 34 Ill.App.3d 705, 339 N.E.2d 456. Klingenberg held that the videotaping of an interrogation after a drunk driving arrest did not violate the eavesdropping statute despite the fact that the defendant did not consent to it. The court reasoned that, since the defendant made his statements directly to the police and intended that they hear his statements, he had no expectation of privacy therein, there was no interception of a private communication, and the recording was not intended to obtain otherwise inaccessible information. Klingenberg, 34 Ill.App.3d at 708, 339 N.E.2d 456.

Plaintiff relies on Klingenberg to argue that defendant’s decision was against the manifest weight of the evidence. However, we find that, if applicable here, Klingenberg requires a conclusion that defendant’s deci-sion was contrary to the law.

Defendant does not directly respond to plaintiff’s reliance on Klingenberg. Indirectly doing so, it argues that, assuming plaintiff did not commit the offense of eavesdropping, there is, nonetheless, a reasonable expectation of privacy in a superior’s conversation with an employee that prohibits the repetition of their communications. This is especially true, defendant argues, in law enforcement, where confidential 565 matters are routinely discussed and expected to remain undisclosed. Given that they occurred in the office of the chief of police while plaintiff was on duty, defendant concludes, there must be an expectation of privacy accorded the communications between plaintiff and Pfotenhauer.

We find defendant’s attempt to distinguish Klingen-berg unavailing. Because we conclude that Klingen-berg controls this case, we need not address whether Beardsley is retroactively applicable to it.

Defendant’s defense of plaintiff’s discharge on the ground that, even assuming he did not commit eavesdropping, he nonetheless violated Pfotenhauer’s reasonable expectation of privacy in their conversa-tion is flawed for several reasons.

The first is that, if plaintiff did not commit eaves-dropping, he did not violate any criminal law of the State of Illinois. If he did not violate any criminal law, he did not violate article 4, section 2.1 of the rules and regulations of the Dolton police department. If he did not violate that provision, there was no basis for charging a violation of article 4, section 2.2. thereof. Therefore, he should not have been discharged.

The second reason defendant’s argument is flawed is that plaintiff was charged with committing the criminal offense of eavesdropping and not merely with violating or breaching a superior’s reasonable expectation of privacy in confidential communications.

The third reason the argument is flawed is that, while conceding that plaintiff did not commit eavesdrop-ping, it asserts that he committed what is the basis of that offense, i.e., a breach of privacy. The generally accepted definition of eavesdropping is “ ‘to listen secretly to what is said in private.’ ” ( People v. Klingenberg (1975), 34 Ill.App.3d 705, 707-08, 339 N.E.2d 456.) The statute prohibiting eavesdropping is thus intended to protect the privacy of the individual. ( Klingenberg, 34 Ill.App.3d at 707, 339 N.E.2d 456.) Defendant, therefore, cannot logically concede that plaintiff did not commit eavesdropping and simultaneously assert that he violated Pfotenhauer’s privacy.

On a more fundamental level, defendant’s argument evinces a misunderstanding of the privacy interest which the prohibition against eavesdropping protects. As we read the case, Klingenberg was based, at bottom, on the fact that the same individuals to whom the defendant directed his statements and by whom he intended that they be heard recorded them. Klingenberg thus stands for the general principle that no eavesdropping occurs where an individual to whom statements are made or directed records them, even without the knowledge or consent of the person making the statements, because the declarant does not intend to keep his statements private vis-a-vis that individual.

Although we have found it unnecessary to decide whether Beardsley is retroactively applicable here, Beardsley is nonetheless noteworthy because it relies on and discusses Lopez v. United States (1963), 373 U.S. 427, 83 S.Ct. 1381, 10 L.Ed.2d 462, which the Klingenberg court cited in holding that no eaves-dropping occurs absent interception of a communication intended by the declarant to be private. ( People v. Klingenberg (1975), 34 Ill.App.3d 705, 708, 339 N.E.2d 456.) Lopez involved a revenue agent’s recording of a bribery attempt with a pocket recorder. In rejecting the defendant’s fourth amendment challenge to the admissibility of the recording, the U.S. Supreme Court concluded that the government did not use the recorder to listen in on conversations it could not otherwise have heard, but only to obtain the most reliable evidence of a conversation which involved a government agent and which he was therefore fully entitled to disclose. People v. Beardsley (1986), 115 Ill.2d 47, 55-56, 503 N.E.2d 346.

Like the police officers in Klingenberg and the revenue agent in Lopez, plaintiff did not use his pocket recorder to listen in on a conversation he could not otherwise have heard. As such, he did not commit eavesdropping in recording his conversation with Pfotenhauer. It therefore follows, a fortiori, that plaintiff did not violate article 4, section 2.1 or section 2.2. of the rules and regulations of the Dolton Police Department. With regard to the latter, the only legitimate basis which Pfotenhauer could have for ordering plaintiff to surrender the tape was his alleged violation of the eavesdropping statute. As he committed no such violation, Pfotenhauer had no right to the tape.

I will quote from one more case here before elaborating more on the language and applicability of the statute itself. This case is People v. Jansen, App. 5 Dist.1990, 203 Ill. App. 3d 985; 561 N.E.2d 312; 1990 Ill. App. Again, with this case, the court relied upon the reasoning in People v. Beardsley (1985), 139 Ill. App. 3d 819, 487 N.E.2d 731. A copy of that case can be downloaded here.

“The Beardsley court held that the ‘eavesdropping statute should not prohibit the recording of a conversation by a party to that conversation or one known by the parties thereto to be present.’ ( Beardsley, 115 Ill. 2d at 56, 503 N.E.2d at 351.) The court based its holding on the fact that a party to the conversation cannot be accused of listening secretly to what is said in private or of surreptitious interception of a private conversation, because that party is competent to testify concerning the contents of the conversation, and could have taken notes or transcribed the conversation, rather than recording it. ( Beardsley, 115 Ill. 2d at 58-59, 503 N.E.2d at 352.)”

Speaking to Mr. Allison’s case, specifically, given the history of the police, judges, and prosecutors in Bridgeport, I believe Mr. Allison has an affirmative defense under 720 ILCS 5/14‑3(i) which reads:

(i) Recording of a conversation made by or at the request of a person, not a law enforcement officer or agent of a law enforcement officer, who is a party to the conversation, under reasonable suspicion that another party to the conversation is committing, is about to commit, or has committed a criminal offense against the person or a member of his or her immediate household, and there is reason to believe that evidence of the criminal offense may be obtained by the recording;

In anticipation of further criminal conduct on the part of the Judge Harrell, Mr. Allison was preparing to document violations of law. His recording would therefore not be a violation of State statute since he was anticipating criminal conduct by Judge Harrell. I have yet to see the charging information, but I believe it will not stand the tests outlined in the above cases.

Furthermore, given the plain language of the statute, it would appear that the State of Illinois is itself guilty of this offense given that the Supreme Court of Illinois is the authority for determining who and how recordings of judicial proceedings are to be done.

From the Illinois Supreme Court website here http://www.state.il.us/court/SupremeCourt/Rules/Art_I/ArtI.htm#46

Rule 46. Official Record of Court Proceedings

(a) Taking of the Record. The record of court proceedings may be taken by stenographic means or by an electronic recording system approved by the Supreme Court. All transcripts prepared as the official record of court proceedings shall be prepared pursuant to applicable supreme court rules.

(b) Security of the Record. The confidentiality of court proceedings and the retention and safekeeping of notes and electronic recordings shall be maintained consistent with standards established by the Supreme Court through its Administrative Office.

(c) Court Reporting Personnel. For purposes of this rule and other supreme court rules regarding the official record, “court reporting personnel” shall include:

(1) court reporters as defined by the Court Reporters Act (705 ILCS 70/1);

(2) court personnel who have fulfilled the training and certification standards promulgated by the Supreme Court and consistent with paragraph (d) of this rule; and

(3) certified shorthand reporters hired through an agency or as an independent contractor by a private party or parties to take a stenographic record in court proceedings.

(d) Electronic Recording of Court Proceedings.

(1) The Supreme Court shall provide for and prescribe the types of electronic recording equipment that may be used in the circuit courts. Those jurisdictions with electronic recording systems installed are required to properly utilize and staff such equipment in order to produce a reliable verbatim record of the proceedings.

(2) Court reporting personnel, including court reporters as defined by the Court Reporters Act (705 ILCS 70/1), must successfully complete training and certification designed to qualify them to operate electronic recording equipment, prepare transcripts from such proceedings, and certify the record on appeal. Such training and certification shall be consistent with standards established by the Supreme Court, through its Administrative Office.

(3) Electronic recordings of proceedings shall remain under the control of the court having custody of them. The chief judges shall provide for the storage and safekeeping of such recordings consistent with the standards referenced in paragraph (b) of this rule.

(4) The Administrative Office shall monitor the operation of electronic recording equipment, the security of the electronic recordings, and the training of court reporting personnel to assure that each county is in compliance with this rule.

Adopted December 13, 2005, effective immediately.

 

When compared with the language of the statute here http://www.ilga.gov/legislation/ilcs/ilcs4.asp?DocName=072000050HArt%2E+14&ActID=1876&ChapterID=53&SeqStart=30900000&SeqEnd=32700000

(720 ILCS 5/14‑4) (from Ch. 38, par. 14‑4)     Sec. 14‑4. Sentence.

(a) Eavesdropping, for a first offense, is a Class 4 felony and, for a second or subsequent offense, is a Class 3 felony.

(b) The eavesdropping of an oral conversation or an electronic communication between any law enforcement officer, State’s Attorney, Assistant State’s Attorney, the Attorney General, Assistant Attorney General, or a judge, while in the performance of his or her official duties, if not authorized by this Article or proper court order, is a Class 1 felony. (Source: P.A. 91‑357, eff. 7‑29‑99; 91‑657, eff. 1‑1‑00.)

It appears that under direction of Supreme Court Rule 46, the State is committing an offense by recording judges and State’s Attorneys in the courtroom. Remember, the language of the statute reads:

(720 ILCS 5/14‑2) (from Ch. 38, par. 14‑2)     Sec. 14‑2. Elements of the offense; affirmative defense.

(a) A person commits eavesdropping when he:

(1) Knowingly and intentionally uses an eavesdropping device for the purpose of hearing or recording all or any part of any conversation or intercepts, retains, or transcribes electronic communication unless he does so

(A) with the consent of all of the parties to such conversation or electronic communication or

(B) in accordance with Article 108A or Article 108B of the “Code of Criminal Procedure of 1963”, approved August 14, 1963, as amended;

It is an affirmative defense when:

(b) It is an affirmative defense to a charge brought under this Article relating to the interception of a privileged communication that the person charged:

1. was a law enforcement officer acting pursuant to an order of interception, entered pursuant to Section 108A‑1 or 108B‑5 of the Code of Criminal Procedure of 1963; and

2. at the time the communication was intercepted, the officer was unaware that the communication was privileged; and

3. stopped the interception within a reasonable time after discovering that the communication was privileged; and

4. did not disclose the contents of the communication.

Therefore, absent any of the preceding exceptions and affirmative defenses, it is illegal to record court proceedings absent consent from all parties, including defendants, and even harsher penalties are imposed when recording judges and State’s Attorneys. Maybe it would be wise for someone to apply for injunctive relief from the courts for their not consenting to being recorded in court. The statute makes an allowance for this:

(720 ILCS 5/14‑6) (from Ch. 38, par. 14‑6)     Sec. 14‑6. Civil remedies to injured parties. (1) Any or all parties to any conversation upon which eavesdropping is practiced contrary to this Article shall be entitled to the following remedies:

(a) To an injunction by the circuit court prohibiting further eavesdropping by the eavesdropper and by or on behalf of his principal

In the mean-time, lets move on to the Legislative debates regarding the amendment to this statute which they hoped to circumvent the Appellate Court’s holding in Beardsley.

Looking now to legislative intent. What better place to look at what the legislators who wrote the law intended than the debates on the Bill. This information came from the Illinois Legislature’s Website.

STATE OF ILLINOIS 88TH GENERAL ASSEMBLY REGULAR SESSION SENATE TRANSCRIPT 57th Legislative Day May 21, 1993

PRESIDING OFFICER: (SENATOR WATSON)
House Bill 1787. Senator Barkhausen. Read the bill, Madam Secretary.

ACTING SECRETARY HAWKER:
House Bill 1787.
(Secretary reads title of bill)
3rd Reading of the bill.

PRESIDING OFFICER: (SENATOR WATSON)
Senator Barkhausen.

SENATOR BARKHAUSEN;
Thank you, Mr. President. House Bill 1787 does two things. First, it restores the requirement that all parties consent to a — to a recording of conversations, which requirement was negated
Page 70

by the Illinois Supreme Court decision in People vs. Beardsley. Second, the bill was amended in committee to make law enforcement use of consensual eavesdropping consistent with laws that apply in forty other states and are used by the Federal Government by deleting a court order requirement in a very limited set of circumstances. The police must notify the State’s attorney of the investigation, and the recording must be necessary to protect officer safety and then only in the investigation of a felony drug offense, forcible felony or gang-related felony. The recording may not be used in any proceeding except where a party to the conversation recorded was injured or killed. Most states do not have any court order requirement on these — in these cases; so this bill is a very modest step to put Illinois in line with the practices of a number of other states – most other states. In addition, I should say the discussions are ongoing between the House sponsor and the State Police, who were the proponents of the amendment, and the bar associations and our staff, on this amended provision. A tentative agreement has been reached that will be the basis of a possible conference committee report that will move the objections that some of the bar association representatives have had to the second part of the bill. I urge your support.

PRESIDING OFFICER: (SENATOR WATSON)
Seeing no — no discussion — Senator Molaro.

SENATOR MOLARO:
Yes, thank you Mr. President, Ladies and Gentlemen of the Senate. Senator Barkhausen just touched on — said it’s going to conference committee, and I do believe that’s true, but I must just point out, they’re saying this for the safety of the officers. Well, it certainly makes sense that anytime anybody who’s working under cover or goes into a position where their life is in jeopardy or their safety is in jeopardy, well it certainly makes sense to me that the people on the outside in the cars,
Page 71

while this officer’s in the inside, should know what’s going on. That certainly makes sense. However, when I asked the question in committee — well, if all they need is to know to have the headset on and listen to these conversations so they know when it might be – a tough situation and react to it for the officer’s safety, I said that’s terrific. But why change the eavesdropping law? Why do we have to record this, and why can we then use it as evidence in — in a — in an upcoming trial if there is one? And they said, “Well, because we do.” Well, that’s why we have the objections. Safety is one thing; taking away the Fourth Amendment is another thing. And I think it’s dangerous, in the interests of safety and law and order, that every time there’s a bill like this, we want to be tough on crime, that we just blindly vote Yes, and we’re picking away and chopping away at the Fourth Amendment. And I — and I think it’s dangerous. Thank you.

PRESIDING OFFICER: (SENATOR WATSON)
Seeing no further discussion, Senator Barkhausen, to close. I beg your pardon. Senator Hall.

SENATOR HALL:
Will the sponsor yield for a question?

PRESIDING OFFICER: (SENATOR WATSON)
The sponsor will yield, Senator Hall.

SENATOR HALL:
Why is the Cook County Public Defender opposed to this? PRESIDING OFFICER: (SENATOR WATSON)
Senator Barkhausen.

SENATOR BARKHAUSEN:
Not having been a party to conversations with the Public Defender, I — I’m not sure, Senator Hall. They have been historically, philosophically opposed to most anything that had to do with eavesdropping.

PRESIDING OFFICER: (SENATOR WATSON)
Page 72

Senator Hall.

SENATOR HALL:
According to my notes it says the ISBA, the Cook County Public Defenders, say they believe the tapes should not be admissible at a trial. Are these tapes going to be admissible at a trial?

PRESIDING OFFICER: (SENATOR WATSON)
Senator Barkhausen.

SENATOR BARKHAUSEN:
Yeah. The — the — I’m told that the Public Defender has been involved in — in some of these discussions, and has been participating on efforts to arrive at a compromise that will be embodied in the conference committee report that we anticipate.

PRESIDING OFFICER: (SENATOR WATSON)
Further discussion? Senator Fawell.

SENATOR FAWELL:
Thank you — thank you very much. Now, I understand what the sponsor is trying to do. Obviously, he’s trying to be very tough on — on — on drugs and — and all this kind of business. But I’m going to tell you, I’ve — I’ve had some acquaintance with some small town policemen who, frankly, go a little overboard sometimes when they start looking at the rights of citizens versus trying to find big drug — big operations, especially in these small towns. I’ve known of — of small town police that have taken hatchets and — and broken down doors, in — in one of my towns, in the middle of the night, and unfortunately, they had the wrong house. I know of another case where they tried to confiscate a — a plane in DuPage Airport, and they had the wrong plane. They almost killed the pilot in the process of trying to stop the plane from — who was in the process of taking off and landing and trying to become a — a pilot. You know, I just think sometimes we’re just going too darn far with some of these things. I think the speaker on the other side has a — has a good point.
Page 73

You know, we have a — a Constitution and a Bill of Rights for a reason. I think this bill goes way too far, and we ought to stop and think what we’re doing.

PRESIDING OFFICER: (SENATOR WATSON)
Further discussion? Senator Dudycz.

SENATOR DUDYCZ:
Well, thank you — thank you, Mr. President. I’d just like to share a few facts with Illinois’ consensual electronic surveillance legislation, where currently the Illinois court order requirement for consensual electronic surveillance endangers police officers. It impairs investigations of — of gangs, of drug trafficking and other crimes, and it also unnecessarily overburdens prosecutors in the court system. Illinois, of all the fifty states, is the most restrictive in the whole United States of America in respect to consensual electronic surveillance. There are over forty states in the federal — and the Federal Government, which allow law enforcement to utilize consensual electronic surveillance as an investigative tool without a court order, not “with”, but “without” a court order. Of the remaining states, the restrictions placed upon law enforcement are limited. And none of them, of the remaining states, are as restrictive or as severe as what we have in Illinois. A few more facts, Ladies and Gentlemen. Police must make…

PRESIDING OFFICER: (SENATOR WATSON)
Could we have some order, please? Thank you.

SENATOR DUDYCZ:
Police must make application to a court showing probable cause for a felony. Well, in — in Illinois, also, for your information, should the application made by the police officers would be denied, the police officer must notify the suspect in writing within ninety days that an attempt was made – not that it
Page 74

was completed, but an attempt was made – to obtain an order. Also, it compromises the investigation of the law enforcement community and possibly the safety of the undercover officers that are out there protecting us. And in Illinois, police are limited to ten days in which to conduct a court-authorized consensual surveillance, and once the surveillance has been conducted, in Illinois, the police are required to notify the suspect within ninety days. I — I disagree with Senator Fawell. This is — this bill is not going too far. Some would say that this — bill does not go far enough, but I would say, it’s a good — a good bill to begin with, and I would seek the affirmative support of everybody in the Senate.

PRESIDING OFFICER: (SENATOR WATSON)
Further discussion? Senator Berman. Senator Berman.

SENATOR BERMAN:
Thank you, Mr. President. I rise in opposition of this bill. If you look at this bill, this is a blank check for any police officer or investigator to come in and wiretap your phones, your constituent phones, and they are off the hook. They can give any excuse they want. They were doing some investigation for some idea or other. When Senator — Dudycz says that Illinois is the most restrictive, he may say that in a critical way. I’m glad to hear that, in a very proud way. We have some protection for our citizens regarding eavesdropping, and 1 think that that should be a — a point of law in Illinois that we should all go home and be very proud of. Citizens that are not charged with crimes have a degree of private conduct, private conversation, that we, as lawmakers, respect. The way — best way to continue to respect that private conversations of our voters is to vote No.

PRESIDING OFFICER: (SENATOR WATSON)
No further discussion? Senator Barkhausen, to close.

SENATOR BARKHAUSEN:
Page 75

Let me say a couple of things in — in closing, Mr. President. First, I think it’s important to — to respond immediately to the comments made by the prior speaker. This bill has absolutely nothing to do with authorization to conduct wiretaps. The distinction between wiretaps and nonconsensual eavesdropping needs to be understood. Wiretapping involves overhearing a conversation between two individuals, neither of whom is a law enforcement official, and this has nothing to do with the subject of — the circumstances under which one can obtain authorization to overhear a conversation between two unrelated parties. Consensual or nonconsensual eavesdropping, on the other hand, has to do with — with recording, if you will, and under what circumstances, conversation in which one of the parties is a law enforcement official, and that’s what we’re talking about here. And what this bill in its current form would permit is — is the use of consensual eavesdropping; that is, a conversation being in which one of the — one of the members is — is a law enforcement official, to permit that to be overheard by another police officer, so that they might go to that officer’s rescue if he or she gets into trouble. Now, that conversation could be — could be recorded and a recording of that conversation could be used, as the bill is now written, only where an — an individual is either injured or killed at the time that conversation is recorded. Now, as I said, this is going back to the House. It’s anticipated that there will be a non-concurrence in the amendment for the purposes of a conference committee, in which, as I also said, there is already tentative agreement with the bar associations. Most of the individuals, as you know, from the bar association that were involved in these types of issues are criminal defense lawyers. So, if what we’re talking about here will ultimately be something that they agree to, then I submit to you that this is not at all objectionable, and it’s at least a step in the right direction,
Page 76

from the standpoint of law enforcement. I ask for your support.

PRESIDENT PHILIP:
All right. The question is, shall House Bill 1787 pass. Those in favor will signify by saying Aye. Those opposed, Nay. The voting is open. Have you all voted who wish? Have you all voted who wish? Take the record. On the question, there are 35 Ayes, 21 Nays, 2 voting Present. House Bill 1787, having received the required constitutional majority, is declared passed.

STATE OF ILLINOIS 88TH GENERAL ASSEMBLY REGULAR SESSION SENATE TRANSCRIPT 69th Legislative Day June 29, 1993

Committee Report No. 1, House Bill 1787.

Madam Secretary, do we have a file — a Conference Committee Report on House Bill 1787?

ACTING SECRETARY HAWKER:
First Conference Committee Report on House Bill 1787.

PRESIDING OFFICER: (SENATOR DUDYCZ)

Senator Barkhausen.

SENATOR BARKHAUSEN:
Thank you, Mr. President and Members. The Conference Committee Report on House Bill 1787 is fairly close to the form in which it was previously approved by the Senate. The subject of the bill is consensual eavesdropping, meaning a — a conversation in which one of the parties…

PRESIDING OFFICER: (SENATOR DUDYCZ)
Pardon me, Senator Barkhausen.

SENATOR BARKHAUSEN:
…one of the parties consents to the conversation – in this case, a law enforcement official. The bill allows this conversation to take place without court approval in order, and in those situations where it is necessary, to protect an undercover officer conducting an investigation. Furthermore, the — the bill allows a limited form of admissibility of the content of a conversation, but only in those situations where a party to the recorded conversation is killed or suffers great bodily harm, or
Page 23

for the purpose of the direct impeachment of a witness. There are, in addition, certain bookkeeping and notice requirements that would be required of those recording such conversations. The bill is a product of a compromise between the Illinois State Police, who originally brought it to us, and the Illinois State Bar Association. I should note that it puts Illinois into the mainstream of some forty-eight other states that allow consensual eavesdropping without a court order and — and with full admissibility. This, I emphasize, only allows admissibility of such recordings under very limited circumstances. I ask for your support.

PRESIDING OFFICER: (SENATOR DUDYCZ)
Any discussion? Senator Molaro.

SENATOR MOLARO:
Yes. Thank you, Mr. President, Ladies and Gentlemen of the Senate. What we have here — if you recall this bill, this is the bill where sometimes during the course of an investigation – and why this is being brought up – you would have State troopers or undercover officers being put in a position where their safety may be in jeopardy. So what they want to do is, when they go and they’re undercover, or they’re going to be at some buy or some bust and they’re going to be dealing with these gang members or drug dealers, they want to be able to have a device and eavesdrop on conversations they’re having with these drug dealers. And the reason they want the device, so the team that’s outside of this area, if something is going down that the safety of the officers is in jeopardy, they would be able to go in and supposedly save the officers. Well, that’s terrific, and that’s noble, and that’s a great idea. And it should be there. So we’re going to make an exception to the Eavesdropping Law. In Illinois right now you either have to have both parties’ consent or you need a court order. What we’re going to do is make an exception and say, since
Page 24

of course the drug dealers are never going to okay recording their conversation, we’re going to have an exception. If the police officer or undercover agent can wear the device, he does not need a court order, and he will not be guilty of the — violating the Eavesdropping Statute. And that’s terrific. But what this amendment says – and it goes a little further – and what it says is that any recording derived as a result of this exception — now, they’re not only going to wear it so the police officers outside can hear it; they’re going to record it now. And it says any recording derived as a result of this exception shall be inadmissible in any proceeding, except where a party present during such recording is injured or killed. Now, if you’re going to make an exception, and you’re going to allow the recording to be used as evidence – and I don’t see why we’re going to use this recording as evidence if we’re only allowing the eavesdropping for the safety of officers – why we’re now going to make it admissible if the party’s injured. In other words, if you’re going to have a right of privacy and you’re going to have a Fourth Amendment, either you’re going to need a court order or you don’t. You can’t say we’re going to make it admissible because someone got hurt. There’s no correlation. There’s no logic to it. It doesn’t make any sense. Either it’s admissible or it’s not. Either we’re going to violate the Fourth Amendment or we’re not. Either we’re going to chip away at it or not. To come up and say that it’s not admissible unless someone gets hurt – there’s no logic to it. What I think we’re having is, we’re going to have an end run to chip away at the Fourth Amendment and say it’s officer safety issue. The officer can wear the device. He can have his men outside. There is no reason to record it, and there is no reason whatsoever to make it admissible. Thank you.

PRESIDING OFFICER: (SENATOR DUDYCZ)
Any further discussion? Senator Palmer.
Page 25

SENATOR PALMER:
Thank you, Mr. President. I want to follow up on Senator Molaro’s line of thinking. As I read my analysis, there are some other disturbing factors in here. And correct me if I’m wrong, Senator Barkhausen, but as I read this, it says that the Director of the Department of State Police shall issue regulations. And I would wonder: Is that the only check that we have on what I consider coming close to the wind on violating the Fourth Amendment? Secondly, it says “any private oral communication”. Does that mean that if someone is in a room with a suspected person and unwittingly is part of a conversation, that that innocent bystander’s conversation also becomes part of this record? And finally, again, this question of officer safety. If that is the only purpose of this bill, why will this written record of the interception or the recording be kept for ten years, and who is the custodian of that tape for those ten years, and does the person who has been recorded know that such information has been kept for ten years?

PRESIDING OFFICER: (SENATOR DUDYCZ)
Senator Barkhausen.

SENATOR BARKHAUSEN:
Senator — Senator Palmer, it’s — it’s been pointed out to me that the — that the regulations are basically consistent with current law and practice, and furthermore, at — really at the behest of those negotiating on behalf of the State Bar Association, the — the bill, in its current form now, requires the bookkeeping and notice requirements that are similar to nonconsensual eavesdropping, so that defendants can determine if proper procedures are being followed.

PRESIDING OFFICER: (SENATOR DUDYCZ)
Senator Palmer.

SENATOR PALMER:
Page 26

Thank you. I suggest, though, that that is after the fact – what’s done with the tape. That does not answer the question ahead of time: that we are sailing very close to the wind, as far as I’m concerned, in a Fourth Amendment right of not being recorded in such a way. I think- this is a very, very dangerous precedent to set.

PRESIDING OFFICER: (SENATOR DUDYCZ)
Further discussion? Senator Hendon.

SENATOR HENDON:
Thank you, Mr. Chairman. Will the sponsor yield?

PRESIDING OFFICER: (SENATOR DUDYCZ)
Sponsor indicates he will yield. Senator Hendon.

SENATOR HENDON:
Senator Barkhausen, I see — I have just a few questions. It says here that the recordings will only be done if a officer’s life is in jeopardy. Isn’t an officer’s life always in jeopardy out there on the streets?

PRESIDING OFFICER: (SENATOR DUDYCZ)
Senator Barkhausen.

SENATOR BARKHAUSEN:
This only applies to drug investigations and forcible felonies.

PRESIDING OFFICER: (SENATOR DUDYCZ)
Senator Hendon.

SENATOR HENDON:
Can — will you name the — the long list of enforcible <sic> felonies for this Body?

PRESIDING OFFICER: (SENATOR DUDYCZ)
Senator Barkhausen.

SENATOR BARKHAtJSEN:
We can probably, if you’re interested, give you a cite to -Section of Chapter 38 defining the forcible felonies.
Page 27

PRESIDING OFFICER: (SENATOR DUDYCZ)
Senator Hendon.

SENATOR HENDON:
My question is, Senator: How many felonies fall into that category? And — and the reason why is we need to know — everyone in this Chamber needs to know how wide-ranging this use of recording devices. And I’m all for protecting police officers’ lives, but I saw — I read in the paper just the other day where another officer was killed stopping someone for a traffic violation. So a officer’s life is always in jeopardy. So we need to know exactly how far-reaching this clear violation, in my opinion, of the Fourth Amendment actually is.

PRESIDING OFFICER: (SENATOR DUDYCZ)
Senator Barkhausen.

SENATOR BARKHAUSEN:
Investigation of a traffic violation would not be one of them. There are twelve that are enumerated, and then it — the ones you would pretty well assume are included, obviously including murder, kidnapping and the like, and then there’s sort of a catchall phrase at the end: resulting in great bodily harm or permanent disability or disfigurement.

PRESIDING OFFICER: (SENATOR DUDYCZ)
Senator Hendon.

SENATOR HENDON:
Thank you, Mr. Chairman. I have in front of me Section 5-28 <sic> (5/2-8) and describes forcible felony: treason, first degree murder, second degree murder, aggravated criminal sexual assault, criminal sexual assault, robbery, burglary, arson, kidnapping, aggravated battery resulting in great bodily harm or permanent disability, and on and on and on and on and on. So it’s practically everything, including burglary and any — any old thing. And I’m just saying that this is far — far too
Page 28

outreaching here. And my other question: Why in the world would the records be held for ten years if it was simply there to protect the officer? That officer may be retired and came to the State Senate in ten years.

PRESIDING OFFICER: (SENATOR DUDYCZ)

Senator Barkhausen.

SENATOR BARKHAUSEN:
Mr. President, I’m glad to try to answer these questions. I mean, bottom line: If people are more interested in the — in the rights of criminal defendants than they are in police officers investigating dangerous felonies, don’t vote for the bill. I mean, the bill is supported by the State Bar Association, which, in my experience, after thirteen years as a Member of the Judiciary Committee watching representatives of the bar associations come in and — and continually take position on behalf of criminal defendants and against the positions of prosecutors in this State, the fact that they are for this bill ought to tell us something.

PRESIDING OFFICER: (SENATOR DUDYCZ)
Senator Hendon.

SENATOR HENDON:
I — I am personally offended by that, but I — I’m not going to let it bother me, because worse things have been said about me on this Floor. But I think that it is — it is a shame for you to stand there, Senator, and try to imply that people who are concerned about innocent people, who are simple bystanders who may simply be talking to someone that they didn’t even know was a drug dealer, or a burglar, or an arsonist or whatever, that they’re concerned about — about the criminal. We’re concerned about the innocent bystander. You, Senator, could be out there tomorrow. The Gentleman standing next to you — you don’t know what he does in his off-hours. You simply do not know. So anybody can be
Page 29

standing next to somebody in an innocent conversation and that person is under investigation for whatever reason – and I named the entire list here. And it is wrong for you to stand there and imply that those of us who are against this intrusion that — and against people that are innocently recorded and kept for ten years, that we are supporting criminals and against the police. I just want you to know, sir, that I happened to pass a — a lot of law-and-order legislation in the City Council, and have some here in this Chamber that were buried by the — the various chairmen of those committees, or Judiciary. So I am offended by your implication, sir. And what you need to look at is what happens to the innocent bystanders who have absolutely nothing to do with that particular criminal investigation. And I’d like for you to address that. What happens to the innocent people? It says here that the judge “may” – may – give them notification and “may” give them a copy of the tape, when it should say that the judge “shall” give any innocent bystander a copy of whatever was recorded to
them. Why doesn’t it say that the judge “shall” give them that information?

PRESIDING OFFICER: (SENATOR DUDYCZ)
…(microphone cutoff).. .assume that’s a rhetorical question, Senator Hendon. It’s a question. Senator Barkhausen. SENATOR BARKHAUSEN:
Let me, if I may — I know Senator Hawkinson has been waiting to speak. Maybe — I think his remarks will address answers to your question and some other points as well.

PRESIDING OFFICER: (SENATOR DUDYCZ)
Senator Hawkinson, to answer senator sermon’s question. Senator Hendon.

SENATOR HENDON:
Thank — thank you, Mr. Chairman, and I certainly have a great deal of respect for my aisle mate here, but I did not ask Senator
Page 30

Hawkinson the question; I asked the question to Senator Barkhausen – and it is his bill – and I want to know what is his opinion of why innocent people do not get a copy of the tape recording that they don’t even know exists of — of their conversation. They may not — that tape may allow them to know for the first time that that person is a criminal. Why can’t they get the copy of the tape?

PRESIDING OFFICER: (SENATOR DUDYCZ)
Senator Barkhausen.

SENATOR BAREHAUSEN:
Section 14-3B provides that notice of interception or recording is — is given to the individual not later than a hundred and twenty days after the termination of interception or recording or immediately upon the initiation of criminal recedings — proceedings. So, you know, there is notice.

PRESIDING OFFICER: (SENATOR DUDYCZ)
Further discussion? Senator Hendon.

SENATOR HENDON:
And — and, Mr. Chairman, I’m trying to be brief, but — but the sponsor is kind of skating around the issue here. Section (f) <sic> (b) says that a court “may in its discretion” – may – m-a-y – at its discretion – “make available to those persons or their attorneys for inspection those portions of the intercepted communications…” It says “may”. It does not say “shall”. And it says at the court’s discretion. I’m simply asking, why doesn’t it say that the court “shall” give those innocent people copies of that communication?

PRESIDING OFFICER: (SENATOR DUDYCZ)
Further discussion? Senator Hawkinson.

SENATOR HAWKINSON:
Thank you, Mr. President. Just a couple of points. I rise in support of the Conference Committee to House Bill 1787 for several
Page 31

reasons. One — one is a reason that, if I’ve listened carefully, has not been mentioned yet. There’s another important aspect to this bill, other than the one that’s been discussed. In Illinois, we have one of the strongest Eavesdropping Statutes in the nation. It goes far beyond the requirements of the Fourth Amendment to the Constitution or the Illinois Constitution, and that Eavesdropping Statute has made it an offense and prohibited one citizen from recording another citizen over the telephone, or otherwise, unless there’s consent of both parties. That goes far beyond what the Fourth Amendment requires, and that applies to all of us. A few years back the Illinois Supreme Court, in a — in a decision – the Beardsley decision – essentially overturned our own Statute and -and authorized citizens to start taping each other. This bill will revert that law back to what we intended it with our Eavesdropping Statute, so that citizens — private citizens will not be able to tape each other without consent. And that’s an extremely important part of this bill. It’s something that Senator Cullerton had in another piece of legislation. And this will make our law consistent again, and actually is more protective of our rights of privacy than is the current state of the law in Illinois. Secondly, on the part of the bill that has had the discussion so far: Arguably, the Beardsley decision would allow law enforcement to tape any conversation – not just those enumerated in this bill. This bill does not violate the Fourth Amendment. And I — I rose initially to indicate that we’re really not talking about implicating any change in the Fourth Amendment. Obviously, we’re not able to do that. The federal government currently allows wiretapping on all federal offenses in this manner, and clearly, the original bill, which we passed out of here, would allow a far broader wiretapping than this bill does. The Bar Association had objections to that. They have negotiated this out, and this bill is really a far more limited
Page 32

use and — and — occurs in only two cases: one, where someone is actually recorded and then gets on the witness stand and lies, and you can use that recording as direct impeachment; the other exception is the great bodily harm – the bodily harm exception. And I understand that was part of the — the compromise suggested by the Bar Association. There’s a legitimate public policy argument, as suggested by Senator Molaro’s remarks, over whether we ought to do that in great bodily harm or not, but I don’t think that the Fourth Amendment is implicated. And I would urge your approval of the Conference Committee Report to 1787.

PRESIDING OFFICER: (SENATOR DUDYCZ)
Senator Barkhausen, to close.

SENATOR BARKHAUSEN:
Thank you, Mr. President. Let me — let me start by — by offering an apology, if — if any of my remarks were taken as a — as a personal offense. I — I am just simply puzzled that Illinois has been so behind the times in moving in the direction of criminal law enforcement policy that the federal government and more than forty other states have already taken, and we’re moving, you know, ever so slightly in the same direction by passing this bill, if we do. And — and that was the reason for my remarks, and I again urge your support.

PRESIDING OFFICER: (SENATOR DUDYCZ)
The question is, shall the Senate adopt Conference Committee Report No. 1 on House Bill 1787. Those in favor will vote Aye. Opposed, vote Nay. And the voting is open. Have all voted who wish? Have all voted who wish? Have all voted who wish? Take the record. On that question, the Ayes are 40, the Nays are 14, 4 voting Present. The Senate does adopt Conference Committee Report No. 1 on House Bill 1787, and the bill, having received the required constitutional majority, is declared passed.
Page 33

STATE OF ILLINOIS 88th GENERAL ASSEMBLY HOUSE OF REPRESENTATIVES TRANSCRIPTION DEBATE 75th Legislative Day June 30, 1993

Daniels: “Thank you Mr. Speaker, Ladies and Gentlemen of the House. Just to acknowledge that our most distinguished Governor of the State of Illinois, Jim Edgar is with us this morning.., this evening.
Steczo: “The Chair would like you to welcome the Honorable 3overnor to the chamber this evening. On Supplemental Calendar #1, appears House Bill 1787, under the Order of Conference Committee Reports. The Chair recognizes the Gentlemen from Cook, Representative Dart.”

Dart: “Thank you Mr. Speaker and Members of the House. House Bill 1787 is the result of the discussions and compromises made by the Department of State Police and the Illinois State Bar Association. It does two things, one of which is a clarification to straighten out the law in regards to consensual overhears.. The second part of it deals with consensual overhears for police officers’ safety, with numerous provisions in there to safeguard it. I would be happy to answer any questions.”

Speaker Steczo: “The Gentleman has moved for the adoption of the First Conference Committee Report on House Bill 1787. On that question, is there any discussion? The Chair
recognizes the Gentleman from Will, Representative Wennlund.”

Wennlund: “Thank you Mr. Speaker, Ladies and Gentlemen of the House. I rise in support of the Bill. What this does, and it’s strongly supported by the Illinois State Police, what
Page 24

it does is, it gives officers some method of protection against walking up to that car at night, or getting involved in a drug bust and…so that other state police can monitor that officer and watch out of his safety and
rescue him in the event he meets some undue force. It’s something that will help state police and other police agencies fight the war on drugs, and I urge your support.”

Speaker Steczo: “The Chair recognizes the Gentleman from Fulton, Representative Homer.”

Homer: “Will the Gentleman yield?”

Speaker Steczo: “He indicates that he will.”

Homer: “Representative Dart, would you advise us to the current status of the Illinois State Bar Association?”

Dart: “This was the result of working with them for a extended period, and I believe they’re at least neutral. They may be in support of it, that…I’m not willing to say they’re in support of it, but I know they’re at least neutral on it. A lot of this language is theirs.”

Homer: “Did the provision go into this report that was being requested by them to close the disparity in interpretation between statutory and common law with respect to one party consent? Did their language go in the Bill?”

Dart: “Yeah. That’s the one in answer to the Beardsley case. It was specifically drafted by them to try to clarify that so there is no more confusion on that.”

Homer: “Thank you.”

Speaker Steczo: “The question is, ‘Shall the House adopt the First…the Chair recognizes the Lady from Cook, Representative Davis.”

Davis: “Will the Gentleman yield?”

Speaker Steczo: “He indicates that he will.”

Davis: “Representative, this is really an eavesdropping Bill, is
Page 25

that correct?”

Dart: “No, what the Bill does, is it clarifies what we already presently have in law in regards to consensual overhears right now. There was a court which.. ,well, I say misinterpreted the statute which basically allowed for an individual to tape record another person’s conversation without any protections whatsoever. That’s the first provision of this. What this Bill does is says that you cannot do that, that is not something we will allow to occur, that’s the first provision. The second one says in these limited instances where a police officers safety is involved, that they can get through going through an elaborate procedure with the States Attorneys office and record keeping and notice provisions, they can get..be allowed to wear wire when they are in like drug purchases and the like.”

Davis: “So, let me be sure I understand you now. You’re saying the first provision is; that before a person can eavesdrop or record your conversation, you must be notified and give consent.”

Dart: “Exactly. What had.. .that’s how the law actually reads, but a court misinterpreted it as far as I.. .my view is. They interpreted it so that they said that only one party has to know its going on, and the court.. .they said that the other person had to actively demonstrate they have an expectation of privacy before it’s prohibited. So, this clarifies it and says that you have to tell the other person before you can do this.”

Davis: “Okay, now let me ask you this. On, I guess the other page here, it says ‘provides that any recording or evidence derived as a result of the exemption is inadmissible, unless the jury or impeachment exception implies.’Wanna
Page 26

explain that section?”

Dart: “What this is says, is that the information that is obtained cannot be used against the defendant unless the police officer is killed or great bodily injury so that he’s paralyzed or something he can’t come to court, those are the only times that any type of hearing could be used. The defense attorney, on the other hand, could use it if the defendant’s saying that the police officer took the dope and threw it at em, and the police officer is saying no I didn’t, I bought it off him, the defense attorney could use that information to impeach the police officers testimony.”

Davis: “Okay. What about #5; ‘requires notice to the person who was the subject of the interception or recording within a reasonable time.’”

Dart: “With.. .no more than 120 days. Present statute…” Davis: “But, this is after the fact.”

Dart: “It mirrors the present existing statute in regards to this.”

Davis: “Representative, does this take away existing freedoms from people? I don’t mean the protection of criminals, but I mean, are we taking away the freedoms that some people have who could be innocent, but because of this particular law they could go through an awful lot of difficulty?”

Dart: “No, because matter of fact the way the law is written, in particular it says that the States Attorney would not be able to use any of those tape recording devices anyway, so it’s not as if that’s gonna harm anybody. That …… be used. The States Attorney can’t walk in there with a tape and say I got you on tape. The only way that tape could ever be used is if the police officer who was.., in the narcotics transaction was shot and killed for instance.”
Page 27

Davis: “Let me say this, you know we could talk about narcotics transactions and all we want. I’m gonna be honest, I’m not interested in that.”

Dart: “That’s what the Bill goes for.”

Davis: “I’m really not interested.”.

Dart: “That’s what the Bill is directed towards though.”

Davis: “I’m gonna have to to give ya a ‘present’ vote on this, and I’ll tell you why Representative Dart, I hesitate, and I refuse, really, to vote on any more legislation that takes the freedoms of people, like having a private conversation. You get yourself involved in a situation where policeman want to harm you, and you’re innocent, and they tape part of a conversation, or they change what’s been said, and you could be irreparably harmed. I don’t think we do our citizens in Illinois justice and we could throw up that red flag of narcotics, but it just doesn’t wash. This is not the kind of legislation that’s going to rid this state or this country of drugs and the transporting of drugs. This, in my opinion, is just another removal of a constitutional freedom that we all seek and want, and that’s to have free conversation with somebody without feeling you’re being taped.”

Speaker Steczo: “Is there any further discussion? The Chair recognizes the Gentleman from Champaign, Representative Johnson.”

Johnson, Tim: “I think we always get to the end of these Sessions, and then a Bill that might not otherwise have a chance of passing, because it’s so flz. ;ets to us in this form, and then we’re more inclined to support it.
Everybody ought to oppose this Bill. This Bill is an attempt to get one more element of the camels nose under the tent with respect to eavesdropping. What makes this
Page 28

country unique, makes Illinois unique, as a part of the United States is certain elements of civil liberties that we’ve come to accept, that really are unique in the world, and one of them is the ability to be free from efforts of government to intrude in one’s privacy. I can debate the merits of this Bill in detail all day, but the bottom line is that everybody in Illinois is subject to having their privacy interfered with and their concept of fundamental rights damaged by the passage of this Bill. This is one more attempt, most of which have been beaten off before by a bipartisan coalition of people who still think that the Bill of Rights means something. But, one more attempt to try to chip away in the fake name, phony name of law enforcement at our basic civil liberties. This is a bad, bad Bill. It’s a bad precedent. I didn’t sign the Conference Committee Report for precisely that reason, and the Bill oughta be defeated.”

Speaker Steczo: “The Chair recognizes the Gentleman from DuPage, Representative Roskam.”

Roskam: “Thank you, Mr. Speaker, Ladies and Gentlemen of the House. With all due respect to the previous Speaker, my good friend, I respectfully disagree; and I did sign that Conference Committee Report. In my opinion, this is an opportunity for us to empower the men and women who are on the front lines of the fight against crime in their efforts to go undercover and what not. This evidence cannot be used against a defendant unless a police officer ends up dead in the line of duty, …… it’s used for impeachment. So, in my view, this is an opportunity for us to give the men and women on the front lines the tools to defend themselves, and I would urge an ‘aye’ vote.”

Speaker Steczo: “Representative Dart, to close.”
Page 29

Dart; “Thank you, Mr. Speaker. Just to clarify the record on this. This is a very limited procedure we’re talking about here. The one concept is actually going to try to protect more people’s rights because of a court interpretation. Presently, under the way these courts have interpreted the law, a constituent can contact you on the telephone, put a tape recorder on you, and unless you actively state to your constituent, ‘I do not wish to have this recorded’, they can do it and avoid the eavesdropping law. This closes that loophole in that. The second provision is in response to officers who were shot. There was an officer shot in DuPage county, it’s a very dangerous thing. The world has changed a great deal, and this is unique, it is not unique. There are 42 other states that have similar provisions to this. There’s numerous safeguards in here. This is not evidence we’re talking either. we talking the only time this tape recording could ever be used is if the police officer is shot. If he’s shot at the door, or if there’s great bodily injury to him, and even in that instance, it’s very limited. The safeguards are numerous in there. We’re trying to bring Illinois in.. .up to snuff with the other states in the union right now, and it’s purely a question of protecting the police officers, who on a daily basis, we put in jeopardy of their own lives. This is a very important measure. We are not intruding further on citizen’s rights, and I would urge your support.”

Speaker Steczo: “The question is, ‘Shall the House adopt the First Conference Committee on House Bill 1787. All those in favor will signify by voting ‘aye; those opposed by voting ‘no’. The voting is open. Have all voted who wish? Have all voted who wish? Have all voted who wish?

Mr. Clerk, please take the record. On this question, there
Page 30

are 82 voting ‘yes’, 31 voting ‘no’, 2 voting ‘present’, and the House does adopt the First Conference report on House BIll 1787, and this Bill having received the required Constitutional Majority, is hereby declared passed.

STATE OF ILLINOIS 90TH GENERAL ASSEMBLY HOUSE OF REPRESENTATIVESTRANSCRIPTION DEBATE 107th Legislative Day April 1, 1998

Speaker Hartke: “Discussion on the Bill. This Bill is on Short Debate. The Chair recognizes the Gentleman from Kendall, Representative Cross.”

Cross: “I’m joined by all my colleagues with their hands up taking this off Short Debate. Thank you, Mr. Speaker.” Speaker Hartke: “I didn’t see the…

Cross: “… now see.”

Speaker Hartke: “Yes, I do.”

Cross: “Will the Sponsor yield?”

Speaker Hartke: “Indicates he will.”

Cross: “Representative, any opposition to this Bill?”

Fritchey: “No, Sir.”

Cross: “Even with both Amendments?”

Fritchey: “None that I’m aware of.”

Cross: “I’m a little.., not puzzled, but could you explain to us again? Go over the eavesdropping section. We couldn’t hear anything you said about it.”

Fritchey: “There’s actually a few items with respect to eavesdropping. With respect to an eavesdropping device, it now will define a eavesdropping device as something that can intercept or record conversations over pagers and fax machines, as well as telephonic electronic media. With respect to, who was exempted from law enforcement,it now exempts law enforcement officers from listening to conversations that do not qualify as private oral communications. And what specifically does not qualify as a private oral communication anymore are communications that take place on stolen cellular service. So, for example, if an individual has a conversation on a stolen cellular phone, or a cloned phone, he no longer has an expectation of privacy on a conversation that takes place
Page 154

on that stolen cellular phone.”

Cross: “John, it’s kind of tough to hear you. Is this an ongoing problem in Cook County?”

Fritchey: “What this is, it’s trying to do a few things. It’s trying to modernize and bring up to date some of the eavesdropping law.., eavesdropping laws and private communication laws by stating when there is an expectation of privacy and when there isn’t. The other provisions in there are to give a tool to law enforcement. What’s happened now, through technology, is offenders are kind of a step ahead of law enforcement right now. They can clone a cellular phone and still be able to evade detection on that, because up until now, we cannot use electronic surveillance on that cellular phone because they have an expectation of privacy. This Bill’s aimed at taking that expectation of privacy away. It additionally now includes pagers and fax machines as items that can be eavesdropped upon. So, now we can go for enforcement of that, and as I said, what’s happened is, you have individuals that are cloning pagers to find out which informants are calling police officers. So, the short answer to your question is, yes, it’s an ongoing problem, which is why the State’s Attorney came up with this package.”
Cross: “Now, are we reading this correctly that the violation here, under the eavesdropping section, is a Class I Felony?”

Fritchey: “Violation of the eavesdropping is a Class IV, subsequent offenses is a Class III. If the… If the violation involves eavesdropping on a police officer, a state’s attorney, an attorney general, a judge, or a Legislator while in the performance of their official duties, then it’s a Class I, and that again is to protect
Page 155

any of these individuals from interference with their official duties.”

Cross: “Why… I mean, I can understand the state’s attorneys maybe, and I can understand police. Why on earth should it be a Class I Felony if someone overhears what we’re saying as Members of the General Assembly? Why are we a protected class?”

Fritchey: “It’s not just what we’re saying, for example, during this debate. It’s private communications. It may be a furtherance of legislative duties, discussions that we may be having with other protected Members, police officers, judges, et cetera, and that they want to accord all these classes a higher level of protection.”

Cross: “I know we talk about a lot of National Security issues, maybe that’s why we make it a Class I. I don’t have any other questions. I know Representative Durkin has some.”

More developing…. check back often.

Tagged , , ,

Detective fired for trying to secede from U.S. The "price of freedumb"

Although I sympathize with Tom Laughlin based on his intentions, it is obvious he clearly did not think through his actions. For the record, my actions of expatriating and renouncing my US citizenship are not attributed to being a “Sovereign Citizen”. Sovereignty is becoming a dirty word in some respects because when misused by people, the government and media pounce on the opportunity to impugn the notion as that of insanity. The government has no qualms invoking its “Sovereignty” when asserting jurisdiction or other claims against nations. Sovereignty is not a political concept, but a philosophical one. There is no dispute that governments claim to possess sovereignty, but governments are fictions.

You cannot seek redress against a government for a personal injury. There is no individual responsible for the collective acts of a government. If you suffer a harm, it is because of what an individual did,  not a government. People take the actions. They may do it in the name of their office or working for the government, but what does that mean and how do you prove it? Nothing transforms an individual from an individual into a government officer; not the votes, not the oath, not the recognition. It is all a game and fantasy. It means only what people allow it to mean.

Government operates under (allegedly) the consent of the people forming that government. Those people must possess some individual power to first freely associate and then exercise collective power to form a government. This is called popular sovereignty. It is an inherent right to do something. Therefore, for the government to possess sovereignty it must first acquire it from the people creating that government. That which is created cannot be greater than the creator. With my Declaration, I declared my personal sovereignty and refusal to act or become a part of that which I do not consensually and voluntarily submit myself to. I am not a citizen because I do not identify with any government worthy of my allegiance or membership with. Once I profess citizenship I reject my sovereignty. With citizenship, I am no longer the supreme authority for I have surrendered some of that sovereignty in favor of the protections and benefits of government. There is a price to pay for that relationship.

People have a right to associate and join whatever group or organization they wish. Likewise, they have a right to not join or to even leave that which no longer suits their purposes or which proves contradictory to their beliefs. That is my position. I swear no allegiance, not just to the United States Government, but to ANY government. I respect the rights of others who wish to belong to such things, but their actions and laws affect only them. I aver to a higher law which embraces all people, not just certain citizens. Once we realize we are all equally endowed with individual rights the needs for borders and nations begin to dissolve. I have no problem with people wishing to belong, but they also must accept my right to not belong. To force someone to participate in something contrary to their beliefs is slavery.

The story below illustrates the misguided beliefs of the “Sovereign Citizen Movement” and how they contradict themselves by resorting to legal machinations in attempting to free themselves from government; when in reality their freedom is illusory because they still want the benefits of being a citizen-conscript. They resort to UCC arguments, strawman idiocy, and other contradictions. I will highlight the absurdities in the article and comment in italics, but it is important to understand the distinction between sovereignty and citizenship. This man got it wrong, big time.

http://www.heraldtribune.com/article/20110219/ARTICLE/102191022/2416/NEWS&tc=email_newsletter?p=all&tc=pgall

By Anthony Cormier

SARASOTA – Last April, a veteran Sarasota homicide detective went to the courthouse and tried to secede from the United States of America.
Key Documents:
Internal Affairs Report for Detective Thomas Laughlin

Sovereign Citizen Documents

The detective, Tom Laughlin, filed a convoluted document declaring himself a “sovereign citizen.” The filing included a thumbprint on each page and a photocopy of 21 silver pieces — the price to become a “freeman.” I have no idea as to the significance of a photocopy of 21 silver pieces, but what is amazing is the price to become a freeman. If man is free, then why the price? Is this some repurchase of one’s self from their master? This is very odd, indeed.

In doing so, Laughlin, 42, joined a small but growing group of U.S. citizens who claim they are not subject to federal law, that they no longer have to pay taxes and that their homes are their embassies. For the information of all you U.S. citizens, you are subject to federal law and have to pay taxes. That is because you are a U.S. citizen. You have to pay for the benefits derived from that membership. This is like a fish saying they are not subject to being wet. As far as homes being embassies, I have no idea where that came from and if for real, illustrates the craziness of that movement.

Last week, he was fired for it.

In what department insiders are calling one of the strangest internal affairs cases in recent memory, Laughlin has gone from a decorated and respected investigator to the subject of office jokes.

Laughlin has handled some of the area’s highest-profile cases in recent years. His work led to the conviction of Deandre Tunstall for gang-related murders. He solved the cold-case killing of John Allaman Jr. on Bird Key, and he teamed with U.S. marshals to track down Willie James Kimble, a Sarasota man accused of beating a woman to death in New York nearly 40 years ago.

In his personal life, though, Laughlin was growing increasingly frustrated with the direction of the city and the country. He privately worried that “Obamacare” was bad for his family, that Sarasota leaders planned to lay off police officers, and that the city might take his pension. How can a sovereign citizen, someone who is free from the government, collect a pension; a benefit from having served that government? When you claim your freedom you surrender all of the things connected with your servitude. If you are free, you can’t come back to the plantation for a hot meal; you work for and provide for your own sustenance. That includes any benefits from employment.

His brother, also a “sovereign citizen” who recently was charged in St. Johns County with trying to extort two Florida Highway Patrol troopers and later with bilking a Sarasota bank of $50,000, convinced Laughlin that he could declare himself a “freeman.”

So Laughlin headed to the courthouse in April to legally renounce his citizenship, telling local, state and federal officials that he would only communicate with them in writing.

“What the paperwork was done for, was basically to get back to the roots,” Laughlin told internal affairs investigators. “The Constitution. You know. And under God and back to the meat of what it really is.” Mr. Laughlin, as if God and the Constitution constitute what is “real”. What is real is each individual having to get through this life the best they can. God does not write Constitutions, create nations, start wars, wave flags, tax, imprison men…. all the things that man does in the name of his government. The Constitution is not what it “really is”. It is not the source for your liberty or rights. If the Constitution is your only reference for what defines a free man then you have a lot to learn. The Constitution was not written for you, or anybody, other than who wrote it and the men who would then use it to control the masses.

About the same time, investigative reports show, Laughlin’s colleagues saw his behavior change around the office. He talked increasingly of a “straw man account” that allowed government to hide millions of dollars from citizens. If the government wants to hide millions of dollars why would it need to stuff it inside of a straw man? Do you think this crooked government would bother creating accounts in secret and then tricking people to act for the straw man? There are definitely administrative files that bear the names of individuals, such as court cases, tax files, social security… but those do not affect you. They are not “your” account full of riches. They are but a way government tracks and organizes its dealings with us and how it creates justification for what it does. They are not magical or mysterious. They are of no consequence to a free man who has nothing to do with government. Let them create whatever they want. Who cares? It is not yours.

Colleagues told internal affairs that Laughlin wanted to pay off personal debts through the straw man account and that he made strange statements about a global financial conspiracy.

According to internal affairs documents, Laughlin believed freeman-based ideas that the red numbers on a Social Security card were clues to finding the account, and that birth certificates were related to secret ships berthed in a port that held access to millions of straw man dollars. I can’t even comment on this lunacy. Accepting this is a sure sign of insanity.

“It was one of those things where, as he’s trying to explain it to me, I’m looking at him thinking, ‘You’re crazy,'” Detective Charles Riffe said in a statement to investigators. “I mean, what the hell? It didn’t make any sense to me.”

Colleagues soon discovered Laughlin had declared himself a freeman — many officers viewed the public records on the court’s website — and concerns grew that his status could jeopardize criminal cases he worked because he felt he was no longer a citizen, reports state.

Laughlin’s beliefs put him directly at odds with his superiors, who had begun to watch out for sovereign citizens.

The FBI listed those calling themselves sovereign as a domestic terror threat following a series of violent attacks by members, including Terry Nichols of the Oklahoma City bombing, Joe Stack, who flew his plane into an IRS building in Austin, Texas, and Jerry and Joseph Kane, the father and son who fatally shot two Arkansas police officers last May. Well, the FBI is partially correct. Government calls itself sovereign and it is a domestic terror threat, so kudos for hitting that nail on the head. However, I declared my sovereignty, but pose no threat to anybody but government by my refusal to accept or support it. All of my “threats” relate to self-defense. It is simple, allow those who reject this present system of corruption and violence to remove themselves from it and there will be no problems. I will live by my own efforts and industry and suffer my own consequences. I do not believe in the indiscriminate use of violence by Sovereign Citizens, government, or anyone else. I would not strike out against anyone unless they came to me directly with an overt threat to my life of liberty. I don’t need a truck bomb for that. I have my own two hands to defend myself. I understand the violent reaction to government, but people are lashing out at themselves because they need only stop supporting it for it to become ineffective. Of course, there are real consequences to that as well, but I refuse to adopt the methodology of a violent institution, government, in order to fight it.

The Southern Poverty Law Center estimates there are about 300,000 sovereign citizens in the U.S., and the radical movement has a huge presence online — from websites that provide the documents to file for sovereign status in court, to YouTube videos in which members openly threaten law enforcement officers.

The movement came to the Sarasota Police Department’s attention last year, when an intelligence officer sent a bulletin warning officers to be wary of their interactions with “sovereign citizens.”

In an interview this week, Laughlin said he began to have second thoughts about the movement in June, during a vacation with his brother.

The two were pulled over on a North Florida interstate and Laughlin’s brother, James, berated a trooper, saying state laws did not apply to him.

James Laughlin later mailed documents to the trooper saying he should drop the citation and pay him $150,000 for violating his rights or he would sue for $32 million. This is one example of what the Sovereign Citizens are all about. They want to profit from their interraction with the State. What “rights” were violated that warrant a bill, and how do you sue in courts that you claim to be free from?

“That’s when I knew this was something that I didn’t want to be a part of,” Tom Laughlin told the newspaper. “I filed those documents without really reading them. All I wanted to do was make a political statement about the way things are going in this country. I didn’t want to be involved in any kind of extremist movement.” If you don’t want to be involved with an extremist movement, then get out of police work and away from government without all the crazy paperwork.

Department officials began an internal affairs case in July. Prosecutors determined that Laughlin had not broken any laws, but city attorneys openly fretted he may have violated his oath of office.

By then, Laughlin says, he had already taken steps to make the court records invalid. While the paperwork has no legal value, Laughlin found that they cannot be redacted and cannot be removed from a public website.

After a lengthy internal inquiry, supervisors accused Laughlin of associating with a hate group that advocates violence, not answering questions honestly, and using department computers to search websites on straw man accounts and sovereign citizens. So, they accused him of acting like a cop while claiming to be a Sovereign Citizen? If you want to be violent you can’t be both a violent cop and a violent Sovereign Citizen. Pick which violence best suits your needs and be the worst you can be.

A review board recommended he be suspended for four weeks and transferred out of the criminal investigative division. The suspension would have cost him about $10,000.

But he was fired instead by Chief Mikel Hollaway, who was on vacation this week and could not be reached for comment. City Manager Bob Bartolotta said Hollaway conferred with him before the decision.

“The honesty issue was very, very important to the chief,” Bartolotta said. “He has to rely on his officers to be honest at all times, and I think that was the biggest factor in his decision.”

Laughlin has hired a private attorney and plans to appeal the firing. Laughlin now says he made clear that the freeman paperwork was a mistake and that he realizes there should be consequences. Maybe he will convince them to fire his straw man instead.

“I screwed up and I deserve to take my lumps,” he said. “I know what I did was stupid. But I don’t think I deserve to lose my job over it. I have been a police officer since I was 19 years old. This is all I know.” And that, Mr. Laughlin, is very sad.

An ode to the audacious Jim Davidson and his US Marshall Detractors

A tip of the hat to the Libertarian Enterprise, and Jim Davidson for raising the ire of the US Marshalls Service by way of his post identifying despotic and thuggish black robbed malfeasants.

I am reposting with permission and credit where credit is due….oh yeah, and thank you Google!

Hiya fellas!

See also:

http://www.ncc-1776.org/USMarshals.html

THE LIBERTARIAN ENTERPRISE
585, August 29, 2010
“I have a fundamental human right not to be
stolen from. Or enslaved. And so do you.”

They’re Here…
…and Here, and Here
by Jim Davidson
jim@vertoro.com

Special to The Libertarian Enterprise

A three-judge panel, consisting of Diarmuid Fionntain O’Scannlain, N. Randy Smith, Circuit Judges, and Charles R. Wolle, Senior District Judge, voted in the case of U.S. v. Pineda-Moreno, No. 08-30385 that the DEA and other pigs are not expected to get a warrant to trespass on the private property of a driveway to attach a GPS device to someone’s vehicle and then follow that person’s movements.

You can read all their foolish ideas here (a .pdf file).

So, let’s find them, shall we? These nice men want you to know all about where they live, so you can attach a GPS device to their vehicles and follow them around. Or, come visit them with torches and pitchforks, or candle light vigils, or the like, one presumes.

First we go here: wikipedia.org/wiki/Diarmuid_O%27Scannlain

And we find out that Diarmuid has chambers in Portland, Oregon.

So, that’s a rare name, we visit Whitepages.com and find out sure enough there is a listing.

Diarmuid O Oscannlain
3919 SW Mount Adams Dr
Portland, OR 97239-1559
Household: Maura O Oscannlain, Caroline Mcdonough

So we stop by Google maps and find his home.

Satellite/aerial view shows that is a very nice house. Across the street, a car is parked on the street. Street view shows some lovely flowers out front, a nice two-story frame home. Gosh, a wood house. Someone who doesn’t believe in your reasonable expectation of privacy lives in a wood house.

It isn’t completely clear that there would be a driveway, or garage, for each of these houses. There is one just up the street, but I think that’s for another house on the hill. Anyway, it would be irony indeed if this despicable judge were parking on the street.

Norman Randy Smith is 60. N._Randy_Smith

It says there that he maintains a residence in Pocatello, Idaho.

And here that residence is:

Norman R Smith
420 Pebble Ln
Pocatello, ID 83204-3860
(208) 233-0733
Age: 60-64

Household: Ladean E Smith, Randy Smith,

[Map]

Pebble Lane has some very nice homes on it, all with garages. And is that a golf course behind the houses? Wow. Very swanky real estate. It must be nice to be a federal judge and get to stifle individual liberty.

It bears mentioning that “Smith” is a fairly common name, and this is not the only Randy Smith in Pocatello. So phone him up before you stop by.

Wolle was a bit harder to find. Visiting wikipedia you might think he was in Iowa. But it turns out that the part to notice is the National Judicial College, which is in Reno, Nevada. He seems to be this fellow, living nearby in Gardnerville.

Charles R Wolle
1030 Lakeside Dr
Gardnerville, NV 89460-9728
Age: 65+
Household: Thomas D Wolle, Susan M Wolle, Kerstin W Wolle

[Map]

Available aerial photo shows it to be a new development, near a golf course. I guess the water rights are in, but the irrigation isn’t complete. Say, you try growing a golf course in a desert. Heh. But, money galore, judging by the size of the house and the circular drive. Gee, I wonder if the son of a bitch parks in his driveway.

Anyway, there they are, the current crop of parasites in the government to assault your individual liberty. Their opinion was “rendered” back in January, but a larger panel of the 9th Circuit decided to affirm what they chose. I haven’t bothered to look for all those people. Do I have to do everything for you?

Best wishes for more freedom when these parasites get jobs in the private sector. Or, anyway, stop infesting your life.

If a bunch of cross-dressers want to attack individual liberty, to hell with them. Because to hell with them. That’s exactly as much eloquence as I can muster. I am not burning down their homes, I am not murdering them in their beds. And I am not advocating that any person ever do anything of the sort. But if it were to happen, who would mind? If they were individually and severally dying in a fire, I would not urinate on a single one of them to save their lives.

Like this? Why not pay the author!
Select amount then click “Donate Now”

Pay to Jim Davidson
jim@vertoro.com

Jim Davidson is an author, entrepreneur, and anti-war activist. His 1990 venture to offer a sweepstakes trip into space was destroyed by government action as was his free port and prospective space port in Somalia in 2001. His 2002-2007 venture in free market money and private stock exchange was destroyed by government action in 2007. He’s going to Mars if he has to walk. His second book, Being Sovereign is now availble from Lulu and Amazon. His third book Sovereign Self-Defense will be released for Kindle soon. His fourth book Being Libertarian will be available for free download as a .pdf, being a compilation of all his essays and letters in “The Libertarian Enterprise” since 1995. Contact him at indomitus.net or indsovu.com He and his associates at Individual Sovereign University are planning a series of concerts and celebrations of freedom around the world. One of these events is 4-6 March 2011 in Kansas City, Missouri.

Help Support TLE by patronizing our advertisers and affiliates.
We cheerfully accept donations!

75-Year Prison Sentence for Taping the Police? The Absurd Laws That Criminalize Audio and Video Recording in America

Reprinting this article courtesy the original here

http://www.alternet.org/rights/149706/75-year_prison_sentence_for_taping_the_police_the_absurd_laws_that_criminalize_audio_and_video_recording_in_america

COMMENTARY BY MARK MCCOY:

What is being done to Michael Allison is nothing more than psychological terrorism directed towards anyone who would exhibit audacity in taping police. Government, and police in particular, cannot withstand documentation of their violent, public acts. They act illegally, immorally, and violently against people, using the so-called “law” as their justification. In reality, there is no such law. As with Mr. Allison, the words of the legislature, another arm of the criminal body of the State, are twisted and aimed at him to send an overt message to the rest of us; “You people are not in control.”

I have been taping government officials for some time. I used to work as a private investigator and am very adept at “wiring” myself. I have recorded conversations with the Chief of Police of Fairview Heights, the Mayor of Collinsville, St. Clair County Circuit Clerk (now State’s Attorney) Brendan Kelly, Judge Vincent Lopinot, and Judge LeChien. The Fairview Heights Police, Joshua Alemond and Aaron Nyman, who beat and Tasered me on February 17, 2009 were recorded via my mobile phone and bluetooth headset, before the Tasering and beating destroyed the equipment. My truck was also wired for video and audio, but I did not have the video running at that time. The police did, however, find a micro-cassette recorder in my console and removed the cassette from it, unlawfully. What they failed to find is the microphone hidden in the door frame that went to another digital recorder. Even after illegally searching my truck and breaking a lock to get to a hidden compartment, the digital recording survived their search.

I will be posting copies of the audio on another page from my encounters with these criminals. Luckily, when the police beat me and destroyed the phone they must have assumed it was totally inoperable, but failed to check the removable memory card for the recorded audio. I have since removed all of my “illegal” recordings off site to a number of servers for safe-keeping and no longer keep the originals in my possession. I am also working on establishing an anonymous FTP server where people who do record can upload their audio/video without a traceable trail to their identity.

I am confident Mr. Allison will not be found not guilty, and the State will most likely try to strike a deal. I say to Mr. Allison, you hold all the cards and trust the jury. As far as the juvenile  megalomaniacs writing these deceitful and oppressive laws… to hell with you.

As far as Judge Kimbra Harrell, you may wish to contact her personally and let her know how you feel about her distorted view of authority.

Office:

KIMBARA G HARRELL
117 KITCHELL
OLNEY, IL 62450
(618) 392-7070

Residence:


KIMBARA G HARRELL
Born 1957
3495 VAN RD
OLNEY, IL 62450
(618) 395-4040

The growing accessibility of recording devices is prompting officials to dig up dusty old eavesdropping laws that are being used to intimidate the nation’s citizens.
January 28, 2011 |

Last January, Michael Allison, a 41-year-old mechanic from Bridgeport, Illinois, went to court to protest what he saw as unfair treatment from local police officers. Allison is an auto enthusiast who likes to tinker with cars, several of which he keeps on his mother’s property in the neighboring town of Robinson. Because both towns have “eyesore,” or abandoned property, rules that require inoperable cars to be either registered or kept in a garage (which neither house had, and which Allison could not afford to build), Allison’s cars were repeatedly impounded by local officials.

Allison sued the city of Bridgeport in 2007, arguing that the eyesore law violated his civil rights and that the city was merely trying to bilk revenues from impound fees. This apparently enraged the local police, who, Allison alleges, began harassing him at home and threatening arrest when Allison refused to get rid of his cars.

Shortly before his January 2010 court date, Allison requested a court reporter for the hearing, making it clear to the county clerk that if one was not present he would record the proceedings himself.

With the request for a court reporter denied, Allison made good on his promise to bring his own audio recorder with him to the courthouse. Here’s what happened next, as reported by Radley Balko in the latest issue of Reason magazine:

Just after he walked through the courthouse door the next day, Allison says Crawford County Circuit Court Judge Kimbara Harrell asked him whether he had a tape recorder in his pocket. He said yes. Harrell then asked him if it was turned on. Allison said it was. Harrell then informed the defendant that he was in violation of the Illinois wiretapping law, which makes it a Class 1 felony to record someone without his consent. “You violated my right to privacy,” the judge said.

Allison responded that he had no idea it was illegal to record public officials during the course of their work, that there was no sign or notice barring tape recorders in the courtroom, and that he brought one only because his request for a court reporter had been denied. No matter: After Harrell found him guilty of violating the car ordinance, Allison, who had no prior criminal record, was hit with five counts of wiretapping, each punishable by four to 15 years in prison. Harrell threw him in jail, setting bail at $35,000.

That’s up to 75 years in prison for breaking a law Allison did not know existed, and which he violated in the name of protecting himself from what he saw as an injustice.

As Balko points out, Allison’s case may be extreme, but he is hardly alone in facing outsized punishment for efforts to combat police wrongdoing. Take Christopher Drew and Tiawanda Moore, two Chicagoans highlighted in the New York Times last week. Drew, a 60-year-old artist, faces up to 15 years in prison for using a digital video recorder during his December 2009 arrest for selling art without a permit. Drew had planned on getting arrested in protest of the permit law, which he saw as a violation of artists’ rights. He was unaware that filming the ordeal was illegal.

Likewise, Moore, a 20-year-old Southside resident, did not know it was illegal to record a conversation she had with two police officers last August, and she too faces a prison sentence of up to 15 years for doing so. Moore’s case is especially troubling because she was in the process of filing a complaint with the two officers about a third officer, who Moore alleges sexually harassed her in her home. She told the Times that she “was only trying to make sure no other women suffered at the hands of the officer” by making the recording. Presumably, she was also trying to protect herself in case she faced another lewd advance. Instead, the officers tried to talk her out of filing her complaint and then slapped her with eavesdropping charges when they found out her Blackberry was recording.

These stories all highlight Illinois’ draconian eavesdropping laws, which, ever since a privacy provision was overturned in 1994, have made it illegal to record audio of an individual without his or her consent. Carrying a sentence of between four and 15 years, the laws in the state are some of the harshest in the nation.

Illinois isn’t the only state waging a war on citizens with recording devices. Across the country, the growing accessibility of recording devices (like smart phones) and media-sharing sites (like YouTube) is prompting officials to dredge up dusty old eavesdropping and wiretapping laws, leading to “a legal mess of outdated, loosely interpreted statutes and piecemeal court opinions that leave both cops and citizens unsure of when recording becomes a crime,” according to Balko.

The good news is that few people have actually been convicted under these laws for documenting police wrongdoing; neither Michael Allison nor Christopher Drew nor Tiawanda Moore are likely to go to prison for the recordings they made. The bad news, though, is that these laws are being used to intimidate the nation’s citizens, making them afraid to stand up against police officers and other officials who are acting illegally and/or immorally. As long as no one is convicted, the law goes unchallenged, notes Adam Schwartz, senior staff counsel for the ACLU of Illinois.

The intimidation techniques extend to still photographers as well, as documented by Carlos Miller on the blog Photography is Not a Crime, which catalogs rights violations against people with cameras and teaches citizens about their legal rights to photograph people and places. (Things that can almost always be photographed from a public place, “despite popular opinion,” according to Miller’s Web site: criminal activities, law enforcement officers, industrial facilities.) Miller himself has been illegally arrested and had his photos deleted for taking pictures of police officers.

Although he’s always beaten his cases in court, Miller recognizes that coming out on top after the fact isn’t good enough. “There’s this idea that just because charges are dropped, there’s no harm,” Miller told Reason. “But that isn’t right. There’s definitely harm when someone is illegally arrested and has to spend a night or more in jail. Your life is disrupted. You now have legal bills to deal with. There’s also harm when a cop wrongly tells someone they can’t photograph or record. He’s intimidating them into giving up their rights.”

Some of the most widely viewed posts on Miller’s blog — “St. Louis Cop Beats Man Down in Youtube Video,” “Surveillance video once again shines light on Philadelphia PD corruption” — are testament to why citizens need the explicit legal right to document officers’ wrongdoings. Without the recordings of these events (and many, many others like them), justice probably never would have been realized, and the truth never brought to light. Unless we overturn the nation’s most over-the-top eavesdropping laws, our legal system will continue to obstruct, rather than promote, justice.

Revolt like an E-Gyp-Tian… The United States is next

Watching the events in Egypt over the past few weeks affirms my hopes that the spirit of revolution and disobedience still burn within the hearts of some people, but more importantly if illustrates just how apathetic, lazy, and sanctimonious, people in this country are. The Egyptian people say they have reached critical mass in tiring of living under a state of emergency for some 30 years, when in reality the American people have been living under various states of emergency since the Civil War. The Civil War resulted in a form of military occupation or martial law under the Lieber Code. More recent and perpetual proclamations by presidents, giving rise to an ongoing state of emergency, are explained below, courtesy of WikiPedia.

United States
Further information: Insurrection Act and National Emergencies Act

In the United States, there are several methods for government response to emergency situations. A state governor or local mayor may declare a state of emergency within his or her jurisdiction. This is common at the state level in response to natural disasters.

The president of the United States, as head of the executive branch, has the authority to declare a federal state of emergency. The only emergency provisions in the U.S. Constitution are:[23] “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”[24] and an exemption from the privilege of a grand jury hearing for cases arising in the military when in service in a time of “public danger”.

Habeas corpus was suspended on April 27, 1861 during the American Civil War by Abraham Lincoln in parts of Maryland and some midwestern states, including southern Indiana. He did so in response to demands by generals to set up military courts to rein in “copperheads”, those in the Union who supported the Confederate cause. Lambdin P. Milligan and four others were accused of planning to steal Union weapons and invade Union prisoner-of-war camps, and were sentenced to hang by a military court in 1864. However, their execution was not set until May 1865, so they were able to argue the case after the Civil War. It was decided in the Supreme Court case Ex Parte Milligan 71 US 2 1866 that the suspension was unconstitutional because civilian courts were still operating, and the Constitution only provided for suspension of habeas corpus if these courts are actually forced closed.

On December 16, 1950, during the Korean War, President Truman issued Presidential Proclamation No. 2914,[25] declaring a state of national emergency.[26] The Supreme Court ruling in Youngstown Sheet & Tube Co. v. Sawyer established, in 1952, that presidents may not act contrary to Acts of Congress during an emergency.

During the Watergate scandal which erupted in the 1970s after President Richard Nixon authorized a variety of illegal acts, Congress investigated the extent of the President’s powers and belatedly realized that the U.S. had been in a continuous state of emergency since 1950. As a result, in 1976 the National Emergencies Act set a limit of two years on emergency declarations unless the president explicitly extends them, and requiring the president to specify in advance which legal provisions will be invoked. The Act terminated the emergency of 1950 on September 14, 1978;[27] however, even in the 21st century, the federal courts have upheld harsh penalties (including deportation) for crimes that occurred during the state of national emergency from 1950 to 1978, where the penalties were escalated because of the existence of that emergency.[25]

The 1977 International Emergency Economic Powers Act allows freezing of assets, limiting of trade, and confiscation of property during a declared emergency.

A federal emergency declaration allows the United States Federal Emergency Management Agency (FEMA) to exercise its power to deal with emergency situations; federal assistance also becomes available to areas that are declared to be in a state of emergency. For FEMA, emergency declarations are different from the more common disaster declarations done for hurricanes and floods. Typically, a state of emergency empowers the executive to name coordinating officials to deal with the emergency and to override normal administrative processes regarding the passage of administrative rules.

The United States is formally in an ongoing limited state of emergency declared by several Presidents for several reasons. A state of emergency began on January 24, 1995 with the signing of Executive Order 12947 by President Bill Clinton. In accordance with the National Emergencies Act, the executive order’s actual effect was not a declaration of a general emergency, but a limited embargo on trade with “Terrorists Who Threaten To Disrupt the Middle East Peace Process”.[28] This “national emergency” was expanded in 1998 to include additional targets such as Osama bin Laden,[29] and has been continued to at least 2008 by order of President George W. Bush.[30] There are a number of other ongoing national emergencies of this type,[31][32] regarding for instance diamond trade with Sierra Leone. Especially noteworthy are the ongoing states of emergency declared on November 14, 1979 regarding the Iran Hostage Crisis,[33] that declared on March 15, 1995 with respect to Iran,[34] and that declared on September 14, 2001 through Bush’s Proclamation 7463, regarding the terrorist attacks of September 11, 2001.[35]

President Barack Obama extended George Bush’s Declaration of Emergency regarding terrorism on September 10, 2009[36] and again on September 10, 2010.[37]

Of course, the US Government is somewhat discreet when exercising power under this auspicious and nefarious provision, but evidence abounds where people are assailed with little or no due process or Constitutional protection. The difference in the United States is, the people have become so infatuated and dazzled with material trappings and illusory wealth that they care little about the actual operation of government upon their liberty. They would just as soon violate every provision of due process to keep undesirables out of their neighborhood to save their inflated property values as they would step in line to procure licenses and permits for every private action commandeered by government. The US Government is no more legitimate than it is representative.

Look at how the Egyptian people stood their ground in the face of military commands to desist. Look then at how American protesters are corralled into chain-link “free speech zones” like cattle, far away from the eyes and ears of their rulers. Look at how people in America are assailed by local police when they dare assert their rights. They are either shot, Tasered, or beaten for their audacity. Where are the cameras and platitudes citing a right to rebel when the flunky cops do the bidding of the government. It does not take a tank to kill a man. It takes a violent, irrational, and obedient despot with a badge and “authority” to subdue us one-by-one. The Egyptian people exhibit much more temerity and resolve than Americans could ever hope to muster, and this country is supposedly the “Land of the Free and Home of the Brave”. What a joke.

Fortunately, there are many in America who are waking up and forming their own ideas about how government has failed. As more become comfortable with this new-found knowledge and spread the word, they will begin to coalesce into a force that will not be met with the feigned open arms the politicians in this country extend to the Egyptian people. I believe politicians in this country are paying quivering lip service to the revolt in Egypt, fearing the spread of that spirit over our borders. Problem is, ideas are borderless.

How would such a scenario play out in America? Violently, I’m sorry to say. When the game is over, it is over. Those who are really in power have no qualms about pulling out all the stops in teaching belligerents  who is boss. Bankers, war mongers, politicians, corporations.. have no problem scuttling the ship before it sinks, even if it means locking the crew below deck while they grab the lifeboats for themselves. Compound that with the violent nature of Americans. Our culture is base, crass, greedy and guttural. Politicians will expend few resources quelling the rabble because they will largely annihilate each other in a mad grab for the booty. The fat and rich will sit by and watch their crops compost before their eyes.

The best to hope for is for a revolution of mind before a revolution in-fact. A way of thinking must first be nurtured; a way which recognizes individual liberty as tantamount and superior to any government. Equally important is the operation of any ensuing government upon those who find no need or value in that government. Again, the crux is consent. There are those of us who have realized that putting men in control of other men is not the answer to the troubles of the world. We will have to wait and see how the Egyptian people seize the opportunity to craft a truly limited and responsive government, if that is in-fact what they need. I think the evolutionary process is to move towards the abolishment of all borders as cultures assimilate; something I fear will not be realized in my lifetime. However, I consider myself fortunate enough to have experienced the personal liberty I have discovered and the abandonment of government in  my life; as well as my commitment  to peace and humanity.

Maloney wants home schoolers to register with the State

When the State imposes itself upon the private pursuits of people, particularly those involving the concerns of their children, it subjects itself to the just and righteous remedies the people may elect to employ to preserve their liberties.

Senator Maloney obviously exhibits a serious mental defect and should be considered dangerous. If his megalomaniacal bill should pass then I urge you take appropriate measures.

Maloney, like so many others who receive votes by unwitting or ignorant people pining to be told how to live, suffers from a delusion whereby he suddenly has the right and power to put pen to paper and compel people to do his bidding. What is tacitly implied behind this legislation, as with all legislation, is the threat of force or removal of the children from the parents if the State does not feel they have sufficiently prostrated themselves before the its power. Make no mistake, the State will send armed DCFS officers to your home to confiscate your children so they may be properly indoctrinated, should you fail to do so. This is not possible without you first registering your children, something parents are all too eager to do.

Maloney, in his bill, cites some constitutional authority based on the State’s power to regulate and provide “education”. However, the Illinois Constitution does not apply to the people, it applies to the State. The State cannot take that document and turn it into a weapon to puff its chest and assail private individuals. You did not write the Constitution, you did not sign the Constitution, and you are not bound by the Constitution. Whoever ratified that document back in 1970 had no authority to preemptively legislate for your private affairs. This shows the systemic ignorance and arrogance of politicians where they invoke the Constitution, as if they were rubbing a magic lamp, thereby producing a genie to provide them supernatural powers.

However, so many parents are already mired in the administrative muck that is the State’s regulations that they are engaging a battle while hobbled. They have their marriage license, their children’s social security numbers, tax credits, vaccinations…. they are the epitome of a State conscript. If the State wanted to, it could just move against you, but the move would be audacious and publicly questioned. Therefore, the ruse of “please register “our” children, or else” is legislated to coerce you. If you really believe your children are “your” children, think again. I know dozens of stories where the State has absconded with the offspring of people for not meeting the standards of the State, thereby invoking its parens patrias, and exercising discretion over your progeny. You exist for no other reason than to produce tax-bearing fruit for the State. Period. If you should fail to properly arm the little wretches with the requisite misinformation and suppressed critical thinking the State will do it for you.

Maloney and his ilk can squawk about the Constitution all they like. It is nothing but a piece of paper. I’ve seen it in the archives in Springfield. It is not sacred nor divine. It is the ramblings of some who seek a device with which to justify control over other people. I urge you to refuse to comply with this Bill, should it become law. Stand your ground and make the State act upon it. Prepare yourselves. If you lack the principles or temerity, you may as well cloak your babies in the State flag and deliver them to the capital, then hang your head in shame. Do not teach them of freedom or liberty while you are wearing chains. There is no worse lesson than that taught through sanctimony.

You can contact Mr. Maloney privately at his home in Chicago or feel free to email him.

10040 TALMAN AVE
CHICAGO, IL 60655
(773) 233-0045
maloney@senatedem.state.il.us