An arrest affidavit and complaint filed against a Marlin police captain details sexual abuse of a woman who feared the captain would arrest her if she did not capitulate to his requests, because she had entered the country illegally.
Hector Almazan Gonzalez, 51, of Marlin, was arrested Wednesday by the Texas Rangers on a second-degree felony charge of sexual assault. Marlin Mayor John Keefer said Gonzalez resigned after his arrest Wednesday night.
“The only statement we are making at this point is that he has officially resigned. He resigned at 7:55 p.m. last night to the city manager,” Keefer said Thursday. “At this point, that has just been a verbal (resignation), and we have asked for a written, just so we have it for our file. But at this point, he is no longer employed as far as we are concerned with the city of Marlin.”
The district attorney notified authorities on June 20 about allegations of sexual misconduct against Gonzalez where he allegedly approached a woman about her legal status, the arrest affidavit states. Gonzalez allegedly forced the woman into sex acts using his power as a law enforcement officer.
“She claims since meeting Captain Gonzalez he has approached her on many occasions and has let her know that he is aware she is an undocumented alien,” the affidavit states. “She stated that Gonzalez told her that he could arrest her for being illegal, but he would not do that if she would have sex with him.”
The woman initially refused, stating she did not want to have sex with Gonzalez. She also claimed that Gonzalez sexually touched her one day, the affidavit states.
“(The woman) explained Captain Gonzalez promised to keep her safe and take care of things for her because she had no documents to be in the United States,” the affidavit states. “He told her if she ever got in trouble with law enforcement for her to call him for help in exchange for sex.”
The affidavit states that the woman was involved in a vehicle crash in another jurisdiction and needed help getting a crash report in late June. Gonzalez allegedly went to the jurisdiction, showed his police badge, obtained the information the woman requested and brought it to the Marlin Police Department where he used a department computer to get the crash report.
“After printing the crash report, Gonzalez told (the woman) that he would not give her the report unless she would have sex with him,” the affidavit states. “
The woman denied Gonzalez’s sexual proposition but later agreed to engage in oral sex, the affidavit states.
“(The woman) explained she kept Captain Gonzalez (as) her friend, because she did not want to be arrested by him for being an illegal alien,” the affidavit states. “She explained she felt compelled to let Captain Gonzalez perform oral sex on her because he is a police officer and he can take care of her problems and she did not want to be arrested for being an undocumented alien.”
Investigators reported that the woman has been attempting to avoid seeing Gonzalez since the incident.
Texas Rangers arrested Gonzalez at a Marlin financial institution late Wednesday afternoon where he was reportedly working off-duty. He was taken to Falls County Jail before he posted a $50,000 bond and was released from custody.
Texas Department of Public Safety Sgt. D.L. Wilson said the investigation remains ongoing.
NYPD officers have been accused of trying to prevent hundreds of civilians from videotaping them over the past three years by knocking cell phones from their hands, blocking them or threatening to arrest them, according to a report by the Civilian Complaint Review Board.
The CCRB received 257 complaints from 2014 to 2016, making 346 allegations that officers tried to interfere with civilian recordings of police activity, according to the report, released early Wednesday.
The watchdog agency substantiated 96 of those 346 allegations, or 28%.
The CCRB is recommending that the NYPD add a new Patrol Guide entry with guidelines on what to do if a civilian pulls out a camera phone and starts taping — including a section describing the public’s right to record police activity.
More than half of the complaints were made by people recording their own interactions with cops, and in 65 cases, the officers were accused of damaging the recording device or deleting the recording.
AMERICAN CIVIL LIBERTIES UNION OF ILLINOIS, Plaintiff-Appellant,
Anita ALVAREZ, Defendant-Appellee.
No. 11-1286.United States Court of Appeals, Seventh Circuit.
Argued September 13, 2011.Decided May 8, 2012.585*585 Richard J. O’Brien (argued), Attorney, Sidley Austin LLP, Chicago, IL, for Plaintiff-Appellant.
James C. Pullos (argued), Paul A. Castiglione, Attorneys, Office of the Cook County States Attorney, Chicago, IL, for Defendant-Appellee.
586*586 Lucy A. Dalglish, Attorney, Reporters Committee for Freedom of the Press, Arlington, VA, for Amicus Curiae.
Before POSNER, SYKES, and HAMILTON, Circuit Judges.
SYKES, Circuit Judge.
The Illinois eavesdropping statute makes it a felony to audio record “all or any part of any conversation” unless all parties to the conversation give their consent. 720 ILL. COMP. STAT. 5/14-2(a)(1). The statute covers any oral communication regardless of whether the communication was intended to be private. Id. 5/14-1(d). The offense is normally a class 4 felony but is elevated to a class 1 felony — with a possible prison term of four to fifteen years — if one of the recorded individuals is performing duties as a law-enforcement officer. Id. 5/14-4(b). Illinois does not prohibit taking silent video of police officers performing their duties in public; turning on a microphone, however, triggers class 1 felony punishment.
The question here is whether the First Amendment prevents Illinois prosecutors from enforcing the eavesdropping statute against people who openly record police officers performing their official duties in public. More specifically, the American Civil Liberties Union of Illinois (“ACLU”) challenges the statute as applied to the organization’s Chicago-area “police accountability program,” which includes a plan to openly make audiovisual recordings of police officers performing their duties in public places and speaking at a volume audible to bystanders. Concerned that its videographers would be prosecuted under the eavesdropping statute, the ACLU has not yet implemented the program. Instead, it filed this preenforcement action against Anita Alvarez, the Cook County State’s Attorney, asking for declaratory and injunctive relief barring her from enforcing the statute on these facts. The ACLU moved for a preliminary injunction.
Faced with so obvious a test case, the district court proceeded with some skepticism. The judge dismissed the complaint for lack of standing, holding that the ACLU had not sufficiently alleged a threat of prosecution. The ACLU tried again, submitting a new complaint addressing the court’s concerns. This time, the judge held that the ACLU had cured the original defect but had “not alleged a cognizable First Amendment injury” because the First Amendment does not protect a “right to audio record.” The judge denied leave to amend. The ACLU appealed.
We reverse and remand with instructions to allow the amended complaint and enter a preliminary injunction blocking enforcement of the eavesdropping statute as applied to audio recording of the kind alleged here. The Illinois eavesdropping statute restricts a medium of expression commonly used for the preservation and communication of information and ideas, thus triggering First Amendment scrutiny. Illinois has criminalized the nonconsensual recording of most any oral communication, including recordings of public officials doing the public’s business in public and regardless of whether the recording is open or surreptitious. Defending the broad sweep of this statute, the State’s Attorney relies on the government’s interest in protecting conversational privacy, but that interest is not implicated when police officers are performing their duties in public places and engaging in public communications audible to persons who witness the events. Even under the more lenient intermediate standard of scrutiny applicable to content-neutral burdens on speech, this application of the statute very likely flunks. The Illinois eavesdropping statute restricts far more speech than necessary to protect legitimate privacy interests; as 587*587 applied to the facts alleged here, it likely violates the First Amendment’s free-speech and free-press guarantees.
A. The Illinois Eavesdropping Law
In 1961 the Illinois General Assembly enacted a law making it a crime to use “an eavesdropping device to hear or record all or part of any oral conversation without the consent of any party thereto.” 1961 Ill. Laws 1983. The statute defines “eavesdropping device” as “any device capable of being used to hear or record oral conversation.” Id. (codified at 720 ILL. COMP. STAT. 5/14-1(a)); see also Celia Guzaldo Gamrath, A Lawyer’s Guide to Eavesdropping in Illinois, 87 ILL. B.J. 362, 363 (1999) (discussing the history of the Illinois eavesdropping law). The legislature later amended the law to require the consent of “all of the parties” to the conversation. Ill. Pub. Act 79-1159 (1976) (codified at 720 ILL. COMP. STAT. 5/14-2(a)(1)).
In People v. Beardsley, 115 Ill.2d 47, 104 Ill.Dec. 789, 503 N.E.2d 346, 349-50 (1986), the Illinois Supreme Court adopted a narrow interpretation of the eavesdropping statute, declaring that audio recordings were prohibited only if the circumstances “entitle [the conversing parties] to believe that the conversation is private and cannot be heard by others who are acting in a lawful manner.” In other words, recording a conversation was punishable under the eavesdropping statute only if the conversing parties had an “expectation of privacy,” though the court remarked that the expectations of privacy protected under the statute were not necessarily “coextensive with those imposed on governmental action by the fourth amendment.” Id.,104 Ill.Dec. 789, 503 N.E.2d at 351.
The eavesdropping statute exempts recordings made by law-enforcement officers 588*588 for law-enforcement purposes; officers have substantial discretion to record a wide variety of police-civilian encounters without the subject’s consent. 720 ILL. COMP. STAT. 5/14-3(h). These include any “enforcement stop,” a broadly defined term that includes “traffic stops,” “motorist assists,” “pedestrian stops,” and “requests for identification.” Id. Surreptitious law-enforcement intercepts for investigative purposes are governed by different subsections of the statute. See id. 5/14-3(g), (g-5), (g-6). The eavesdropping statute also contains an exemption for the media, at least in some circumstances; it exempts any recording made for “broadcast by radio, television, or otherwise” for live or “later broadcasts of any function where the public is in attendance and the conversations are overheard incidental to the main purpose for which such broadcasts are then being made.” Id. 5/14-3(c).
B. The ACLU’s First Amendment Challenge
The ACLU filed this suit against Alvarez in her official capacity seeking declaratory and injunctive relief under 42 U.S.C. § 1983 barring her from enforcing the eavesdropping statute against audio recording that the organization plans to carry out in connection with its “police accountability program.” More specifically, the ACLU intends to implement a “program of promoting police accountability by openly audio recording police officers without their consent when: (1) the officers are performing their public duties; (2) the officers are in public places; (3) the officers are speaking at a volume audible to the unassisted human ear; and (4) the manner of recording is otherwise lawful.” The program will include, among other things, audiovisual recording of policing at “expressive activity” events — protests and demonstrations — in public fora in and around the Chicago area. The organization also plans to make audiovisual recordings of policing at “expressive activities” carried out by its members. The ACLU intends to publish these recordings online and through other forms of electronic media.
The ACLU alleged that its planned audiovisual recording is protected under the First Amendment’s speech, press, and petition clauses, but because of a credible fear of prosecution, it has not followed through on its program. The complaint asked for a declaratory judgment holding the eavesdropping statute unconstitutional as applied to the ACLU’s planned recording and for a corresponding injunction barring the Cook County State’s Attorney from enforcing the statute against the ACLU or its agents who carry out the recording. The ACLU also moved for a preliminary injunction.
The State’s Attorney moved to dismiss under Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure, arguing that the ACLU lacks standing and failed to state a claim of a First Amendment violation. The district court granted the motion on jurisdictional grounds, holding that the complaint did not adequately allege a credible fear of prosecution and that the ACLU therefore lacked standing to sue. The dismissal was without prejudice, however, so the ACLU moved to amend the judgment under Rule 59(e) to allow an amended complaint under Rules 15(a)(2) and 21. The proposed amended complaint addressed the standing defect the court had identified, adding two individual plaintiffs — Colleen Connell, the ACLU’s Executive Director, and Allison Carter, the ACLU’s Senior Field Manager — and more detail about the threat of prosecution. The ACLU renewed its motion for a preliminary injunction.
589*589 The State’s Attorney opposed this second round of motions, and again the district court agreed. The judge held that although the ACLU had “cured the limited standing deficiencies” and now “sufficiently alleg[ed] a threat of prosecution,” the proposed amended complaint contained a different standing defect. Relying on Potts v. City of Lafayette, 121 F.3d 1106, 1111 (7th Cir.1997), the judge held that “[t]he ACLU has not alleged a cognizable First Amendment injury” because the First Amendment does not protect “a right to audio record.” The judge also held that the ACLU had no First Amendment injury because the police officers and civilians who would be recorded were not “willing speakers.” The judge viewed the ACLU’s claim as “an unprecedented expansion of the First Amendment” and held that granting leave to amend would be futile because “[t]he ACLU has not met its burden of showing standing to assert a First Amendment right or injury.” The judge denied the motion to amend and thus declined to address the request for a preliminary injunction. This appeal followed.
A. Rule 59(e), Rule 15(a), and Preliminary-Injunction Standards
The district court’s decision turned on mistaken understandings about the relevant First Amendment doctrine. As we will explain, the ACLU and its employees have standing; they face a credible threat of prosecution under the eavesdropping statute, and their amended complaint plainly alleges a First Amendment injury. Denying leave to amend also had the effect of denying the ACLU’s request for preliminary injunctive relief. The ACLU asks that we address that matter here.
“To win a preliminary injunction, a party must show that it has (1) no adequate remedy at law and will suffer irreparable harm if a preliminary injunction is denied and (2) some likelihood of success on the merits.” Ezell v. City of Chicago, 651 F.3d 684, 694 (7th Cir.2011). If the moving party makes this threshold showing, the court “weighs the factors against one another, assessing whether the balance of harms favors the moving party or whether the harm to the nonmoving party or the public is sufficiently weighty that the injunction should be denied.” Id.
The parties have fully briefed the likelihood of success on the merits, which raises only a legal question. In this situation, it makes sense for us to address whether preliminary injunctive relief is warranted. See Wis. Right to Life State PAC v. Barland, 664 F.3d 139, 151 (7th Cir.2011) (on appeal from an abstention order, deciding the plaintiff’s entitlement to an injunction because it raised a pure legal question under the First Amendment).
We are confronted, then, with a series of legal questions: (1) has the ACLU established standing to sue; (2) does the amended complaint state a claim for a First Amendment violation; and (3) is that claim likely to succeed? The district court stopped after the first inquiry, holding that the ACLU does not have standing to sue because it has no cognizable First Amendment injury. The State’s Attorney urges us to affirm this standing determination, though on a different rationale. In the alternative, she maintains that the proposed amended complaint does not state a claim for an actionable First Amendment violation. Standing comes before the merits, of course, In re Aqua Dots Prods. Liab. Litig., 654 F.3d 748, 750 (7th Cir. 2011), but as we’ll see, in this case there is some overlap, see Bond v. Utreras, 585 F.3d 1061, 1073 (7th Cir.2009).
a plaintiff must show that he is under threat of suffering “injury in fact” that is concrete and particularized; the threat must be actual and imminent, not conjectural or hypothetical; it must be fairly traceable to the challenged action of the defendant; and it must be likely that a favorable judicial decision will prevent or redress the injury.
The district court dismissed the first version of the ACLU’s complaint because it did not sufficiently allege a credible threat of prosecution under the eavesdropping statute. The proposed amended complaint added two individual plaintiffs — ACLU employees Connell and Carter — and more details about the threat of prosecution, including information about recent prosecutions under the eavesdropping statute on like facts. That was enough to satisfy the district court on this point; based on the new allegations, the judge found that “[t]he threat of prosecution is credible and imminent.” At this point, however, the judge perceived a different standing defect — one related to the merits of the claim. Relying on our decision in Potts, the judge held that the First Amendment does not protect a “right to audio record” and therefore the ACLU had not alleged a constitutional injury. This was a misreading of Potts.
The issue in Potts was whether a police officer may refuse entry to an onlooker at a Ku Klux Klan rally because he wanted to bring a video camera onto the site. 121 F.3d at 1109-12. Past Klan rallies had inspired violence, so the police in Lafayette, Indiana, where the rally was to be held, established a rule banning any object that could be used as a weapon or projectile. John Potts arrived with a small video recorder and was denied entry based on the broad “no weapons” rule. He defied a police officer’s order and entered anyway, and was promptly arrested.
Potts then sued the City of Lafayette and two officers alleging First and Fourth Amendment violations. We affirmed the summary judgment in favor of the defendants. Id. at 1114. Addressing the First Amendment claim, we said that “there is nothing in the Constitution which guarantees the right to record a public event.” Id. at 1111 (citing Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 610, 98 S.Ct. 1306, 55 L.Ed.2d 570 (1978) (explaining that the Sixth Amendment does not require broadcasting trials to the public); United States v. Kerley, 753 F.2d 617, 620-22 (7th Cir.1985) (recognizing that the exclusion of cameras from federal courtrooms is constitutional)). The district court seized on this single sentence from Potts and read it for much more than it’s worth.
Immediately after this sentence is the following clarifying explanation: “The right to gather information may be limited under certain circumstances…. The proper constitutional measure of the … `weapons’ ban is whether the restriction constitutes a valid time, place, or manner regulation.” Id. In other words, as applied to Potts, Lafayette’s ban did implicate 592*592 free-speech interests under the First Amendment, but it was subject to review under the “time, place, or manner” standard applicable to content-neutral regulations. Our opinion in Potts continues on for several more pages, carefully applying that standard and upholding the weapons ban. Id. at 1111-12. If Potts stood for a categorical proposition that audiovisual recording is wholly unprotected, as the district court seemed to think, none of this analysis would have been necessary.
The court’s second reason for rejecting the amended complaint was also off the mark. The judge held that without a “willing speaker,” the ACLU had no First Amendment injury. In other words, because the ACLU does not plan to obtain consent from the officers and others whose communications will be recorded, there will be no “willing speakers” and the ACLU has no First Amendment right to receive and record their speech. By conceptualizing the case in this way, the judge seems to have assumed that, at most, only derivative speech rights are at stake.
Any bystander within earshot can hear what police officers say in public places; “receipt” occurs when the speech is uttered in public and at a volume that others can hear. In other words, the officers’ speech is “received” at the moment it is heard; the eavesdropping statute obviously does not prohibit this. The ACLU’s challenge to the statute implicates a different set of First Amendment principles. The “right to receive” strand of First Amendment doctrine — with its “willing speaker” precondition — has no bearing on the ACLU’s standing.
The State’s Attorney does not argue otherwise. Instead, she returns to the original standing problem that the district court identified. Alvarez maintains, as she did in the district court, that the ACLU has not alleged a credible threat of prosecution. We disagree. The eavesdropping statute plainly prohibits the ACLU’s proposed audio recording; Alvarez acknowledges as much. The recording will be directed at police officers, obviously increasing the likelihood of arrest and prosecution. The statute has not fallen into disuse. To the contrary, the ACLU has identified many recent prosecutions against individuals who recorded encounters with on-duty police officers; three of these were filed by Alvarez’s office. Finally, 593*593 Alvarez has not foresworn the possibility of prosecuting the ACLU or its employees and agents if they audio record police officers without consent. See Commodity Trend Serv., Inc. v. Commodity Futures Trading Comm’n, 149 F.3d 679, 687 (7th Cir.1998) (“The Supreme Court has instructed us that a threat of prosecution is credible when a plaintiff’s intended conduct runs afoul of a criminal statute and the Government fails to indicate affirmatively that it will not enforce the statute.” (citing Virginia v. Am. Booksellers Ass’n, Inc., 484 U.S. 383, 393, 108 S.Ct. 636, 98 L.Ed.2d 782 (1988))). These allegations are easily sufficient to establish a credible threat of prosecution.
Alvarez’s arguments to the contrary are unavailing. She insists that the ACLU’s program is “advocacy under the guise of First Amendment infringement” without any possibility of a “personal and concrete injury.” We confess we do not understand the point. The ACLU’s status as an advocacy organization hardly defeats its standing. The organization intends to use its employees and agents to audio record onduty police officers in public places. The ACLU claims a First Amendment right to undertake this recording, but the eavesdropping statute prohibits it from doing so. The ACLU itself, and certainly its employees and agents (Connell, Carter, and others), will face prosecution for violating the statute. See 720 ILL. COMP. STAT. 5/14-1(b), (c) (defining “eavesdropper” and the liability of an eavesdropper’s “principal”); see more generally id. 5/5-4(a)(2) (providing for corporate liability if the “offense is authorized, requested, commanded, or performed, by the board of directors or by a high managerial agent who is acting within the scope of his or her employment in behalf of the corporation”). Nothing more is needed for preenforcement standing.
The State’s Attorney maintains that the injury alleged here is “merely conjectural or hypothetical” because the threat of prosecution will only occur “at some indefinite future time” and “the identities of the parties to the conversations that [the] ACLU and its members want to audio record is wholly unknown.” This argument is a nonstarter. It is well established that in preenforcement suits “[i]njury need not be certain.” Brandt, 612 F.3d at 649. This is not a case in which the threat of prosecution hinges on a highly attenuated claim of speculative future events or unknowable details about the manner in which the statutory violation will be committed or enforced. Cf., e.g., City of Los Angeles v. Lyons, 461 U.S. 95, 105-06, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983) (future injury depended on plaintiff violating an unchallenged law and provoking constitutional violations based on the manner of police enforcement); Schirmer, 621 F.3d at 587 (challenged law could not “fairly be read to prohibit” plaintiffs’ actions).
It’s true that the ACLU does not know precisely when it or its employees would 594*594 face prosecution or which officers would be involved. Preenforcement suits always involve a degree of uncertainty about future events. See Brandt, 612 F.3d at 649 (“Any pre-enforcement suit entails some element of chance….”). So long as that uncertainty does not undermine the credible threat of prosecution or the ability of the court to evaluate the merits of the plaintiff’s claim in a preenforcement posture, there is no reason to doubt standing. Here, absent officer consent, the eavesdropping statute flatly prohibits the ACLU’s planned recording, exposing the organization and its employees to arrest and criminal punishment. The State’s Attorney has recently prosecuted similar violations and intends to continue doing so. That’s enough to establish a credible threat of prosecution.
On the merits the State’s Attorney has staked out an extreme position. She contends that openly recording what police officers say while performing their duties in traditional public fora — streets, sidewalks, plazas, and parks — is wholly unprotected by the First Amendment. This is an extraordinary argument, and it rests in large part on the same misreading of Potts and misapplication of the “willing speaker” 595*595 principle that infected the district court’s standing determination. We have already corrected these misunderstandings and need not repeat that analysis here.
For its part the ACLU contends that the eavesdropping statute, as applied to the facts alleged here, is subject to strict scrutiny. Whether strict scrutiny or some more forgiving standard of judicial review applies depends on what kind of First Amendment interest is at stake and how the eavesdropping statute affects that interest.
1. The Eavesdropping Statute Burdens Individual Speech and Press Rights
Unlike the federal wiretapping statute and the eavesdropping laws of most other states, the gravamen of the Illinois eavesdropping offense is not the secret interception or surreptitious recording of a private communication. Instead, the statute sweeps much more broadly, banning all audio recording of any oral communication absent consent of the parties regardless of whether the communication is or was intended to be private. The expansive reach of this statute is hard to reconcile with basic speech and press freedoms. For reasons we will explain, the First Amendment limits the extent to which Illinois may restrict audio and audiovisual recording of utterances that occur in public.
The act of making an audio or audiovisual recording is necessarily included within the First Amendment’s guarantee of speech and press rights as a corollary of the right to disseminate the resulting recording. The right to publish or broadcast an audio or audiovisual recording would be insecure, or largely ineffective, if the antecedent act of making the recording is wholly unprotected, as the State’s Attorney insists. By way of a simple analogy, banning photography or 596*596 note-taking at a public event would raise serious First Amendment concerns; a law of that sort would obviously affect the right to publish the resulting photograph or disseminate a report derived from the notes. The same is true of a ban on audio and audiovisual recording.
This is a straightforward application of the principle that “[l]aws enacted to control or suppress speech may operate at different points in the speech process.” Citizens United v. FEC, ___ U.S. ___, 130 S.Ct. 876, 896, 175 L.Ed.2d 753 (2010). The Illinois eavesdropping statute regulates the use of a medium of expression; the Supreme Court has recognized that “regulation of a medium [of expression] inevitably affects communication itself.” City of Ladue, 512 U.S. at 48, 114 S.Ct. 2038 (invalidating an ordinance banning residential signs). Put differently, the eavesdropping statute operates at the front end of the speech process by restricting the use of a common, indeed ubiquitous, instrument of communication. Restricting the use of an audio or audiovisual recording device suppresses speech just as effectively as restricting the dissemination of the resulting recording.
As our colleagues in the Ninth Circuit have observed, there is no fixed First Amendment line between the act of creating speech and the speech itself:
Although writing and painting can be reduced to their constituent acts, and thus described as conduct, we have not attempted to disconnect the end product from the act of creation. Thus, we have not drawn a hard line between the essays John Peter Zenger published and the act of setting the type. Cf. Minneapolis Star & Tribune Co. v. Minn. Comm’r of Revenue, 460 U.S. 575, 582, 103 S.Ct. 1365, 75 L.Ed.2d 295 (1983) (holding that a tax on ink and paper “burdens rights protected by the First Amendment”). The process of expression through a medium has never been thought so distinct from the expression itself that we could disaggregate Picasso from his brushes and canvas, or that we could value Beethoven without the benefit of strings and woodwinds. In other words, we have never seriously questioned that the processes of writing words down on paper, painting a picture, and playing an instrument are purely expressive activities entitled to full First Amendment protection.
This observation holds true when the expressive medium is mechanical rather than manual. For instance, “[i]f the state were to prohibit the use of projectors without a license, First Amendment coverage would undoubtedly be triggered. This is not because projectors constitute speech acts, but because they are integral to the forms of interaction that comprise the genre of the cinema.” Robert Post, Encryption Source Code and the First Amendment, 15 BERKELEY TECH. L.J. 713, 717 (2000).
So too with laws that restrict audio recording. Audio and audiovisual recording are communication technologies, and as such, they enable speech. Criminalizing all nonconsensual audio recording necessarily limits the information that might later be published or broadcast — whether to the general public or to a single family member or friend — and thus burdens First Amendment rights. If, as the State’s Attorney would have it, the eavesdropping statute does not implicate the First Amendment at all, the State could effectively control or suppress speech by the simple expedient of restricting an early step in the speech process rather than the end result. We have no trouble rejecting that premise. Audio recording is entitled to First Amendment protection.
In this regard, the ACLU’s challenge to the eavesdropping statute also draws on the principle that the First Amendment provides at least some degree of protection for gathering news and information, particularly news and information about the affairs of government. See598*598Branzburg v. Hayes, 408 U.S. 665, 681, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972). In Branzburg a news reporter claimed a First Amendment privilege to refuse to testify before a grand jury about his confidential sources. Id. at 667, 92 S.Ct. 2646. The reporter argued that without an implied testimonial privilege, the right “of the press to collect and disseminate news” would be undermined. Id. at 698, 92 S.Ct. 2646.
The Court rejected this claim, but before doing so it made the following general observation:
The heart of the claim is that the burden on news gathering resulting from compelling reporters to disclose confidential information outweighs any public interest in obtaining the information [by grand-jury subpoena].
We do not question the significance of free speech, press, or assembly to the country’s welfare. Nor is it suggested that news gathering does not qualify for First Amendment protection; without some protection for seeking out the news, freedom of the press could be eviscerated.
Id. at 681, 92 S.Ct. 2646. The Court declined to fashion a special journalists’ privilege for essentially two reasons. First, the Court relied on the general principle that “the First Amendment does not invalidate every incidental burdening of the press that may result from the enforcement of civil or criminal statutes of general applicability.” Id. at 682, 92 S.Ct. 2646. By this the Court meant that “otherwise valid laws serving substantial public interests may be enforced against the press as against others, despite the possible burden that may be imposed.” Id. at 682-83, 92 S.Ct. 2646 (emphasis added). Stated differently, the institutional press “`has no special immunity from the application of general laws.'” Id. at 683, 92 S.Ct. 2646 (quoting Associated Press v. NLRB, 301 U.S. 103, 132-33, 57 S.Ct. 650, 81 L.Ed. 953 (1937)). Second, the Court held that the public interest in detecting, punishing, and deterring crime was much stronger than the marginal increase in the flow of news about crime that a journalist’s testimonial privilege might provide. See id. at 700-01, 92 S.Ct. 2646.
We will return to the point about generally applicable laws in a moment. For now, it is enough to note that the Court did not use that principle to reject the reporter’s claim out of hand. Instead, the Court evaluated the State’s demand for the reporter’s testimony against the First Amendment interests at stake and held that the public’s interest in obtaining “`every man’s evidence'” justified the incidental burden on First Amendment rights. Id. at 687, 92 S.Ct. 2646 (quoting United States v. Bryan, 339 U.S. 323, 331, 70 S.Ct. 724, 94 L.Ed. 884 (1950)). The Court specifically reserved the question whether in a particular case, a subpoena for a reporter’s testimony might be a pretext for “[o]fficial harassment of the press,” a circumstance that “would pose wholly different issues for resolution under the First Amendment.” Id. at 707, 92 S.Ct. 2646.
The Supreme Court has not elaborated much on its abstract observation in Branzburg that “news gathering is not without its First Amendment protections.”Id.599*599 The Branzburg opinion itself suggests some caution in relying too heavily on the Court’s discussion of a First Amendment right to gather news and information. See id. at 703-04, 92 S.Ct. 2646 (noting that an expansive judicially administered right to gather information would “present practical and conceptual difficulties of a high order” and “embark the judiciary on a long and difficult journey” with an “uncertain destination”). Still, the Court’s observation that speech and press freedom includes, by implication, “some protection” for gathering information about the affairs of government is consistent with the historical understanding of the First Amendment.
To the founding generation, the liberties of speech and press were intimately connected with popular sovereignty and the right of the people to see, examine, and be informed of their government. For example, in one of the most famous eighteenth-century essays on the freedom of speech, Whig commentator Thomas Gordon explained:
“That Men ought to speak well of their Governours is true, while their Governours deserve to be well spoken of; but to do public Mischief, without hearing of it, is only the Prerogative and Felicity of Tyranny: A free People will be shewing that they are so, by their Freedom of Speech.
The Administration of Government, is nothing else but the Attendance of the Trustees of the People upon the Interest and Affairs of the People: And as it is the Part and Business of the People, for whose Sake alone all public Matters are, or ought to be transacted, to see whether they be well or ill transacted; so it is the Interest, and ought to be the Ambition, of all honest Magistrates, to have their Deeds openly examined, and publicly scann’d.”
Silence Dogood No. 8, THE NEW-ENGLAND COURANT (Boston), July 9, 1722, reprinted in 1 THE PAPERS OF BENJAMIN FRANKLIN 28 600*600 (Leonard W. Labaree et al. eds., 1959) (quoting Cato’s Letter No. 15). Other colonial writers “stressed the necessity and right of the people to be informed of their governors’ conduct so as to shape their own judgments on `Public Matters’ and be qualified to choose their representatives.” LEONARD W. LEVY, EMERGENCE OF A FREE PRESS 134 (2004). The Virginia General Assembly objected to the infamous Sedition Act of 1798 in part “because it is levelled against that right of freely examining public characters and measures, and of free communication among the people thereon.” Virginia Resolutions of 1798, reprinted in 17 THE PAPERS OF JAMES MADISON 189-90 (David B. Mattern et al. eds., 1991) (emphasis added). In a subsequent report, James Madison explained that the Sedition Act had “repressed that information and communication among the people, which is indispensable to the just exercise of their electoral rights.” Virginia Report of 1800, reprinted in 17 THE PAPERS OF JAMES MADISON 343 (emphasis added).
This understanding prevailed at the time the Fourteenth Amendment was ratified. In his famous 1868 treatise on constitutional law, Thomas Cooley explained that a foremost purpose of the Constitution’s guarantee of speech and press liberty is
to secure the right to a free discussion of public events and public measures, and to enable every citizen at any time to bring the government and any person in authority to the bar of public opinion by any just criticism upon their conduct in the exercise of the authority which the people have conferred upon them. To guard against repressive measures by the several departments of government, by means of which persons in power might secure themselves and their favorites from just scrutiny and condemnation, was the general purpose…. The evils to be guarded against were not the censorship of the press merely, but any action of the government by means of which it might prevent such free and general discussion of public matters as seems absolutely essential to prepare the people for an intelligent exercise of their rights as citizens.
THOMAS M. COOLEY, A TREATISE ON THE CONSTITUTIONAL LIMITATIONS 421-22 (1868) (emphasis added); see also Eugene Volokh, Freedom for the Press as an Industry, or for the Press as a Technology? From the Framing to Today, 160 U. PA. L.REV. 459 (2012) (collecting sources from the framing to the modern era); see generally AKHIL REED AMAR, THE BILL OF RIGHTS 20-26, 231-45 (1996) (explaining the structural role of speech and press rights based on founding-era and Reconstruction history).
In short, the eavesdropping statute restricts a medium of expression — the use of a common instrument of communication — and thus an integral step in the speech process. As applied here, it interferes with the gathering and dissemination of information about government officials performing their duties in public. Any way you look at it, the eavesdropping statute burdens speech and press rights and is subject to heightened First Amendment scrutiny.
The First Circuit agrees. In Glik v. Cunniffe, 655 F.3d 78, 79-81 (1st Cir.2011), the court considered a claim of qualified immunity in a damages suit brought by a bystander who was arrested for using his cell phone to record police officers making an arrest on the Boston Common. The bystander alleged that the officers violated his rights under the First Amendment; the First Circuit rejected the officers’ defense of qualified immunity. Id. The court framed the issue this way: “[I]s there is a constitutionally protected right to videotape 601*601 police carrying out their duties in public?” Id. at 82. The court held that “[b]asic First Amendment principles, along with case law from this and other circuits, answer that question unambiguously in the affirmative.”Id. The court went on to conclude that the right to record the police was clearly established, resting its conclusion primarily on the Supreme Court’s observations about the right to gather and disseminate information about government: “Gathering information about government officials in a form that can readily be disseminated to others serves a cardinal First Amendment interest in protecting and promoting `the free discussion of governmental affairs.'” Id. (quoting Mills v. Alabama, 384 U.S. 214, 218, 86 S.Ct. 1434, 16 L.Ed.2d 484 (1966)).
It’s important to note that the legal sanction at issue in Branzburg — enforcement of a grand-jury subpoena — was not aimed at the exercise of speech or press rights as such. Likewise Cohen involved a claim by two newspapers for a special First Amendment immunity from damages liability for breach of a promise to keep a source’s identity confidential. As in Branzburg, the Court rejected the claim of special press immunity and upheld the damages award against the newspapers. The Court observed that the doctrine of promissory estoppel is generally applicable and the “enforcement of such general laws 602*602 against the press is not subject to stricter scrutiny than would be applied to enforcement against other persons or organizations.” Cohen, 501 U.S. at 670, 111 S.Ct. 2513. Branzburg and Cohen thus stand for the unremarkable proposition that the press does not enjoy a special constitutional exemption from generally applicable laws.
Similarly, in Arcara the Court upheld a court order shutting down an adult bookstore pursuant to a state nuisance statute authorizing the closure of premises where prostitution is ongoing. The Court held that “the First Amendment is not implicated by the enforcement of a public health regulation of general application against the physical premises in which respondents happen to sell books.” 478 U.S. at 707, 106 S.Ct. 3172. The Court noted, however, that it would be a different case if “the `nonspeech’ which drew sanction was intimately related to expressive conduct protected under the First Amendment.” Id. at 706 n. 3, 106 S.Ct. 3172. Instead, the “nonspeech” that was subject to general public-health regulation in Arcara — operating an establishment where prostitution is carried on — “bears absolutely no connection to any expressive activity,” notwithstanding that the establishment is also a bookstore. Id. at 707 n. 3, 106 S.Ct. 3172.
These cases illustrate the point that “enforcement of a generally applicable law may or may not be subject to heightened scrutiny under the First Amendment.” Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 640, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994); see also Food Lion, Inc. v. Capital Cities/ABC, Inc., 194 F.3d 505, 521-22 (4th Cir.1999). When the expressive element of an expressive activity triggers the application of a general law, First Amendment interests are in play. On the other hand, when “speech” and “nonspeech” elements are combined, and the “nonspeech” element (e.g., prostitution) triggers the legal sanction, the incidental effect on speech rights will not normally raise First Amendment concerns. See Eugene Volokh, Speech as Conduct, Generally Applicable Laws, Illegal Courses of Conduct, “Situation-Altering Utterances,” and the Uncharted Zones, 90 CORNELL L.REV. 1277, 1278-93 (2005).
The Illinois eavesdropping statute may or may not be a law of general applicability; as we have noted, it contains a number of exemptions. Either way, it should be clear by now that its effect on First Amendment interests is far from incidental. To the contrary, the statute specifically targets a communication technology; the use of an audio recorder — a medium of expression — triggers criminal liability. The law’s legal sanction is directly leveled against the expressive element of an expressive 603*603 activity. As such, the statute burdens First Amendment rights directly, not incidentally.
Accordingly, regulatory measures “that suppress, disadvantage, or impose differential burdens upon speech because of its content” are subject to strict scrutiny. Turner, 512 U.S. at 642, 114 S.Ct. 2445. “In contrast, regulations that are unrelated to the content of speech are subject to an intermediate level of scrutiny… because in most cases they pose a less substantial risk of excising certain ideas or viewpoints from the public dialogue.” Id. (citation omitted). Although the line between content-neutral and content-based laws is sometimes hard to draw, “the `principal inquiry in determining content neutrality… is whether the government has adopted a regulation of speech because of [agreement or] disagreement with the message it conveys.'” Id. (alterations in original) (quoting Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989)). Stated differently, “laws that by their terms distinguish favored speech from disfavored speech on the basis of the ideas or views expressed are content based.” Id. at 643, 114 S.Ct. 2445.
The eavesdropping statute is content neutral on its face. It does not target any particular message, idea, or subject matter. The ACLU argues that the eavesdropping statute should be treated as a content-based restriction because its enforcement requires an examination of the audio recording to determine whether a violation has occurred. This argument misunderstands the First Amendment requirement of content neutrality. A law is not considered “content based” simply because a court must “look at the content of an oral or written statement in order to determine whether a rule of law applies.” Hill v. Colorado, 530 U.S. 703, 721, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000).
The ACLU also argues that the eavesdropping statute discriminates among speakers by allowing “uniformed on-duty police at their discretion and without court approval to make virtually any audio recording of their conversations with civilians, while forbidding civilians from making virtually any audio recording of those same conversations.” Here the ACLU relies on the well-established principle that
the Government may commit a constitutional wrong when by law it identifies certain preferred speakers. By taking the right to speak from some and giving it to others, the Government deprives the disadvantaged person or class of the 604*604 right to use speech to strive to establish worth, standing, and respect for the speaker’s voice.
Citizens United, 130 S.Ct. at 899. But this kind of content-based discrimination arises when the government discriminates among private speakers, not when it facilitates its own speech. For example, a governmental agency that records its own meetings but bars members of the public from doing so has not preferred one class of private speakers over another, although other First Amendment concerns might arise. Here, the exemption for law-enforcement officers is constitutionally insignificant.
The exemption for the media may be another matter, however. As we have noted, the eavesdropping statute exempts live broadcasts or recordings made for later broadcast “by radio, television, or otherwise” of “any function where the public is in attendance and the conversations are overheard incidental to the main purpose for which such broadcasts are then being made.” 720 ILL. COMP. STAT. 5/14-3(c). This exemption appears to be aimed at media coverage of public events in which conversations are captured without consent as an incidental consequence of broadcasting the event itself, or recording it for later broadcast. This exemption for broadcasting may amount to discrimination among private speakers, though perhaps it’s broad enough to cover recordings made by individuals as well as the institutional press. See Turner, 512 U.S. at 659, 114 S.Ct. 2445 (“Regulations that discriminate among media, or among different speakers within a single medium, often present serious First Amendment concerns.”). We need not decide the effect of this exemption here. The ACLU does not mention it, probably because the recordings at issue in this case are not limited to those that are “incidental” to recording a public event.
In the end, we think it unlikely that strict scrutiny will apply. But there is no need to resolve the matter here. The ACLU’s challenge is likely to succeed under any of the less rigorous standards of scrutiny that apply to restrictions on speech. At the very least, the State’s Attorney will have to justify this application of the eavesdropping statute under some form of intermediate scrutiny.
3. The Eavesdropping Statute Likely Fails Intermediate Scrutiny
Though stated in different terms, these intermediate-scrutiny standards share certain essential elements in common. All require (1) content neutrality (content-based regulations are presumptively invalid); (2) an important public-interest justification for the challenged regulation; and (3) a reasonably close fit between the law’s means and its ends. This last requirement means that the burden on First Amendment rights must not be greater than necessary to further the important governmental interest at stake. See Fox, 492 U.S. at 480, 109 S.Ct. 3028; Ward, 491 U.S. at 799, 109 S.Ct. 2746; see also O’Brien, 391 U.S. at 376-77, 88 S.Ct. 1673 (stating an alternative formulation of intermediate scrutiny).
As we have explained, the eavesdropping statute probably satisfies the requirement of content neutrality. As applied here, however, it very likely fails the rest of the test. The State’s Attorney defends the law as necessary to protect conversational privacy. This is easily an important governmental interest. Bartnicki v. Vopper, 532 U.S. 514, 532, 121 S.Ct. 1753, 149 L.Ed.2d 787 (2001) (“Privacy of communication is an important interest….”). Indeed, the protection of personal conversational privacy serves First Amendment interests because “fear of public disclosure of private conversations might well have a chilling effect on private speech.” Id. at 533, 121 S.Ct. 1753.
Simply put, these privacy interests are not at issue here. The ACLU wants to openly audio record police officers performing their duties in public places and speaking at a volume audible to bystanders. 606*606 Communications of this sort lack any “reasonable expectation of privacy” for purposes of the Fourth Amendment. See Katz, 389 U.S. at 351, 88 S.Ct. 507 (“What a person knowingly exposes to the public… is not a subject of Fourth Amendment protection.”); id. at 361, 88 S.Ct. 507 (Harlan, J., concurring) (“[C]onversations in the open would not be protected against being overheard, for the expectation of privacy under the circumstances would be unreasonable.”). Dissemination of these communications would not be actionable in tort. See RESTATEMENT (SECOND) OF TORTS §§ 652B, 652D (explaining the elements of the different invasion-of-privacy torts).
Of course, the First Amendment does not prevent the Illinois General Assembly from enacting greater protection for conversational privacy than the common-law tort remedy provides. Nor is the legislature limited to using the Fourth Amendment “reasonable expectation of privacy” doctrine as a benchmark. But by legislating this broadly — by making it a crime to audio record any conversation, even those that are not in fact private — the State has severed the link between the eavesdropping statute’s means and its end. Rather than attempting to tailor the statutory prohibition to the important goal of protecting personal privacy, Illinois has banned nearly all audio recording without consent of the parties — including audio recording that implicates no privacy interests at all.
The ACLU’s proposed audio recording will be otherwise lawful — that is, not disruptive of public order or safety, and carried out by people who have a legal right to be in a particular public location and to watch and listen to what is going on around them. The State’s Attorney concedes that the ACLU’s observers may lawfully watch and listen to the officers’ public communications, take still photographs, make video recordings with microphones switched off, or take shorthand notes and transcribe the conversations or otherwise reconstruct the dialogue later. The ACLU may post all of this information on the internet or forward it to news outlets, all without violating the Illinois eavesdropping statute. The State’s Attorney has not identified a substantial governmental interest that is served by banning audio recording of these same conversations. We acknowledge the difference in accuracy and immediacy that an audio recording provides as compared to notes or even silent videos or transcripts. But in terms of the privacy interests at stake, the difference is not sufficient to justify criminalizing this particular method of preserving and publishing the public communications of these public officials.
The State’s Attorney insists that the broad reach of the statute is necessary to “remove incentives for interception of private conversations and minimize the harm to persons whose conversations have been illegally intercepted.” At the risk of repeating ourselves, this case has nothing to do with private conversations or surreptitious interceptions. We accept Judge Posner’s point that “private talk in public places is common.” Dissent at 613. But the communications in question here do not fall into this category; they are not conversations that carry privacy expectations even though uttered in public places. 607*607 Moreover, the ACLU plans to record openly, thus giving the police and others notice that they are being recorded.
The State’s Attorney also argues that the statute endeavors to “[1.] encourage that civilians candidly speak with law enforcement, including those conversations conditioned on confidentiality; [2.] limit opportunities of the general public from gaining access to matters of national and local security; and [3.] reduce the likelihood of provoking persons during officers’ mercurial encounters.” These interests are not threatened here. Anyone who wishes to speak to police officers in confidence can do so; private police-civilian communications are outside the scope of this case. Police discussions about matters of national and local security do not take place in public where bystanders are within earshot; the State’s Attorney has made no effort to connect this law-enforcement concern to the communications at issue here. It goes without saying that the police may take all reasonable steps to maintain safety and control, secure crime scenes and accident sites, and protect the integrity and confidentiality of investigations. While an officer surely cannot issue a “move on” order to a person because he is recording, the police may order bystanders to disperse for reasons related to public safety and order and other legitimate law-enforcement needs. See, e.g., Colten v. Kentucky, 407 U.S. 104, 109, 92 S.Ct. 1953, 32 L.Ed.2d 584 (1972) (rejecting a First Amendment right to congregate on the side of a highway and “observe the issuance of a traffic ticket”). Nothing we have said here immunizes behavior that obstructs or interferes with effective law enforcement or the protection of public safety.
Because the eavesdropping statute is not closely tailored to the government’s interest in protecting conversational privacy, we need not decide whether it leaves open adequate alternative channels for this kind of speech (assuming that this factor — an aspect of speech-forum analysis — even applies in this context). See Saieg v. City of Dearborn, 641 F.3d 727, 740 (6th Cir.2011) (“The requirements for a time, place, and manner restriction are conjunctive.” (citing Watchtower Bible & Tract Soc’y v. Village of Stratton, 536 U.S. 150, 168-69, 122 S.Ct. 2080, 153 L.Ed.2d 205 (2002))). We note, however, that audio and audiovisual recording are uniquely reliable and powerful methods of preserving and disseminating news and information about events that occur in public. Their self-authenticating character makes it highly unlikely that other methods could be considered reasonably adequate substitutes.
Before closing, a brief response to a couple of points in the dissent. Our decision will not, as Judge Posner suggests, “cast a shadow over the electronic privacy statutes of other states.” Dissent at 609. As we have explained, the Illinois statute is a national outlier. See Alderman, Police Privacy in the iPhone Era?, supra note 4, at 533-45 (collecting state statutes). Most state electronic privacy statutes apply only to private conversations; that is, they contain (or are construed to include) an expectation-of-privacy requirement that limits their scope to conversations that carry a reasonable expectation of privacy. Others apply only to wiretapping, and some ban only surreptitious 608*608 recording. Id. Indeed, the California statute discussed in the dissent is explicitly limited to “confidential communications,” a term specifically defined to exclude the kind of communications at issue here. If the Illinois statute contained a similar limitation, the link to the State’s privacy justification would be much stronger.
The dissent also takes us to task for giving insufficient consideration to the privacy interests of civilians who communicate with the police and for failing to grasp the extent to which people “say things in public that they don’t expect others around them to be listening to, let alone recording for later broadcasting.” Dissent at 613. To the contrary, we have acknowledged the importance of conversational privacy and heeded the basic distinction drawn in Katz that some conversations in public places implicate privacy and others do not. See Katz, 389 U.S. at 351, 88 S.Ct. 507. Again, the privacy interests that may justify banning audio recording are not limited to those that the Fourth Amendment secures against governmental intrusion. But the Illinois eavesdropping statute obliterates the distinction between private and nonprivate by criminalizing all nonconsensual audio recording regardless of whether the communication is private in any sense. 720 ILL. COMP. STAT. 5/14-1(d). If protecting privacy is the justification for this law, then the law must be more closely tailored to serve that interest in order to avoid trampling on speech and press rights.
For these reasons, we conclude that the ACLU has a strong likelihood of success on the merits of its First Amendment claim. The Illinois eavesdropping statute restricts an expressive medium used for the preservation and dissemination of information and ideas. On the factual premises of this case, the statute does not serve the important governmental interest of protecting conversational privacy; applying the statute in the circumstances alleged here is likely unconstitutional.
Accordingly, we reverse and remand with the following instructions: The district court shall reopen the case and allow the amended complaint; enter a preliminary injunction enjoining the State’s Attorney from applying the Illinois eavesdropping statute against the ACLU and its employees or agents who openly audio record the audible communications of law-enforcement officers (or others whose communications are incidentally captured) when the officers are engaged in their official duties in public places; and conduct such further proceedings as are consistent with this opinion.
REVERSED AND REMANDED WITH INSTRUCTIONS.
POSNER, Circuit Judge, dissenting.
The American Civil Liberties Union appeals from the denial of a preliminary injunction in its suit against the Cook County State’s Attorney (that is, the “D.A.” of Cook County, Illinois) to invalidate the Illinois Eavesdropping Act as a violation of freedom of speech (more precisely, freedom to publish or otherwise disseminate other people’s speech). I would affirm the district court.
The Act criminalizes “knowingly and intentionally us[ing] an eavesdropping device for the purpose of hearing or recording all or any part of any conversation” without “the consent of all of the parties to such conversation.” 720 ILCS 5/14-2(a)(1). My colleagues have decided to reverse, and to order the entry of a preliminary injunction against enforcement of the Eavesdropping Act. But why a preliminary injunction? The opinion gives no indication of what argument or evidence presented on remand might allow the district court again to uphold the Act.
609*609 The invalidation of a statute on constitutional grounds should be a rare and solemn judicial act, done with reluctance under compulsion of clear binding precedent or clear constitutional language or — in the absence of those traditional sources of guidance — compelling evidence, or an overwhelming gut feeling, that the statute has intolerable consequences. The law invalidated today is not an outdated one left on the books by legislative inertia, like many of the laws invalidated by the Supreme Court in famous cases such as Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965). In its present form it dates only from 1994. It is stricter than provisions found in the laws governing electronic eavesdropping in most other states because it requires both parties to consent to a recording of their conversation. Maybe it’s too strict in forbidding nonconsensual recording even when done in defense of self or others, as when the participant in a conversation records it in order to create credible evidence of blackmail, threats, other forms of extortion, or other unlawful activity, as in Glik v. Cunniffe, 655 F.3d 78 (1st Cir.2011). But that feature of the statute is irrelevant. The ACLU insists on, and the majority opinion endorses, the right to record conversations to which police officers are parties even if no party consents to the recording, as long as the officers are performing public duties (as distinct from talking with one another on a private topic) in a public place and speaking loudly enough to be heard by a person who doesn’t have special equipment for amplifying sound — in other words, a person standing nearby.
Our ruling casts a shadow over electronic privacy statutes of other states as well, to the extent that they can be interpreted to require the consent of at least one party to a conversation to record it even though the conversation takes place in a public place, if the conversation could nevertheless reasonably be thought private by the parties. The statutes of several states are so open-ended that they could easily be found invalid under the approach taken in the majority opinion. See Alaska Stat. Ann. § 42.20.310; Ark.Code Ann. § 5-60-120; Cal.Penal Code § 632(c); Mich. Comp. Laws Ann. § 750.539c; N.D. Cent. Code Ann. § 12.1-15-02. The California statute is illustrative. It states that “the term `confidential communication’ includes any communication carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties thereto, but excludes a communication made in a public gathering or in any legislative, judicial, executive or administrative proceeding open to the public, or in any other circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded.” The words are clear, the meaning is clear, but the application is unclear. Should a conversation in a public place, but intended to be private, be thought a “communication that any party desires to be confined to the parties”? It is both intended to be private and remote from a communication made in a “public gathering,” a term that from its placement connotes a public meeting of some sort. But what of the exclusion of private communications that the parties “may reasonably expect… may be overheard or recorded”? That fogs the issue of which private communications are protected. To read the statute literally would exclude all private communications, for any private communication can be overheard and recorded, even if it is a conversation in a closed room.
A number of state privacy statutes tee off from the statement in Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), that “what a person 610*610 knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.” See, e.g., Fla. Stat. § 934.02(2); Ohio Rev.Code Ann. § 2933.51(B); Texas Penal Code § 16.02(b)(1), incorporating Tex.Code Crim. P. art. 18.20 § 1(1); cf. 18 U.S.C. § 2510(2). The police in Katz had recorded the defendant’s phone call, made in a public telephone booth, by secretly fastening a microphone to the booth, and the Court held that the recording violated the Fourth Amendment because the police had no warrant. Suppose the telephone booth had had no door, or that though it had a door the booth was not soundproof and someone standing five feet away could hear the conversation. Or suppose a police officer is talking in a low voice to a crime victim on a crowded sidewalk; there are people within earshot but the conversants reasonably assume that no one is listening, though they notice someone looking at his cell phone and the recorder in the cell phone might be turned on. We can’t predict the impact of today’s decision on the laws of most other states.
Judges asked to affirm novel “interpretations” of the First Amendment should be mindful that the constitutional right of free speech, as construed nowadays, is nowhere to be found in the Constitution. The relevant provision of the First Amendment merely forbids Congress to abridge free speech, which as understood in the eighteenth century meant freedom only from censorship (that is, suppressing speech, rather than just punishing the speaker after the fact). A speaker could be prosecuted for seditious libel, for blasphemy, and for much other reprobated speech besides, but in a prosecution he would at least have the protection of trial by jury, which he would not have if hauled before a censorship board; and his speech or writing would not have been suppressed, which is what censorship boards do. Protection against censorship was the only protection that the amendment was understood to create. Patterson v. Colorado, 205 U.S. 454, 461-62, 27 S.Ct. 556, 51 L.Ed. 879 (1907) (Holmes, J.); Blue Canary Corp. v. City of Milwaukee, 251 F.3d 1121, 1123 (7th Cir.2001); Akhil Reed Amar, The Bill of Rights: Creation and Reconstruction 23-24 (1998); cf. 4 William Blackstone, Commentaries on the Laws of England 150-53 (1769).
The limitation of the amendment to Congress, and thus to federal restrictions on 611*611 free speech (the First Amendment does not apply to state action), and to censorship is the original understanding. Judges have strayed so far from it that further departures should be undertaken with caution. Even today, with the right to free speech expanding in all directions, it remains a partial, a qualified, right. To make it complete would render unconstitutional defamation law, copyright law, trade secret law, and trademark law; tort liability for wiretapping, other electronic eavesdropping, and publicly depicting a person in a “false light”; laws criminalizing the publication of military secrets and the dissemination of child pornography; conspiracy law (thus including much of antitrust law); prohibitions of criminal solicitation, threats and fighting words, securities fraud, and false advertising of quack medical remedies; the regulation of marches, parades, and other demonstrations whatever their objective; limitations on free speech in prisons; laws limiting the televising of judicial proceedings; what little is left of permitted regulation of campaign expenditures; public school disciplining of inflammatory or disruptive student speech; the attorney-client, spousal, and physician-patient privileges in cases in which an attorney or spouse or physician would like to speak but is forbidden by the privilege to do so; laws making medical records confidential; and prohibitions against the public disclosure of jurors’ names in cases in which jurors might be harassed. All these legal restrictions of free speech are permitted (some because they may actually increase the amount of speech, a point I’ll come back to). The question in this case is whether a state, to protect both privacy and public safety, should be allowed in addition to forbid the recording of conversations between police officers and members of the public in a public place unless both parties to the conversation consent to being recorded for posterity.
A person who is talking with a police officer on duty may be a suspect whom the officer wants to question; he may be a bystander whom the police are shooing away from the scene of a crime or an accident; he may be an injured person seeking help; he may be a crime victim seeking police intervention; he may be asking for directions; he may be arguing with a police officer over a parking ticket; he may be reporting a traffic accident. In many of these encounters the person conversing with the police officer may be very averse to the conversation’s being broadcast on the evening news or blogged throughout the world. In some instances such publicity would violate the tort right of privacy, a conventional exception to freedom of speech as I have noted. Restatement (Second) of Torts §§ 652A, 652D (1977) (“unreasonable publicity given to [another person’s] private life”); Wolfe v. Schaefer, 619 F.3d 782, 784 (7th Cir.2010); Reuber v. Food Chemical News, Inc., 925 F.2d 703, 718-19 (4th Cir.1991) (en banc) (“publiciz[ing] private facts in a highly offensive manner about an issue not of public concern”); Miller v. Motorola, Inc., 202 Ill.App.3d 976, 148 Ill.Dec. 303, 560 N.E.2d 900 (1990). This body of law is endangered by today’s ruling.
Privacy is a social value. And so, of course, is public safety. The constitutional right that the majority creates is likely to impair the ability of police both to extract information relevant to police duties and to communicate effectively with persons whom they speak with in the line of duty. An officer may freeze if he sees a journalist recording a conversation between the officer and a crime suspect, crime victim, or dissatisfied member of the public. He may be concerned when any stranger moves into earshot, or when he sees a recording device (even a cell phone, for modern cell phones are digital audio recorders) 612*612 in the stranger’s hand. To distract police during tense encounters with citizens endangers public safety and undermines effective law enforcement.
That the Eavesdropping Act, despite its name, does not punish the bystander who overhears a conversation without recording it does not have the significance that the majority opinion gives it. There is an important difference, well articulated in Justice Harlan’s dissent in United States v. White, 401 U.S. 745, 787-89, 91 S.Ct. 1122, 28 L.Ed.2d 453 (1971) (footnotes omitted), between human and mechanical eavesdropping:
The impact of the practice of third-party bugging, must, I think, be considered such as to undermine that confidence and sense of security in dealing with one another that is characteristic of individual relationships between citizens in a free society. It goes beyond the impact on privacy occasioned by the ordinary type of “informer” investigation…. The argument of the plurality opinion, to the effect that it is irrelevant whether secrets are revealed by the mere tattletale or the transistor, ignores the differences occasioned by third-party monitoring and recording which insures full and accurate disclosure of all that is said, free of the possibility of error and oversight that inheres in human reporting.
Authority is hardly required to support the proposition that words would be measured a good deal more carefully and communication inhibited if one suspected his conversations were being transmitted and transcribed. Were third-party bugging a prevalent practice, it might well smother that spontaneity — reflected in frivolous, impetuous, sacrilegious, and defiant discourse — that liberates daily life. Much off-hand exchange is easily forgotten and one may count on the obscurity of his remarks, protected by the very fact of a limited audience, and the likelihood that the listener will either overlook or forget what is said, as well as the listener’s inability to reformulate a conversation without having to contend with a documented record. All these values are sacrificed by a rule of law that permits official monitoring of private discourse limited only by the need to locate a willing assistant.
The distinction that Justice Harlan drew between an overheard private conversation recalled from memory and one that is recorded is something everyone feels — and feels more acutely in the electronic age than 41 years ago. Walter Kirn, “Little Brother Is Watching,” New York Times Magazine (Oct. 17, 2010); William Saletan, “Bugged Naked: Webcams, Sex, and the Death of Privacy,” Slate (Oct. 1, 2010); William Safire, “To Stop the Eavesdrop,” New York Times (Dec. 20, 1999). Americans face new challenges to privacy because of the amount of personal information 613*613 stored and publicly accessible online and the ubiquity of recording devices. Lizette Alvarez, “Spring Break Gets Tamer as World Watches Online,” New York Times (March 16, 2012); Jeffrey Rosen, “The Web Means the End of Forgetting,” New York Times (July 25, 2010); Jonathan Zittrain, “Privacy 2.0,” 2008 U. Chi. Legal Forum 65, 81-91. Lacking relevant expertise, lacking evidence, forced back on intuition, judges should hesitate to invalidate legislative attempts to solve these problems.
Police may have no right to privacy in carrying out official duties in public. But the civilians they interact with do. The majority opinion “acknowledge[s] the difference in accuracy and immediacy that an audio recording provides as compared to notes or even silent videos or transcripts” but says that “in terms of the privacy interests at stake, the difference is not sufficient to justify criminalizing this particular method of preserving and publishing the public communications of these public officials” (emphasis in original). The assertion lacks a supporting argument, and by describing the recording as a “method of preserving and publishing the public communications of these public officials” neglects the fact that the recording will publish and preserve what the civilians with whom the police are conversing say, not just what the police say. The further statement that these “are not conversations that carry privacy expectations even though uttered in public places” implies that anything said outdoors is ipso facto public. Yet people often say things in public that they don’t expect others around them to be listening to, let alone recording for later broadcasting, and we are given no reason to think that this is never the case when someone complains to a police officer, or otherwise speaks with one, “in public” in the sense of being in a place in which there are other people about.
Suppose a police detective meets an informant in a park and they sit down on a park bench to talk. A crime reporter sidles up, sits down next to them, takes out his iPhone, and turns on the recorder. The detective and the informant move to the next park bench to continue their conversation in private. The reporter follows them. Is this what the Constitution privileges?
It is small consolation to be told by the majority that “the ACLU plans to record openly, thus giving the police and others notice that they are being recorded” (emphasis in original). All the ACLU means is that it won’t try to hide its recorder from the conversants whom it wants to record, though since the typical recorder nowadays is a cell phone it will be hidden in plain view. A person who doesn’t want his conversations to be recorded will have to keep a sharp eye out for anyone nearby holding a cell phone, which in many urban settings is almost everyone. The ubiquity of recording devices will increase security concerns by distracting the police.
There is more on the state’s side of this case than privacy of communications and the effectiveness of law enforcement — and the more is the same First Amendment interest that the ACLU says it wants to promote. The majority opinion concedes that “conversational privacy” “serves First Amendment interests,” but thinks there can be no conversational privacy when the conversation takes place in a public place; it says that “this case has nothing to do with private conversations.” But private talk in public places is common, indeed ubiquitous, because most people spend a lot of their time in public places; because they rely on their anonymity and on the limited memory of others to minimize the risk of publication; because public places are (paradoxically) often more private than 614*614 private places (imagine if detectives could meet with their informants only in police stations); and because eavesdropping on strangers is actually rather uncommon because it is so difficult in most cases to understand a conversation between strangers. “Anyone who’s overheard conversations on the street or in a restaurant knows that conversations between strangers are often unintelligible. There is the public language we employ when talking to strangers and the elliptical private language that we use when talking to people whom we know. Strangers need an interpreter….” United States v. Curescu, 674 F.3d 735, 740 (7th Cir.2012).
I disagree with the majority that “anyone who wishes to speak to police officers in confidence can do so,” and “police discussions about matters of national and local security do not take place in public where bystanders are within earshot.” Forget national security; the people who most need police assistance and who most want their conversations kept private are often the people least able to delay their conversation until they reach a private place. If a person has been shot or raped or mugged or badly injured in a car accident or has witnessed any of these things happening to someone else, and seeks out a police officer for aid, what sense would it make to tell him he’s welcome to trot off to the nearest police station for a cozy private conversation, but that otherwise the First Amendment gives passersby the right to memorialize and publish (on Facebook, on Twitter, on YouTube, on a blog) his agonized plea for help? And as in our informant example, many of the persons whom police want to talk to do not want to be seen visiting police stations.
Accuracy is a social value, and a recording of a conversation provides a more accurate record of the conversation than the recollection of the conversants: more accurate, and also more truthful, since a party to a conversation, including a police officer, may lie about what he heard or said. But on the other side of the balance are the inhibiting effect of nonconsensual recording of conversations on the number and candor of conversations (and hence on values that the First Amendment protects); the baleful effect on privacy; the negative effect on law enforcement; and the litigation likely to be engendered by police officers’ shooing away intruders on their private conversations with citizens. These are significant social costs, and the majority opinion offers no basis in fact or history, in theory or practice, in constitutional text or judicial precedent, for weighting them less heavily than the social value of recorded eavesdropping.
 The State’s Attorney argues that a preliminary injunction is inappropriate here because it would grant the ACLU affirmative relief rather than preserving the status quo. The Supreme Court has long since foreclosed this argument. See Ashcroft v. ACLU, 542 U.S. 656, 670-71, 124 S.Ct. 2783, 159 L.Ed.2d 690 (2004) (finding a preenforcement preliminary injunction appropriate to protect First Amendment rights because “speakers may self-censor rather than risk the perils of trial”); Doran v. Salem Inn, Inc., 422 U.S. 922, 931, 95 S.Ct. 2561, 45 L.Ed.2d 648 (1975) (“[P]rior to final judgment there is no established declaratory remedy comparable to a preliminary injunction; unless preliminary relief is available upon a proper showing, plaintiffs in some situations may suffer unnecessary and substantial irreparable harm.”).
 The Cook County prosecutions are People v. Drew, No. 10-cr-46 (Cook Cnty., Ill., Cir.Ct.), People v. Moore, No. 10-cr-15709 (Cook Cnty., Ill., Cir.Ct.), and People v. Tate, No. 11-cr-9515 (Cook Cnty., Ill., Cir.Ct.). We note that the presiding judge in People v. Drew recently held that the eavesdropping statute violates substantive due process and dismissed the case. People v. Drew, No. 10-cr-46 (Cook Cnty., Ill., Cir.Ct. Mar. 7, 2012). The ACLU identified the following additional prosecutions under the eavesdropping statute for civilian audio recording of law-enforcement officers: People v. Thompson, No. 04-cf-1609 (6th Cir., Champaign Cnty., Ill.); People v. Wight, No. 05-cf-2454 (17th Cir., Winnebago Cnty., Ill.); People v. Babarskas, No. 06-cf-537 (12th Cir., Will Cnty., Ill.); People v. Allison, No. 09-cf-50 (2d Cir., Crawford Cnty., Ill.); People v. Parteet, No. 10-cf-49 (16th Cir., DeKalb Cnty., Ill.); People v. Biddle, No. 10-cf-421 (16th Cir., Kane Cnty., Ill.); People v. Fitzpatrick, No. 10-cf-397 (5th Cir., Vermillion Cnty., Ill.); People v. Lee, No. 08-cf-1791 (12th Cir., Will Cnty., Ill.); and People v. Gordon, No. 10-cf-341 (11th Cir., Livingston Cnty., Ill.).
 Although the State’s Attorney does not raise it, a possible ground for doubting standing might be that openly made recordings could fall within the implied-consent doctrine. See People v. Ceja, 204 Ill.2d 332, 273 Ill.Dec. 796, 789 N.E.2d 1228, 1241 (2003) (Consent may be “inferred from the surrounding circumstances,” including facts showing that “a party knows of … encroachments on the routine expectation that conversations are private.”). Implied consent is a factual issue for trial in a prosecution under the eavesdropping statute. That the ACLU and its employees may face prosecution is injury enough for preenforcement standing, even though they might be able to defend based on implied consent. Moreover, the implied-consent doctrine, and more particularly its potential application in particular cases, is sufficiently ambiguous for the ACLU to have a credible fear of criminal liability. See, e.g., Williams v. Poulos, 11 F.3d 271, 281 (1st Cir.1993) (“Implied consent is not … constructive consent. Rather, implied consent is consent in fact which is inferred from surrounding circumstances indicating that the party knowingly agreed to the surveillance.” (citations and internal quotation marks omitted)); see also Schirmer v. Nagode, 621 F.3d 581, 586 (7th Cir.2010) (“[W]hen an ambiguous statute arguably prohibits certain protected speech, a reasonable fear of prosecution can provide standing for a First Amendment challenge.”).
 As best we can tell, the Illinois statute is the broadest of its kind; no other wiretapping or eavesdropping statute prohibits the open recording of police officers lacking any expectation of privacy. See 18 U.S.C. § 2510(2); Jesse Harlan Alderman, Police Privacy in the iPhone Era?, 9 FIRST AMEND. L.REV. 487, 533-45 (2011) (collecting state statutes); cf. OR. REV.STAT. § 165.540(1)(c), (6)(a) (exempting “unconcealed” recordings at public events but otherwise requiring that “all participants in the conversation are specifically informed that their conversation is being obtained”).
 For more on how the First Amendment protects the use of communications technology, see Eugene Volokh, Freedom for the Press as an Industry, or for the Press as a Technology? From the Framing to Today, 160 U. PA. L.REV. 459 (2012); Seth F. Kreimer, Pervasive Image Capture and the First Amendment: Memory, Discourse, and the Right to Record, 159 U. PA. L.REV. 335 (2011); Diane Leenheer Zimmerman, I Spy: The Newsgatherer Under Cover, 33 U. RICH. L.REV. 1185 (2000); Rodney A. Smolla, Privacy and the First Amendment Right to Gather News, 67 GEO. WASH. L.REV. 1097 (1999).
This is not, strictly speaking, a claim about the qualified First Amendment right of access to governmental proceedings. Access is assumed here; the ACLU claims a right to audio record events and communications that take place in traditional public fora like streets, sidewalks, plazas, parks, and other open public spaces.
See, e.g., BERNARD BAILYN, THE IDEOLOGICAL ORIGINS OF THE AMERICAN REVOLUTION 36 (1967) (observing that Cato’s Letters, which included Gordon’s essay on the freedom of speech, were “republished entire or in part again and again … and referred to repeatedly in the pamphlet literature, … rank[ing] with the treatises of Locke as the most authoritative statement of the nature of political liberty and above Locke as an exposition of the social sources of the threats it faced”); Donald S. Lutz, The Relative Influence of European Writers on Late Eighteenth-Century American Political Thought, 78 AM. POL. SCL. REV. 189, 194 (1984).
 The claimant in Glik recorded the arrest because he thought the police were using excessive force. But the court’s First Amendment ruling was not limited to “defensive” recording to preserve evidence of wrongdoing, as our dissenting colleague suggests. Dissent at 609.
 On the other hand, the Third Circuit resolved a similar qualified-immunity question differently in Kelly v. Borough of Carlisle, 622 F.3d 248 (3d Cir.2010), which involved a First Amendment claim by a plaintiff who was arrested under the Pennsylvania wiretapping statute for recording a police officer during a traffic stop. Although the Third Circuit found some support for a First Amendment right to record police officers performing their duties in public in some situations, id. at 260-62, the court held that “there [i]s insufficient case law establishing a right to videotape police officers during a traffic stop to put a reasonably competent officer on `fair notice’ that seizing a camera or arresting an individual for videotaping police during the stop would violate the First Amendment,” id. at 262.
The First Circuit’s decision in Glik aligns with authority from the Eleventh Circuit and with the weight of district-court decisions. See Smith v. City of Cumming, 212 F.3d 1332, 1333 (11th Cir.2000) (summarily recognizing “a First Amendment right, subject to reasonable time, manner and place restrictions, to photograph or videotape police conduct”); see also Seth F. Kreimer, Pervasive Image Capture and the First Amendment: Memory, Discourse, and the Right to Record, 159 U. PA. L.REV. 335, 368 n. 113 (2011) (collecting district-court cases).
This case does not, of course, raise a question of qualified immunity; we do not need to take sides in the circuit split in order to decide this case.
 The ACLU also suggests that the statute’s enhanced penalty for recording a police officer, prosecutor, or judge amounts to content-based discrimination. This argument is off point. The ACLU is not seeking an injunction against the penalty enhancement.
 Nothing we have said here endangers the tort law of privacy, as the dissent suggests. Dissent at 611-12. A tortious invasion of privacy occurs when a person “gives publicity to a matter concerning the private life of another … if the matter publicized is of a kind that (a) would be highly offensive to a reasonable person, and (b) is not of legitimate concern to the public.” RESTATEMENT (SECOND) OF TORTS § 652D (emphasis added). The communications at issue here are not of this kind.
A sworn officer with the Department of Homeland Security has been charged with kicking a handcuffed man in the head outside a federal building in Pomona.
Jason Rouswell, 46, was indicted Thursday and accused of violating the civil rights of the handcuffed man during the Oct. 20, 2016, incident, according to the U.S. attorney’s office in Los Angeles.
Rouswell, a resident of Los Angeles, is an inspector with the Federal Protective Services. It’s unclear if he’s represented by an attorney.
Prosecutors allege that Rouswell and another officer had detained and shackled a man outside the Social Security Administration building in Pomona. During the arrest, he kicked a man who was lying face down in the street.
Video of the incident broadcast by KCBS-TV shows a uniformed officer kick a man who appeared to be cooperating with authorities.
The victim, identified in court papers only by the initials C.S., suffered undisclosed injuries.
Prosecutors said Rouswell is expected to surrender to authorities on July 5. If convicted, he faces a maximum sentence of 10 years in federal prison.
A police officer is under official review for an arrest he made Tuesday night.
The incident under scrutiny was caught on camera before 7:30 p.m. in what police call a high crime section.
Police confronted a man they saw jay walking and they say he refused to cooperate with their demands.
He did not show them his ID, and a struggle ensued and eventually the suspect was wrestled to the sidewalk.
Then more rough stuff continued, according to the police’s account, with an officer seen on cell phone video repeatedly striking Barry Cottman in the head as they tried to handcuff him.
Millville Police Chief Jody Farabella said, “The officers are saying stop resisting, stop resisting. With the use of force continuing, officers have to use force as much as necessary to affect the arrest. Our officers are trained here to never use the use of force as routine.”
Cottman’s mother, Cynthia Jackson is charging police brutality.
“There was no need to stomp him like that. He has been arrested before in the past, and he has never resisted Millville police,” she said.
When asked what happened Tuesday?
Jackson said, “Nothing but walking up the street…I didn’t see it. I didn’t witness it, just what was told to me, and what I saw on the video.”
According to his relatives, Cottman was taken to the hospital for treatment of his injuries.
He will be charged with aggravated assault on police and related charges including jay walking.
In the meantime, Millville police are examining closely the handling of this by the police officer to see if his use of force was consistent with the department rules.
“The officer did use force to affect his arrest. Obviously, it’s going to be looked at. We have a professional standards unit. They are going to have to look and see if the use of force was justified in this case,” Chief Farabella said.
Two employees with the Macon County Sheriff’s Department have been arrested and charged in two separate cases.
In recent weeks county jailor Andrew Dixon and a deputy/investigator Jason Whitt were arrested on sexual misconduct and bribery charges, respectively.
Dixon, a correctional officer in the Macon County jail, was arrested in early June after the State Bureau of Investigation (SBI) was called by Macon County Sheriff Andre’ Brunson upon receiving information that Dixon possibly having unlawful sexual contact with an inmate.
“A female complained to the administration that she had sexual contact with Dixon,” Brunson said. “After getting this information, I called SBI to conduct the investigation because I wanted the community to know we do things by the book.”
Dixon, who is also the janitor at the Tuskegee Police Department, has been placed on leave and was given the option to resign by the Police Department.
“The City Attorney (Milton Davis) advised that we give Mr. Dixon the option to resign. If he does not then we will terminate him,” said Police Chief Lester Patrick. “We have not heard from him at this time, so we will probably terminate him.”
Patrick made the statement concerning termination on Tuesday, June 27 before The Tuskegee News went to press for the June 29 edition.
Dixon was charged with four counts of custodial sex abuse involving four different inmates in the Macon County facility.
According to court records:
•The first female reported sexual misconduct on July 29, 2016 and again March 25, 2017.
•The second inmate reported sexual contact between April 6 and June 9, 2017.
•A third inmate reported the unlawful sexual contact between April 29 and June 9, 2017.
•The fourth and final inmate to make a report against Dixon said contact was made between April 9 and June 9, 2017. The sexual misconduct and contact were defined as touching, oral sex and penetration.
Dixon has since made bond and has been fired by the Sheriff’s Department.
K-9 Deputy and Investigator Whitt was arrested on Friday, June 23 and charged with two counts of extortion. He was fired after a month-long investigation by SBI and after Brunson had been informed that Whitt was possibly doing some things that were inappropriate and taking money from inmates.
There may be more charges against Whitt, who also has been fired from the department and released from the Chambers County Jail on bond.
“I am not going to allow people to take unlawful advantage of anyone, especially my officers,” Brunson said.
“I am so sorry these things have happened at the department, but I will not allow any wrongdoings to take place on my watch. I do not care who is doing wrong, they will be arrested and charged.”
Inmates slip out briefly
as lock malfunctions
In another incident, Sheriff Brunson said a malfunctioning lock led to two inmates walking out of the jail this past weekend.
The inmates did not leave the premises and eventually knocked on the door of the jail to be let back inside.
“It’s been a tough couple of weeks,” Brunson said. “It’s unfortunate that all these things just happened at one time.”
Two inmates said a door popped open on Friday night (June 23) and they went outside and through a cut in the fence to a wooded area about 40 feet from the facility. They had someone bring them food, cigarettes, and a cell phone. They enjoyed their freedom for about two hours before going back to be let into the jail, according a report by WSFA television station.
Sheriff Brunson said he doesn’t consider it an escape because the inmates never left the vicinity.
“Some kind of way, the lock came open. To me, it looks like someone hit it a little bit, but it shouldn’t have come out that door like that. It malfunctioned. That’s what we’re investigating right now,” Brunson said. “They walked behind the building and sat down back there and came right back.”
All of the other locks were inspected and no problems were found. Work is being done on the faulty lock by the company who recently installed all of them.
“That shouldn’t have happened. Even if somebody beat on it, it should not have completely come out like that,” Brunson commented.
OREGON CITY, Ore. — Former Clackamas County Sheriff’s Office detective Jeffrey Green took a plea deal Thursday over five years of what’s being called “abysmal, serious and gross” misconduct.
Green’s supervisors noted his “poor performance” of not following up on cases or sending evidence to the state crime lab in February 2015. He was ordered to complete reports for work that was already done and suspended from new investigations the next month.
He retired in April 2015, and another detective was later assigned to audit all of Green’s cases. By February 2016, that detective found 40 cases that needed additional work and followups that had allegedly been missed by Green.
When Green’s former superiors looked over those audits, they realized his practices may rise to the level of official misconduct. A third-party consultant told Clackamas County Sheriff’s Office that all supervisors should perform random audits of detectives’ cases.
Green was charged with five counts of official misconduct. In court Thursday, he took a plea deal and was sentenced to a year in probation. He was also ordered to pay a fine, and was forced to give up his certification so he’ll never be able to serve in law enforcement again.
The District Attorney’s Office says Green couldn’t get a stiffer penalty because there’s no crime on the books in Oregon for detectives not properly doing their jobs.
Jaime Smith said he was wrongfully investigated by Green for insurance fraud, and said he’s upset about the punishment Green got.
“With stuff like child abuse he says, ‘Oh I don’t want to look in to it, it’s too hard.’ They’re held to that higher standard, he’s a detective because he’s held to that higher standard, right? To just pick and choose and go through and act inappropriately the way he does I just don’t think it’s right,” Smith said.
Green refused to comment on the case. His wife told KATU News all the accusations are false.
Ryan Osborne, Mitch Mitchell, Star-Telegram , WFAA5:57 PM. CDT June 27, 2017
FORT WORTH, TEXAS – Fort Worth police officer Courtney Johnson — whose charge of aggravated assault by a public servant for shooting a man who was holding a barbecue fork was dismissed last month after a mistrial — has been fired, police Chief Joel Fitzgerald said Tuesday.
Johnson, 35, was accused of shooting Craigory Adams by recklessly handling his shotgun on June 23, 2015.
“We found that these actions were careless and that led to an individual being injured and that’s something we can’t let happen,” Fitzgerald said.
A two-count indictment accused Johnson of taking his gun off safety and sliding the pump action back, then forward as it was pointed toward Adams. The shotgun fired, hitting Adams in the arm. The officer has said he thought Adams was holding a knife, but it was actually a barbecue fork.
In Johnson’s trial, the jury split 5-7, but it was not known which way the majority voted.
Johnson testified that based on information from the 911 call taker, he thought Adams was holding a knife. Johnson’s attorneys, Tim Choy and Jim Lane, maintained that the shooting was accidental but acknowledged that the case may have been difficult for jurors to understand.
“After review of the trial case, and the evidence produced at that trial, it is my belief that any subsequent retrial is unlikely to result in the return of a unanimous jury verdict,” a motion filed by District Attorney Sharen Wilson stated.
Adams, a mentally challenged man who was living with his parents, was outside holding a barbecue fork when he knocked on a neighbor’s door and the neighbor called police.
Johnson failed to identify himself as a police officer when he approached Johnson, said Tamala Ray, a Tarrant County prosecutor. Johnson drove up to the location of the call without his lights and sirens activated and gave Adams several commands, Ray said.
Adams dropped the barbecue fork and dropped to one knee, Ray said in her opening statement at trial.
“At the end of the day, my decision is about safety, security, and community confidence in our officers,” said Fitzgerald in a news release. “Johnson made the wrong decision, and he could have killed Craigory Adams. It’s important to note that Mr. Adams had knelt and dropped the barbecue fork he was holding, and was compliant at the time he was wounded.”
A former Los Angeles Unified School District police officer pleaded guilty to trying to solicit a teenager for sex: BREAKING.
By SoCal Patch (Patch Staff) – Updated June 26, 2017 9:39 pm ET
LOS ANGELES, CA — A former Los Angeles Unified School District police officer pleaded guilty Monday to a federal computer charge linked to an attempt to solicit a 15-year-old girl for sex.
Mauricio Edgardo Estrada admitted to U.S. District Judge Dale Fischer to using the internet to plan the paid sexual encounter with a minor. The “girl” turned out to be an undercover law enforcement officer.
Estrada, 29, responded to a Craigslist advertisement promising sex with a minor in April 2016. He exchanged emails and text messages with the “girl” and agreed to pay $150 for sex, according to his plea agreement, filed in Los Angeles federal court. His sentencing is scheduled for Nov. 13.
Prosecutors are asking for a sentence of five years behind bars, followed by 10 years of supervised release.
Estrada was originally charged last year with attempted sex trafficking of a child and use of the internet to induce a minor to engage in criminal sexual activity, but federal prosecutors subsequently filed the new charge to which he will plead.
When he arrived at a gas station in Artesia to meet the supposed girl, Estrada had $150 in his possession and condoms, court papers show. He was taken into custody by sheriff’s personnel and subsequently released after posting bond.
Estrada was hired by the school district in December 2013 and placed on administrative leave after his arrest. It is unclear when he left the district’s employment. The case does not involve a student or any of the district’s campuses.
June 27, 2017 08:11AM By Leigh Tauss, Record-Journal staff
MERIDEN — Police Capt. Patrick Gaynor, accused of committing 63 department policy violations, including misconduct and untruthfulness, was terminated Monday.
The move was recommended by Charles Reynolds, a former police chief in New Hampshire, who acted as hearing officer for the case.
Gaynor, a city police officer since 1996, declined to comment Monday. He was placed on paid administrative leave in December, a month after he returned to work following two months of paid leave during an investigation into the alleged misuse of city funds by Gaynor while he served as interim head of the city’s dispatch center. In that investigation, Reynolds determined Gaynor did not misappropriate funds.
From this section: Meriden police union president retires after 32 years
After Police Chief Jeffry Cossette initiated the investigation into the misuse of funds, Gaynor filed a complaint against Cossette alleging the chief engaged in a pattern of retaliatory behavior since the federal conviction of his son, former police officer Evan Cossette, in 2013.
Attorney Daniel Esposito, who represents Gaynor, said Monday that he plans to file a grievance in coordination with the city police union contesting the termination. Esposito said in a statement that the decision “represents but one step in a process that we are confident will result in Captain Gaynor’s vindication,” adding that of the 63 counts, only three were sustained by Reynolds.
“Our attention will now shift to a hearing before a panel of the Connecticut Board of Mediation and Arbitration,” he said. “Pursuant to said hearing will be the power to subpoena witness testimony and documentary evidence, which we expect will lead to Captain Gaynor’s reinstatement.”
Sgt. Christopher Fry conducted the most recent investigation, which included reviewing over 10 hours of recorded interviews conducted with Gaynor by Berchem, Moses & Devlin Attorney Paula Anthony. The interviews explored Gaynor’s previous claims regarding his removal from snow tow duty, a 2014 performance evaluation and the cancellation of the DARE program. Fry concluded Gaynor “may not have properly prepared supporting information that would have substantiated his complaint,” and may have violated 63 department policies, including conduct unbecoming of an officer, the accountability, responsibility and discipline policy, the dishonesty and untruthfulness policy, falsifying records, retaliatory conduct and violating the chain of command.
Reynolds conducted a disciplinary hearing with Gaynor on May 19. His 20-page review examined Gaynor’s allegations of retaliation by Cossette and found there was a lack of evidence presented to support the claims.
“This is unfortunate because, when reviewing the voluminous material involved in this matter, I find reason for concern regarding various internal matters, which may be cause for review, if evidence based,” Reynolds wrote. “The evidence provided by you generally consisted of innuendo and unsupported statements, which in several instances, could have been verified, mitigated or negated had you made an effort to do so. Rather, it appears you simply advanced multiple allegations believing/hoping the volume of complaints would support the notion of retaliation.”
Reynolds states Gaynor’s allegations were made with “reckless disregard for facts and evidence,” which is not protected by “work-place speech.” He found Gaynor violated three department policies: the accountability, responsibility and discipline policy, the dishonesty or untruthfulness policy and the retaliatory conduct policy. Gaynor’s actions “exacerbated” tensions within the police department, Reynolds said, adding that his decision to recommend Gaynor’s termination was a difficult one given the challenges of police duty.
“To be sure, I have evaluated several corrective options, including suspension, demotion, professional counseling as well as various combinations thereof to quell the hostility and allow you, the Chief and members of the MPD to return, as you would say, to normalcy,” Reynolds wrote in his decision. “However, the primary impediment to each of those options is your willingness to be untruthful, both with the allegations and with the support provided for them during the two investigations. Truthfulness is the stock and trade of any police officer.”
Gaynor received a letter Monday notifying him of his termination, “effective immediately.” The letter notes that pension paperwork and calculations will be sent to Gaynor and any remaining sick or vacation time will be paid out in the next month. Finance Director Michael Lupkas said calculations on Gaynor’s pension could take several weeks.
Scaife said the evidence against Gaynor was “extremely compelling.”
“I think the report speaks for itself,” Scaife said Monday. “It’s unfortunate things turned out the way they are. It’s been a long process, but it is over.”
Four other pending internal affairs investigations into Gaynor’s conduct remain open. Scaife said the status of those investigations will depend on if Gaynor decides to challenge his termination. Officials haven’t released details on the pending investigations.
“They are serious, open issues that certainly won’t go away,” Scaife said.
Cossette issued a statement saying that Gaynor’s “attacks” on him, his family and Deputy Chief Timothy Topulos “are without merit and unacceptable.”
“When officers undermine the public’s trust and confidence and perpetuate rumors, innuendo and false statements that give rise to a perception that negates the department’s ability to achieve its mission, the law enforcement profession mandates that they be removed from office,” Cossette said via email. “As the investigative report and findings reveal, Mr. Gaynor engaged in a pattern of untruthful behavior designed to undermine my authority as Chief of Police. As such, he negatively impacted the agency’s ability to achieve its mission and win the public’s trust and confidence. The correct result was achieved in this matter. We will move forward as a Department and continue to work in partnership with our neighborhoods to build trust and effectively achieve a common goal of a safe community.”
Gaynor filed an intent to sue notice with the city in September. New Haven-based attorney John Williams, who represents Gaynor in the action, said he expects file the lawsuit by the end of the week.
“In our view, (Gaynor’s termination) is clearly a case of retaliation,” Williams said. “We believe it’s retaliation for having been a whistleblower specifically for having testified in federal court as a prosecution witness against the chief’s son.”
LANSING — A viral video posted to social media appears to show an off-duty police officer physically restraining a teen in his front yard and threatening to kill him.
Lansing police said they were aware of the video and opened an investigation into the matter before it was posted Sunday on Facebook by Ann Falls. The video had been viewed about 2.8 million times as of Tuesday morning.
According to statements from police, officers were dispatched about 3:45 p.m. Saturday to the area of 192nd Street and Oakwood Avenue for a fight involving about 30 juveniles. The fight was over when police arrived.
“An off-duty Lansing police officer, outside on his personal property, became involved when he was approached by two other subjects involved in the fight. One of the juveniles had visible minor injuries, and the other was temporarily detained for further investigation until the arrival of on-duty officers,” a statement issued Monday said. “The juvenile’s parents were ultimately contacted, and they were transported home pending further investigation.”
The 1-minute, 32-second video opens with the officer on top of the teen. The officer appears to be demanding the teen to direct a friend to come back to the property.
“If you come back on my property again, I’m going to (expletive) kill you,” the officer says.
A woman on the front porch talks about turning off a phone and says, “You came to the wrong house.”
The teen tells the officer he’s “not involved in this” and asks why he’s being detained.
The officer responds, “I don’t give a (expletive) who is, don’t you understand that?”
Lansing Police Chief Dennis Murrin said the officer is still on active duty and no arrests were made at the scene.
A second statement issued by the village Tuesday evening said officers on the scene met with a 12-year-old male black juvenile who said a 15-year-old white male gave him a beverage that may have contained drugs. The 12-year-old went home and told his family what happened, according to police.
A short time later, an older brother of the 12-year-old confronted and fought the 15-year-old, resulting in minor injuries, police said. The 15-year-old, along with other juveniles with him, fled the area before police arrived, according to the release.
Police said the off-duty officer discovered a backpack in his fenced-in backyard containing a baseball hat and a BB gun before seeing the 15-year-old on his property, bleeding from the face. According to the release, the 15-year-old told the officer he was involved in a fight with several male black juveniles.
While the two were speaking, a 15-year-old black male juvenile wearing a backpack approached, police said.
“Both of the juveniles attempted to leave at that point in time. The off-duty officer told them to stay until the arrival of the police,” the release from police said. “The juveniles refused to stay and attempted to leave, resulting in the off-duty officer physically detaining one of the juveniles.”
Police later determined there were no drugs in the beverage.
The Police Department asked that anyone with direct information about the case call its Criminal Investigations Division at 708-895-7150.
The boy’s family did not respond to requests for comments via Facebook.