This photo taken Thursday, Feb. 2, 2012, shows artist and free speech blogger Christopher Drew in his studio in Chicago. Drew was charged under the Illinois eavesdropping law on Dec. 2, 2009, after police arrested him for selling screen prints for $1 on Chicago’s State Street without a license. Drew had blogged about his intention to be arrested to challenge the right to sell art in public and put a digital recorder in one of the sandwich bags pinned to his red poncho to display his art. When police discovered the recorder after his arrest, he was not charged with a misdemeanor, he was charged with an eavesdropping felony. He spent three days in jail and faces up to 15 years in prison, with his trial date approaching in late spring of this year. Many more people could be introduced to the Illinois law in May when thousands of protesters and journalists head to Chicago for the NATO and G8 summits. (AP Photo/M. Spencer Green)

Judge declares state eavesdropping law unconstitutional

SHARE Judge declares state eavesdropping law unconstitutional
SHARE Judge declares state eavesdropping law unconstitutional

A Cook County Judge declared the state’s eavesdropping law unconstitutional Friday, and a state lawmaker hopes the ruling provides momentum for her push to change the law.

Judge Stanley J. Sacks issued the ruling in the case of Christopher Drew, a Chicago artist who was charged with felony eavesdropping after he recorded his Dec. 2, 2009, arrest on State Street by Chicago Police.

“The Illinois Eavesdropping Statute potentially punishes as a felony a wide array of wholly innocent conduct,” he read. “A parent making an audio recording of their child’s soccer game, but in doing so happens to record nearby conversations, would be in violation of the eavesdropping statute.”

Prosecutors now may appeal the judge’s ruling directly to the state’s Supreme Court.

A photographer and screen printer from Rogers Park, Drew, 61, was selling art patches for $1 at 103 N. State St. when he was arrested for not having a peddler’s license.

Police found a tape recorder in his poncho that recorded the conversation between Drew and the arresting officer on the street.

He was charged with a Class 1 felony, which carries a penalty of up to 15 years in prison.

“It was impossible for me to imagine a law based on privacy would make it illegal for me to tape a public conversation by a public officer on the public way who was arresting me,” Drew said after the hearing in the Criminal Courts building in Chicago. “I should have the right to bring evidence into court of what that officer says to me in public.”

His attorney, Joshua Kutnick, had argued that the law was too broad.

“It criminalizes conduct that the statute was not designed to criminalize,” Kutnick said Friday. “It was designed to protect personal privacy and what Chris did out there on State Street that day was not a violation of the officer’s personal privacy.”

Illinois has one of the strictest laws in the country prohibiting audio recording without the consent of all parties involved in the conversation. Most states allow one-party consent, in which only one person who is part of the conversation has to agree to it being recorded.

A bill to change the law is pending in the Illinois House.

State Rep. Elaine Nekritz (D-Northbrook) is the lead sponsor of a measure that would legalize the recording of conversations with police officers performing their duties in public places “if the conversation is at a volume audible to the unassisted ear of the person who is making the recording.”

The bill passed out of committee in early February by a 9-2 vote and now is positioned for a floor vote by the full House.

Nekritz said Friday’s ruling “provides a great deal of momentum.”

The bill has 26 co-sponsors, including three Republicans, yet police groups still oppose the bill, and Nekritz is not clear whether she has the necessary 60 votes to pass the legislation in the House.

“We’ve been engaged in discussions with the police groups to try to see if there is some room for coming together,” she said. “I still think we are probably philosophically just going to be on opposite sides of the fence. But we’re trying.”

But not all police officials fully back the existing law. Chicago Police Supt. Garry McCarthy has called the Illinois eavesdropping law a “foreign concept.” He has said recording police doing their jobs might prevent false accusations of misconduct later.

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