Yes. In Illinois, you have the legal right to record public interactions with police. This practice is commonly referred to as “copwatching,” and can serve as a check on police brutality and misconduct. In fact, copwatching has a history dating back to the 1960's when Huey Newton and Bobby Seale taught California Law to Black Panther Party Members "with the purpose of protecting their communities and policing the police."^[1] Even though this practice is legal, there are a number of risks involved. This post will introduce a few important legal concepts to keep in mind in order to ensure your safety if you decide to engage in copwatching.

Officer consent is not required for recording

Illinois is a two-party consent state, which means that it in some circumstances it is illegal to record a conversation unless all parties consent to the recording.^[2] Under the original Illinois eavesdropping statute, it was illegal to record police officers in public without their consent.^[3] Then in 2012 the ACLU successfully challenged this law in court so that they could implement a copwatching program without risking prosecution.^[4]

Two years later a new eavesdropping law was passed that allows citizens to record public conversations, including those involving police, without the two-party consent requirement.^[5] The new law does still require the two-party consent requirement for conversations where the people involved have a “reasonable expectation” of privacy. But this exception does not apply to on-duty police officers performing their duties in public.^[6]

Beware police retaliation

The First Amendment guarantees the right to free speech,^[7] including audiovisual recording,^[8] so it is unconstitutional for police officers to retaliate by arresting someone who is recording them. However, a recent Supreme Court decision will make it difficult to hold police accountable when they do retaliate in this manner.^[9]

In order to win in a retaliatory arrest lawsuit, you must prove that, if you had not been recording the police, they would not have arrested you.^[10] In addition, it is harder to win if the officer had "probable cause" to arrest you.^[11] Probable cause is a reasonable basis for an officer to believe that a person is committing or has committed a crime. Given the fact that these arrests typically result in broad charges such as “disorderly conduct” or “failure to obey a lawful order,” there will be at least some evidence of probable cause in most retaliatory arrest claims.^[12] If so, the only way to win is to have that there were other people in the same situation who did not record and were not arrested. This can be difficult, because there might not be anyone else around at the time the event happened, and other forms of proof–such as statistical analysis or other expert opinion–could be costly and time-consuming. 

Copwatching Tips

As you can see, there are many potential risks involved in copwatching. To help protect against these risks, First Defense Legal Aid compiled an “Enforce Your Rights” manual that includes tips for copwatching and information about police brutality lawsuits. Here are some tips for copwatching:

• Narrate the recording with specific times, dates, locations, and descriptions of what the police are doing. 
• Copwatch in pairs, with one person filming the interaction and the other standing at a safe distance between the police and the person recording. 
• You have the right to record the police. But if they demand that you stop recording, it might make sense to do so in order to protect your personal safety.
• Record at a reasonable distance, and step back if asked. By copwatching, you are observing a police interaction to safeguard people’s rights, but it is important to not directly interfere with the interaction or be perceived as doing so.

The manual also details essential rights that you should keep in mind during any interaction with the police. For example, you have the right to:

• Leave a police encounter unless you are being detained. You should ask “am I free to go?” and, if the answer is yes, calmly walk away from the interaction. Do not run.
• Not consent to a search. You should say clearly and firmly “I do not consent to any searches,” but for your own safety you should not physically resist the police even if they are conducting an illegal search because this could lead to charges being filed against you for resisting or obstructing a peace officer.
• Remain silent in response to officers' questions. You should say “I will not talk, I want my lawyer” in response to any questioning.”
• If you are arrested in Illinois, you have a right to consult with an attorney at the first place of custody, as well as the right to make three phone calls within three hours. Remember that police station calls are recorded, so you should not talk about the details of the arrest. In Cook County, the Law Office of the Cook County Public Defender has a 24-hour arrest hotline to provide for free attorneys at the police station. You can reach this hotline by calling 844-81-RIGHT or (844) 817-4448.

Copwatching is a crucial check on police brutality and a necessary part of the larger community organizing struggle against police violence.^[13] We at FDLA hope that this post is a helpful resource for anyone undertaking this essential work.

This information is posted as a public service by Illinois Legal Aid Online and its partners. Its purpose is to inform people of their legal rights and obligations. Talk to a lawyer if you have questions about how this information applies to you.