Supreme Court Lets Important Right-To-Record-Police Ruling Stand

Yes, yes, I know that it doesn't necessarily mean anything when the Supreme Court denies cert on a case. They might perceive procedural flaws that would prevent a substantive ruling. There might be no conflict among the federal circuits, making the case less urgent. They might think the issue isn't important enough to make the cut this year. You can't infer that they believe that the lower court got it right just because they declined it.

Even so, it's great news that SCOTUS has declined to review the Seventh Circuit's decision in ACLU v. Alvarez, in which the court found that the First Amendment prevented Illinois from enforcing an eavesdropping statute against people who openly record police officers in the course of their duties:

The Illinois eavesdropping statute restricts a medium of expression commonly used for the preservation and communication of information and ideas, thus triggering First Amendment scrutiny. Illinois has criminalized the nonconsensual recording of most any oral communication, including recordings of public officials doing the public’s business in public and regardless of whether the recording is open or surreptitious. Defending the broad sweep of this statute, the State’s Attorney relies on the government’s interest in protecting conversational
privacy, but that interest is not implicated when police officers are performing their duties in public places and engaging in public communications audible to persons who witness the events. Even under the more lenient intermediate standard of scrutiny applicable to content neutral burdens on speech, this application of the statute very likely flunks.

Hopefully this — aided by an administration that seems to have it right on this issue — is the beginning of a solid wall of authority establishing the right of citizens to record public servants — including police — in the course of their duties. Doing so is essential to monitoring the things police do in our name, and often to defending people in the face of law enforcement perjury. But don't expect cops to go down without a fight. They are invested in the idea that they have a right to be free of being recorded in the course of their duties, and will attempt to enforce that sense of entitlement through various contempt-of-cop charges like "resisting arrest," "obstructing a police officer," "disturbing the peace," "failure to disperse," and other amorphous measures that can mean whatever police say they mean.

Last 5 posts by Ken White


  1. Kelly says

    This is good, especially considering the video that seems to be all over the internet of the cop getting cocky and holding down a 17 year old kid who wanted simply to call his mom. At least he is up for disciplinary review.

  2. Jeremy says

    I have a somewhat random legal question on one of those linked stories that I just now read. Would Emily Good have been within her rights to resist an unlawful arrest such as that?

    Obviously, the cops would have escalated the matter, and some physical harm may have come to Emily. However, since the arrest was unlawful, isn't it her right to resist?

  3. Zack says

    @jeremy: From what I understand, no. Resisting arrest- even an unlawful arrest- is criminal, as long as the police officer is acting in good faith. What you do is, you verbally inform them what they're doing is incorrect, you comply with their orders, and you fight them in court on it later. It's one of those things where the 'heat of the moment' will make courts a lot more sympathetic (to be fair, in many cases though certainly not all, rightfully so) to the police than the person; after the fact they'll be a lot more willing to examine the actions of the police through a far more critical lens.

  4. Jeremy says


    I understand what you're saying. However, doesn't that mean we have a society where a cop can actually walk onto your property without invitation, arrest you unlawfully, and you can legally do nothing about it until a judge reviews it? Doesn't that essentially make the 4th amendment meaningless? In some places it can take days to get before a judge.

    In my mind, since the police are supposed to be enforcement, the action they take should be legally supportable before they do it, or else they should be suffering major consequences, even risk to their own lives.

  5. says

    This statute was the subject of an episode of The Good Wife back in September; I don't know if you watch the show (of all the attorneys I've ever worked with, about a third seem to avoid watching legal dramas based on possible misinformation while the other 2/3 appreciated them for the same reason most other folks do, simple escapism) but I'd be interested to know if you feel the writers handled the case correctly/appropriately. A clip of it can be found on YouTube. Unfortunately, the full episode seems to be old enough now it has been dropped from

  6. C. S. P. Schofield says

    The problem with not resisting an illegal arrest is that you have to trust the cops in question to not go nuts on you once you are handcuffed. If I was, for one disgusting example, a homeless person, I wouldn't.

    Question for the Lawyers in the room; how long has the idea of 'don't resist illegal arrest' been the standard? Does it go back to early British Common LAw, or is it an outgrowth of something more recent?

  7. Jenn Cahill says

    This of course leads me to ask a question about other public servants. For instance teachers, who in the course of their work are loathe to let students make audio or video recordings of them. Should this be allowed? What about a parent who wants to record a student/teacher conference? Or students who want a meeting with an administrator recorded?

  8. says

    @C. S. P. Schofield
    Suggesting that one should resist arrest for reasons of personal safety is not good advice. You won't win and when the handcuffs are finally affixed, if you're still alive you'll almost certainly be treated to a few hits from their pocket defibrillators.

  9. says

    Jenn: regarding teachers. I'd say no to recording in class. That involves other students, not just the teacher. I do think parents should have the right to observe classes, but subject to the constraint that they only observer (ie. the sit quietly at the back, don't comment and don't interject themselves into the class) and any objections are to be brought up in a meeting with the teacher and administrators later. But for student/teacher conferences or meetings with administrators? Absolutely recording should be allowed and ought to be done by default. These are official on-the-record proceedings, there should be a record of them if there's a dispute about what was said or done. It's much easier to resolve disputes when you don't have to take someone's word about what happened.

    I have the same attitude about recording police: the performance of their duties is on-the-record. A solid recording is probably the best piece of evidence they could bring up when faced with a false charge of misbehavior. Even if the complainant uses edited snippets to mislead, playing back the entirety of the recording will starkly highlight their editing job and make their tactic backfire on them. The recording is only problematic for the police if they intend to misbehave and don't want clear evidence of misbehavior on the record. And if that's the case, I have no sympathy for the poor dears.

  10. Frank says

    Forgive my tinfoil-hattedness, but doesn't the fact that SCOTUS refused to hear this prevent it from applying to other states?
    I love the decision, but wish it went further, like to all the states.

  11. Patrick H says

    @C. S. P. Its MUCH more recent, and it follows the rise of the drug war and murderous cops. See Grigg's article about it.

    @David Why not? If they are going to kill you anyway, why not fight back? In my view, the right to resist follows directly from the right to self defense. A uniform and badge doesn't magically take my right to my life away from me. I fully support the right to resist, even in states when its illegal (like PA, which violates the state constitution). The courts need to start to allow the right to resist again, and then eliminate qualified immunity. Good faith my ass- cops need to be prosecuted.

  12. Mercury says

    Once everything finally becomes illegal, the police or any number of the 73 federal agencies that have the power to arrest/harrass you will do so selectively and “legally” whether there is a video camera present or not.

    This decision just means that it will be that much easier for the arrestee (and everyone else involved) to have their 15 minutes before getting carted off to jail for moving a rock or riding a fucking manatee or taking a piss on "protected" land. But you're still going to jail for whatever stupid reason some bureaucrat dreamed up yesterday. It's just that now you have a memento.

    Eventually the authorities in question will figure out that they want to be the ones to media-monetize a law enforcement event and so they will film the thing themselves with quality gear and (likely) in circumstances of their choosing. When that starts to pay dividends one of the key inputs about how selectively any given law will be enforced at any given time will become: how much will the video be worth?

  13. W. C. Taqiyya says

    I tend to agree with Frank's comment that the 7th circuit's decision only applies as authoritative precedent in those states. I believe other circuit courts will treat this decision as advisory. But, I may be mistaken. Moreover, I am not as sanguine about this non-decision decision as Ken appears to be. It is equally plausible that the SCOTUS merely awaits for the opportunity to rule against recording the actions of police officers. That opportunity may come in a case in which a police officer was recorded during an arrest and was retaliated against by whoever. Maybe by a drug gang, for example. Remember, the SCOTUS ruled in favor of Obama-care and has done nothing about rendition, Gitmo, torture, warrantless wiretapping and searches, drones or even the disappearing of Americans the POTUS labels a terrorist sympathizer. Never before have our Constitutionally protected rights been as shredded and the Supreme Court does nothing but aid and abet the shredding. I do not see much cause for optimism.
    This blog is very good though and that's something. : )

  14. says

    @Patrick H
    I'm not nearly informed enough to discuss the legalities of resisting arrest but from a purely self-preservation-based perspective (which is how I saw C. S. P.'s comment), I still say it's a bad policy. It's not a foregone fact that the police kill everyone they arrest but your chances of being mortally wounded go up exponentially when you resist.

  15. Orv says

    I remember being challenged by a Seattle cop because I happened to have my cell phone out while he was asking a homeless person to leave the library. I was texting but he immediately came up to me and asked, "are you recording me?" in a tone that suggested I had better not be.

  16. ShelbyC says

    "I tend to agree with Frank's comment that the 7th circuit's decision only applies as authoritative precedent in those states…"

    I'm sure somebody smarter than me will correct me if I'm wrong, but I believe that the decision only applies to Illinois. Plantifs with standing in other states within the 7th circuit could sue in federal court for declaratory and injunctive relief in those states like the plantifs did here, and federal courts within the 7th circuit would be bound by this decision, but state courts are not bound by this, and prosecutors in other states within the 7th circuit can still charge people under similar statutes, if there are any.

  17. Tom says

    ShelbyC et al.,

    This is binding precedent for all courts in the Seventh Circuit (and the First has similar precedent). Since this ruling was based on the First Amendment and since the US Constitution = Supreme Law of the Land, this is true for both state and federal courts. It happens that no other state in the Seventh has a similar law, but if a state passed one, it would be held to be invalid by the trial judge early on in the first criminal prosecution and by every higher court that considered it.

    Declaratory actions are a pain in the ass and would likely go nowhere even in a state with such a law. The ACLU's success in this case, notwithstanding.

  18. ShelbyC says

    @Tom, interesting. Why would this be binding on state courts? Typically rulings of federal courts below the Supreme Court on questions of federal law are not binding on state courts. Is there something special about declaritory judgements that make them binding?

  19. Tom says


    Nope. There's something special about constitutional judgments in federal court. Same way a federal district court in California and the Ninth Circuit shot down Prop 8 in a non-declaratory-judgment case. Once a circuit court does it, it's binding on any court, state or federal, in the circuit that considers that same constitutional question. Same with all federal law, actually (with complex and boring caveats).

  20. Tom says

    In fact, just think of prominent constitutional decisions and you'll find most invalidated state laws (granted, they're all SCOTUS cases, but the states wouldn't appeal them if the decisions weren't biding on them): Tinker, Brown, Grizwald. . .

    Shit, if a federal court tells a private business (public accommodation) owner (Heart Of Atlanta) that they can't discriminate based on race, then neither can any other public accommodation within its jurisdiction. Maybe that's the confusion. Jurisdiction is generally geographic (the Court of Claims, FISC, and some others aren't), and in a given place the federal law is what the highest federal court with jurisdiction over the actual land and has ruled on the issue says it is. Only SCOTUS can determine what the law is for all the states, but any actor, state or otherwise, subject to the jurisdiction of a federal court is bound by that court's interpretation of federal law.

  21. Tom says

    I guess there is something special about claims for declaratory judgment in that they can get you into federal court on a state criminal law without going through the nearly impossible routes of SCOTUS cert. or habeas. But really, federal law is supreme and federal courts decide (subject to controlling higher courts' decisions) what federal law is in their jurisdiction. It's really that simple.

    I'll now resume my usual lurking.

  22. says

    " Typically rulings of federal courts below the Supreme Court on questions of federal law are not binding on state courts. "

    Shelby, I think you got confused by the concept that an appeal from a state appellate system on a Federal issue would go from that state's supreme court (or highest appellate court if like New York they can't correctly name their freakin' state Supreme Court right …) to the US Supreme Court.

    But as a party can either file in a Federal district court, or as a defendant often remove a case from state court to Federal district course where there is a question of Federal law or constitutional right, that that is the appellate path of a case that stayed in state court system isn't that important.

  23. ShelbyC says

    Could you de-lurk to provide a little more information (or citations) on the fact that state courts are bound by federal circuit courts? This is contray to what I've seen. For example, in People v McCarty, the Colorado Supreme Court declined to join the 10th circuit (US v. McCane) in finding a good-faith exception to the exclusionary rule for changing law. In State v. Baker, the Utah Supreme Court found the same precedent persusive and agreed with it, but certainly didn't treat itself as bound.

  24. Peter Orlowicz says

    I always felt Illinois' law on audio recordings was different than a lot of other states, in that it's a two-party consent state for everyone, police not excepted. There are narrow exceptions for traffic stops, for example, when the audio is linked to a dashboard video camera, but if an undercover officer wants to audio record a drug transaction, they have to get a judicial warrant to do so. I don't really agree that police officers should be specially disadvantaged in their conversational privacy. Moreover, I get the sense the special concern here is explicitly and specifically about police officers, and not, say, streets and sanitation workers or the desk workers at the Secretary of State's Office where you get vehicle registrations and driver's licenses. This is really a different aspect of Jenn's original point about teachers.

    As a matter of fact, how much does this really change anything? Won't third parties/bystanders still be unable to make recordings without the consent of the (private) individual making contact with the police officer? Or do you as a private individual give up your privacy rights merely by interacting with a public servant, not necessarily consensually? You might want to record a parent-teacher conference, but how do you feel about some other kid's parent recording your conference from the hallway to try and show the teacher is playing favorites?

    To be clear, I'm not suggesting police officers or other public servants ought to have special privileges against being recorded; I just think they ought to have the same privileges as the rest of society.

  25. Tom says


    I'm not familiar with those cases, but on a quick skim, it appears that the Colorado court saw SCOTUS and CA10 as conflicted on the law and felt bound by the SCOTUS reasoning. And maybe the Utah court felt that there was enough discrepancy to choose its SCOTUS interpretation (that just happened to coincide with CA 10). Dunno.

    It is true that state courts aren't procedurally bound to follow their Circuit's precedent (so they, unlike federal district courts can decide that a circuit has misinterpreted SCOTUS precedent if it exists), but they're legally bound to follow the highest federal court with jurisdiction that has ruled on the issue–which means lower federal courts if there's not arguably misinterpreted SCOTUS precedent on point.

  26. LawDragon says

    Regarding resisting illegal arrests, look to your state's statute. I handled a case like that in Oregon and it was quite interesting. Oregon happens to have a subparagraph to the resiting arrest statute that specifically states that resisitng an illegal arrest is still resisiting arrest, a separate crime. My client was arrested illegally for resuing to answer officer questions (Oregon also has common law that states a person does not have to speak with police) and then she resisted and got Tasered. It was an interesting trial with lots of jury nullification going on.

  27. Tom says

    mea culpa: I think I understated the importance of what I lazily termed the "procedural"/"legal" dichotomy. My point was that state courts can do their thing, but if state court decisions on federal law find their way before a federal judge, the federal judge wins.

    See, e.g.:

    I'll stop clogging the comment for real now.

  28. Fred Zeppelin says

    @ Jenn

    In addition to what Todd said, many teachers also consider their lectures and slides/powerpoints to be intellectual property.

    Also, I would imagine that knowing the classroom was being recorded would have a chilling effect on speech, especially student questions. I said a LOT of dumb things as a student, and I can't imagine those statements recorded, edited/cropped, and posted to youtube. Ugh.

  29. Peter H says

    Re; Jurisdiction/constraints on State courts.

    The 7th circuit covers 3 states, Illinois, Indiana, and Wisconsin. Within those states, this ruling is the law of the land.

    There is one court that can change that: The Supreme Court of the United States. All other courts within Illinois, Indiana, and Wisconsin are bound by the decision, including the highest courts of the states in the jurisdiction of the 7th circuit.

    If an identical case appeared in Indiana state court, that court (and the appellate courts of Indiana) would be obliged to rule as the 7th circuit did. Once the highest court of Indiana ruled on the question, that ruling could then be appealed to the Supreme Court of the US, who would have the power to overturn the 7th Circuit decision.

    The reason for this is that in a fight between federal and state law, federal law wins. And in a fight between statutes and the constitution, the constitution wins. And in a fight between a federal court and a state court, the federal court wins. This was a ruling about the federal constitution, which, on the basis of the federal constitution, ordered Illinois to not enforce this law. That order applies to Illinois state courts as well as Illinois state police, and further is a binding precedent on Indiana and Wisconsin state courts and police.

    The confusion I think lies in the fact that when a state's highest court rules, there's a provision allowing the case to skip to the top of the federal system and go right to the Supreme Court of the US. However, that doesn't mean that the state's highest court is subordinate only to SCOTUS, it's just a procedural thing. The state's highest court is also subordinate to the circuit court having jurisdiction, it's just that the appeals process doesn't lead directly there.

  30. ShelbyC says

    @Peter H, I think that's wrong. State courts are of course bound by federal law, but they are not bound by any federal court's interpretation of federal law other than SCOTUS. For example, Ginsburg, during oral arguments for Carey v. Musladin in 2006, asked Musladin's lawyer, "But in here it — you agree that the California court has as much authority to say what Federal law is as the Ninth Circuit, right? They are on a par. Ninth Circuit decisions in no way binds the Supreme Court of California." And the response was "That is correct."

  31. Eyoga says

    On the subtopic here on "What should I do if I am arrested unlawfully?"

    I'll caveat this by saying "I'm not a lawyer but I don't play one on TV", yet I read some about this subject because it keeps coming up.

    Because of limits in many states, resisting an unlawful arrest can be a very risky thing. In most states, it will still be a crime to resist a police officer, even if the arrest would be illegal. In New York, for example, just questioning a cop while he's affecting an arrest can be considered resisting.

    It can be very difficult to know under what circumstance, if any, it is permissible to resist arrest and what amount of force can be used. Because of this, if you are being arrested you should go peacefully. If you then feel that you have been wrongfully arrested, you can file a complaint for police misconduct and then follow up with a civil suit.

    While I agree that sometimes and in some states a person may utilize force to resist an illegal arrest, I am not sure that a detention would rise to the same level. I certainly would offer that a layman would find it very difficult to know what is, and is not, an illegal arrest. Since the police have a far wider latitude to detain people than they do to arrest people – I submit that the average person on the street would have not be able to tell a legal arrest from an illegal one.

    Or as Judge Billings Learned Hand, of the Court of Appeals for the Second Circuit, once said: "The idea that you may resist peaceful arrest . . . because you are in debate about whether it is lawful or not, instead of going to the authorities . . . seems to me not a blow for liberty but, on the contrary, a blow for attempted anarchy."

    Now, if the arrest becomes abusive to the point a reasonable man feels his life was at stake it becomes a different matter. Such as one case (I can't recall the name of) that appeared on the news a few years back about a man who was handcuffed in the back of the patrol car that said something the arresting cop didn't like, who then dragged the handcuffed man out of the car and began beating him and the only defense the man had to protect his life was to kick back. The cop told the judge the man's injuries was caused by his resisting arrest, but a video recording by another patrol car behind them showed what had happened and the judge agreed with the defense's interpretation of Plummer v. State, 136 Ind. 306. in concluding that you have the right of self-defense if an officer (or anyone else) attacks you or your life is in danger but you cannot resist an arrest (lawful or unlawful) unless your life is in danger. Again, the "reasonable man" rule applies here and cops have legal permission to use superior force to effect an arrest, but not beyond.

    One other case law sums up the principle: State v. Wick, 331 N.W.2d 769, 771, where (paraphrasing) there's no right to resist an unlawful arrest or search, unless the officer commits an unjustified bodily attack.

    Now, before someone brings up the specter of "John Bad Elk", remember common law privilege established in the seventieth century and held over during the country's founding can be overwritten by statuary law. Common law is not absolute. And besides, "John Bad Elk v. United States" refers back to "Ballard v. State" in that 'It is the law that a person illegally arrested by an officer may resist that arrest, even to the extent of the taking of life IF HIS OWN LIFE OR ANY GREAT BODILY HARM IS THREATENED' (emphasis mine).

  32. LW says

    Slightly off-topic, but suppose that a State constitution provided *greater* rights than the Federal constitution. Does the State constitution control? In particular, could the act of a Federal agent be held to be unconstitutional under the State constitution even though it was constitutional under the Federal constitution? Could the Feds simply ride roughshod over State constitutional rights?

  33. Grifter says


    I think technically that's an enumerated powers issue; if it's something the feds have specific jurisdiction over (a specific, if ridiculous for this discussion, being interstate commerce), then they can run roughshod because it wouldn't be legit in the first place. Now, considering I wager you're wondering about things like drug laws…that's for them real fancy folk lawyers to answer for you.

  34. Eyoga says

    The Supremacy Clause (Article VI, Clause 2) of the United States Constitution declares that federal laws are the "supreme Law of the Land." Hence, state court laws are inferior so long as the federal law is valid (constitutional). Even where there is no federal jurisdiction, states still cannot pass un-Constitutional laws.

    One example is the content of Education. Educational curriculum is set by the states – while the Federal government can provided funding if certain other criteria are met, the final say on what curriculum a child is taught is up to the states. However, no state law can violate the Constitution – thus, a state cannot mandate the teaching of a religion in its schools, since that would clearly violate the 1st Amendment to the Constitution.

    Other examples are: some states hold that their residents have an "expectation of privacy" in their garbage, meaning that the government must have probable cause to search garbage. Some states hold that traffic "check lanes," where entire lanes of drivers are stopped and checked by the police, are unconstitutional. The United States Supreme Court has held that the Federal Constitution does not recognize an expectation of privacy in garbage, and that traffic check lanes are constitutionally permissible.

    States can only add to your Federal constitutional rights — they cannot pass constitutional amendments that restrict the rights you receive under the Federal Constitution.

    Regarding Federal Agents, which I'm assuming you're meaning Law Enforcement, the Supremacy Clause holds sway if there's a conflict between Federal and State laws. And Federal Agents are also protected by the doctrine of qualified immunity for performing law enforcement duties. Usually, AFAIK, some Feds are also dual-trained in state law where they operate as well as federal law and sometimes are deputized in the state as part of an agreement with the federal government (I know Customs Agents are). In situations where Federal Agents don't have this privilege they would bring state agents with them to cover that base as part of a joint task force.

    Depending on the state, Feds may not make arrests on purely state laws if none of the above applies. I'm aware California is one those ("the federal agents had no authority as such to arrest [defendant], because he was not accused of violating any federal law" People v. Monteverde (1965) 236 Cal.App.2d 630, 644). In other states, such as Texas, certain federal agents (not all agencies with special agents) can make arrests as a peace officer for felonies and breach of the peace, but only those crimes. Feds can make a "citizen's arrest under color of law" if no local officer is available (not uncommon on the border, for example), then "un-arrest" them when meeting up with the locals.

    Again, I'm not a lawyer and don't play one on TV.

  35. LW says

    Eyoga, thank you.  I think you're talking more about State laws than a State constitution, though. The Supremacy Clause means Federal laws prevail over State laws, and of course no State law or Constitution can reduce rights under the Federal constitution, but I can think of areas where one might want to increase protections. 

    E.g., suppose a State constitution were amended to provide that freedom of speech within the State includes freedom of thought, so that "hate crimes" cannot have enhanced penalties based on thoughtcrime.

    Or that prosecution for any crime committed within the State requires a threshold showing that there is some reasonable expectation that the accused could have known about the law said to have been violated.

    Or that in any action to forfeit property, the prosecution bears the burden of proof that the property was used by its owner or with his permission for crime.

    All of these examples would run directly against Federal law, but they provide more rights to domiciliaries of the State than the Federal constitution does.