Audio Recording of Police Once Again Found to Be Protected By Right to Free Speech. Author: Trial Lawyer Michelle Funkenbusch

Audio Recording of Police: Constitutionally Protected under the First Amendment According to St. Louis Trial Lawyer

First Ammendment
Audio Recordings of Police Protected By First Amendment According to Two Different Courts Of Appeal… U.S. Supreme Court Lets Rulings Stand.

St. Louis Civil Rights Trial Lawyer Michelle Funkenbusch isn’t surprised if this First Amendment ruling makes you scratch your head but simply put… “recording public police speech” = “speech”.  So yes… laws attempting to limit the audio recording of speakers (even though the person recording is not necessarily speaking)  can violate the recorder’s constitutional protections of free speech.

The U.S. Supreme Court on Monday delivered a blow to Illinois’ 50-year-old anti-eavesdropping law according to trial lawyer Funkenbusch.  The Illinois Eavesdropping Act, enacted in 1961, makes it a felony for someone to produce an audio recording of a conversation unless all the parties involved agree. It sets a maximum punishment of 15 years in prison if a law enforcement officer is recorded.   In refusing to hear the appeal, the U.S. Supreme Court let stand a lower court finding that major parts of the eavesdropping law violate constitutional protections of free speech.

The 7th Circuit majority found that 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. In particular, the court noted that the statute restricts far more speech than necessary to protect legitimate privacy interests.

THE LAW AT ISSUE: Felony to Record Police Acting in Official Capacity Performing Public Duties

The provision at issue of the Illinois eavesdropping law is 720 ILCS 5/14-4 . It imposes a Class 1 felony penalty upon an individual who, in violating § 14-2 of the statute, records an oral conversation of a police officer or certain other public officials in the performance of their official duties. This provision and its explicit effect has long been criticized. In fact, the Illinois State Bar Association proposed legislation, originating through its Intellectual Property Section Council, amending the Illinois Eavesdropping Statute to eliminate the very effect of § 14-4.

In the appeals court ruling in May, the 7th U.S. Circuit Court of Appeals found that 720 ILCS 5/14-4– one of the toughest of its kind in the country – violates the First Amendment.

[Legal Fact of the Day:  The First Amendment states; “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

This case came about when the ACLU of Illinois brought suit against Cook County State’s Attorney Anita Alvarez in 2010, after her office wanted to bring charges against ACLU staff recording audio of police officers performing their public duties in a public place and speaking loudly enough to be heard by a passerby.”

On May 8, 2012, the 7th Circuit U.S. Court of Appeals in Chicago sided with the ACLU, ruling that audio or audiovisual recording of police doing their public duties in a public place, particularly in the case at hand, is indeed a constitutionally protected right under the First Amendment right to free speech.

Civil right’s activists believe the ability to record helps guard against police abuse.   The most notorious incident was the infamous 1991 videotaping of LAPD officers beating Rodney King. The taping created a media scurry and national controversy over the effect of racial tensions between police and crime suspects.

The eavesdropping law’s proponents, however, say it protects the privacy rights of officers and civilians, as well as ensures that those wielding recording devices don’t interfere with urgent police work. Officers argue the recordings are often done by harassing paparazzi-like mobs at scenes where they are attempting to make legitimate investigations and arrests.  People attempting to You-Tube and Facebook arrests can get in the way of legitimate police business.

Nevertheless, based on the U.S. Supreme Courts denial to hear the appeal, free speech has found a win over the need for police to do their job unaffected by surrounding crowds.

On a historical note, it was not until the flag-burning cases of 1989 (Texas v. Johnson) and 1990 (United States v. Eichman), that the Supreme Court accepted that non-speech means of communicating applied to freedom of expression and freedom of speech.  According to St. Louis trial lawyer Michelle Funkenbusch, in the case at hand, we are seeing a new non-speech definition of speech… i.e. the act of recording communications.

This isn’t the first case on the issue of the “Right to Record”. Just last year, the First Circuit Court of Appeals held that the First Amendment provided and protected the right to record police in their official capacity in Glik v. Cunniffe, et al., No. 10-1764 (1st Cir. Aug. 26, 2011).  The First Circuit held, “A citizen’s right to film government officials … in the discharge of their duties in a public space is a basic, vital, and well-established liberty safeguarded by the First Amendment.”

The Seventh Circuit Court of Appeals ruling on the Illinois law is consistent with this First Circuit ruling on recording laws in Massachusetts. This lack of conflict in the Circuits may be why the U.S. Supreme Court rejected hearing the case.

-Published November 27, 2012. Authored by Michelle M. Funkenbusch, St. Louis Trial lawyer

If you know someone who has been arrested or harassed for recording the police, contact trial lawyer Michelle Funkenbusch at 314-338-3500 to have your civil rights case reviewed.

 © 2012 The Law Offices of Michelle M. Funkenbusch, LLC.  All Rights Reserved. These materials may not be reproduced in any way without the written permission of The Law Offices of Michelle M. Funkenbusch, LLC. This blog is designed to provide general information on the topic provided and is posted with the understanding that the publisher is not engaged in rendering any legal or professional services. Although this post and the blog is prepared by a lawyer, it should not be used as a substitute for legal advice. If legal advice is required, the services of The Law Offices of Michelle M. Funkenbusch should be sought privately.


Learn Food Warranty Law Before You take Another Bite: Missouri Personal Injury Lawyer Gives You Some Legal Thoughts to Chew on.

We ALLL have food on the brain the day before Thanksgiving. So Missouri personal injury lawyer, Michelle Funkenbusch sums up Food Hazard/Choking Law for You:


Missouri Personal Injury Lawyer on Food/Choking Hazard Law
Missouri Personal Injury Lawyer on Food/Choking Hazard Law

According to Missouri personal injury lawyer, Michelle M. Funkenbusch,  if you are injured  at a restaurant choking on food hazards (like bones/plastic/toothpicks), Missouri courts follow warranty law to determine liability.  The same is true if you purchase a turkey from your local grocery store, cookies from your local scout troop, or candy from a vending machine, or even a beer from your local pub.  Specifically, Missouri follows the common law principle that there is an implied warranty as between the retail dealer and the consuming purchaser in the sale of food, including a warranty of freedom from foreign substances which may be injurious to the purchaser. Degouveia v. H.D. Lee Mercantile Co., 231 Mo.App. 447, 100 S.W.2d 336, 339 (1936).  A claim for common law implied warranty of fitness for consumption requires that a Plaintiff show:  (1) the defendant sold a food substance meant for human(or animal) consumption;  (2) the plaintiff (or your animal) ate or drank the food/drink; (3) when the defendant sold the food/drink it was not fit for human(or animal) consumption; and (4) the Plaintiff was damaged as a direct result.  See Missouri Approved Instructions (MAI 25.02).

[RANDOM LEGAL FACT OF THE DAY: The MAI is the book of jury instructions relied on by courts to instruct the jury what must be proved in a particular case. The Missouri Supreme Court committee on jury instructions creates this book and it must be reviewed and used in every civil case that goes to trial.]

Grandma’s Food Almost Killed Me!!

What if you are at your Grandma’s house for Thanksgiving and you choke on a foreign substance that you could/would not have inspected in the food?  Assuming it was not added to the food by your grandmother (which of course will be a defense of the seller and manufacturer), you may have a case for a personal injury lawyer to review.  It doesn’t matter that you didn’t buy the food at a restaurant or store.  If the injured party in a choking case was not the purchaser of goods, but is a natural person who is a member of the family or household of the buyer, or was a guest in the buyer’s home, and it was reasonable to expect that such person would consume  the food/drink, then the seller or manufacturer can be liable under the Uniform Commercial Code. In other words, even though you lack “privity of contract” you may be able to recover and should seek the counsel of a St. Louis personal injury lawyer.    And yes, you could sue Grandma for negligent cooking… but that’s just not nice!

Missouri Personal Injury Case Against the Manufacturer??

If you have sustained personal injury  in Missouri as a result of the consumption of a foreign body or substance in a food or beverage sold, you may also, under proper circumstances, maintain an action to recover damages for such injury against the manufacturer of the product, on the ground of breach of an express or implied warranty.  In the absence of an express warranty (something actually written on the product or packaging), the law implies that the manufacturer or packer of foods intended for human consumption warrants that his products are fit for human consumption, and that he has used in the selection and preparation of such products the degree of care ordinarily exercised by persons skilled in the business of preparing and packing food for distribution or sale to the general public.

A  manufacturer, in the proper factual situation, is held as an “absolute insurer against knowable dangers”, and thus has an incentive to keep abreast of scientific knowledge to keep knowable dangers out of their products.  But, in some cases (like in the case of cigarettes), what is knowable can be difficult to prove without a great deal of expense and highly trained personal injury lawyers.  Ross v. Phillip Morris, 328 F.2d 3 (United States Court of Appeals Eighth Circuit 1964).

Other Theories a St. Louis Personal Injury Lawyer May File Suit for in A Food Hazard Case

You may also have the right to sue under other theories of personal injury. For example, you may have a claim under the Uniform Commercial Code for breach of an implied warranty for fitness for a particular purpose or breach of implied warranty of merchantability (fitness for an ordinary purpose) in general.  You may also have a claim for strict liability for a product defect or for failure to warn.   These are complicated claims and require the expertise of an experienced St. Louis personal injury lawyer.

Choking on Bones in the Turkey vs. Glass in the Turkey… why is one a good case and one a bad case?

To have a good case of liability, you usually have to have been injured by something foreign to the food you were eating, but not always.  Liability for injuries caused by a substance in food will often depend on whether the substance in question is considered to be “foreign.”  Under the so-called foreign-natural test that many other states rely on, there is no liability for injury caused by a substance that are considered “natural” to the food sold.  If the object is one that is naturally associated with the type of food in which it is found, it is not considered to be foreign, since the occasional presence of such objects is something to be anticipated by the consumer. Thus, for example, a hardened, crystallized grain of corn has been held not to be foreign to a package of corn flakes, and a bone has been held not to be foreign to a canned food product containing meat of the kind from which the bone came. However, some courts have held that objects which are natural to the type of food involved but which generally are not found in the style of the food as prepared may be deemed to be the equivalent of a foreign substance. Thus, in an action against a packer of canned chicken for injuries sustained from a chicken bone in chicken chow mein served at the plaintiff’s school and made from the defendant’s product, the chicken bone was held to be “something that should not be” in defendant’s product, which defendant had advertised as “boned chicken.” It has also been held in other states that breach of an implied warranty of fitness is shown by proof of a piece of oyster shell in a can of oysters sold by a defendant retailer, even if it appears that shells cannot be entirely eliminated in the canning of oysters.

Several states have rejected the “foreign-natural” test in favor of what is known as the “reasonable expectation” test. This test is based on what is reasonably expected by the consumer in the food as served, not what might be natural to the ingredients of that food prior to its preparation.

The “foreign-natural” test apparently continues to be the rule in most jurisdictions.  In states where the “foreign-natural” test is applied, even if an injured plaintiff can establish an otherwise legally sufficient claim of negligence, breach of implied warranty, or strict tort liability, a food processor may be free from liability as a matter of law if the deleterious object or substance in the food is natural to the ingredients of the product.  However, in states where the “reasonable expectation” test is the rule, liability might be incurred on any appropriate theory even for a “natural” defect if it is one not reasonably anticipated by the consumer. There appears to be a recent trend among several states toward acceptance of  the “reasonable expectation” test.

Missouri has yet to directly adopt either test mentioned above and leaves the fitness for consumption a question for the jury.  This grey area of the law is another reason why you should consult with an experienced Missouri personal injury lawyer.  

Michelle M. Funkenbusch has handled cases involving plastic in pudding, foreign substances on buffets, rat parts in frozen spinach, lead poisoning, and more. Contact her if you would like to discuss your potential case for free at 314-338-3500.

 © 2012 The Law Offices of Michelle M. Funkenbusch, LLC.  All Rights Reserved. These materials may not be reproduced in any way without the written permission of The Law Offices of Michelle M. Funkenbusch, LLC. This blog is designed to provide general information on the topic provided and is posted with the understanding that the publisher is not engaged in rendering any legal or professional services. Although this post and the blog is prepared by a lawyer, it should not be used as a substitute for legal advice. If legal advice is required, the services of The Law Offices of Michelle M. Funkenbusch should be sought privately.