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State Response Amended Motion

State Response Amended Motion

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Published by anacondakay044
Mr. Robert Podlasek Response To Melongo's Motion To Dismiss
Mr. Robert Podlasek Response To Melongo's Motion To Dismiss

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Published by: anacondakay044 on Feb 15, 2012
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01/12/2014

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STATE OF ILLINOISCOUNTY
OFCOOK
)
) SS.
)
IN
THE
CIRCUIT COURT
OF COOK
COUNTYCOUNTY DEPARTMENT, CRIMJNAL DIVISION
PEOPLE
OF
THE
STATE OF ILLINOIS,Plaintiff,
VS.
ANNABEL
MELONGO
Defendant.
)
)
)
) No. 10CR-0809201
)
))
FI
LED
JUDGE
STEVEN
J.
GOEBEl.1954
FEB
j
4
2012
CLERK
OF
THE
CIRCUIT
COURT
CRIMINAL
DIViSION
RESPONSE IN OPPOSITION
TO
DEFENDANT'S
MOTIONTO
DECLARE
720
ILCS 5/14 UNCONSTITUTIONAL
NOW COME THE PEOPLE OF THE STATE OF ILLINOIS,by their Attorney,ANITA ALVAREZ, State's Attorney
of
Cook County, and her assistant, Robert Podlasek request this Honorable Court to dismissDefendant's Amended Motion to Declare Statute Unconstitutional and to Dismiss. In the alternative,the People respectfully request this Honorable Court to deny such motion.
I.
Introduction
Defendant
is
charged with six counts
of
eavesdropping in violation
of
720 ILCS SI14-2(a)(1) and(a)(3) (West 2008). That statutory provision prohibits the"[k]nowing[ ] and intentional[ ] user ] [of] aneavesdropping device for the purpose
of
...
recording all or any part
of
any conversation"without"the consent
of
all
of
he parties to such conversation ..
..
"720 ILCS SI14-2(a)(l) (West 2008). The statute alsoprohibits "Uses or divulges,
..
.any information which he knows or reasonably should know was obtainedthrough the use
of
an eavesdropping device."720 ILCS SI14-2(a)(3) (West 2008). The statute defines "conversation"as"any oral communication between 2 or more persons regardless
of
whether one or more
of
the parties intended their communication to be
of
a private nature under circumstances justi
fy
ing that
-1 -
 
expectation."720 ILCS
5114-1
(d) (West 2008)."Eavesdropping,for a first offense,is a Class 4 felony and, for a second or subsequent offense,is a Class 3 felony." 720 ILCS 5114-4(a) (West 2008). Count I alleges that defendant"knowingly and intentionally used an eavesdropping device
...
for thepurpose
of
recording a conversation
...
between Annabel
K.
Melongo [defendant],and Pamela Taylor
..
.and without the consent
of
all parties such conversation." Counts
II
and III allege the same acts against thesame victim on two other occasions. Counts IV,V and VI allege that defendant"used or divulged any information which she knew or reasonably should have known was obtained through the use
of
aneavesdropping device
...
an audio recording
of
a conversation between Annabel
K.
Melongo [defendant]and Pamela Taylor
..
knowing that such a recording was obtained without Pamela Taylor's consent."Defendant argues that the statute violates her First Amendment right to audio-record governn1entofficials engaged in their official activities.Def. Mot. 5-6. But two courts in Illinois have recently rejectedFirst Amendment challenges to Illinois's eavesdropping statue,
seeAm. Civil Liberties Union
of
llinois
v.
Alvarez,
No.
10
C 5235,2011 WL 66030 (N.D.
Ill.
Jan.
10,2011)
;
People
v.
Drew,
No.
10
CR 46 (CookCty. Cir. Ct. May
18,
2010), and defendant provides no persuasive reason for this Court to reach a differentconclusion. Because"there is nothing in the Constitution which guarantees the right to record a publicevent,"
Potts
v.
City
of
Lafayette,Indiana,
121
F.3d 1106,1111 (7th Cir. 1997),and because the eavesdropping statute is not a content-based restriction on speech -or a restriction on speech at all,
cf
Humanitarian Law Project,
130
S.
Ct. at 2722-23 (defendant remains free to"say anything [he] wish[ es] onany topic") -this Court should reject defendant's First Amendment challenge.
II. The Eavesdropping Statute Does Not Violate The First Amendment.
Defendant's First Amendment challenge must fail. Two courts in Illinois have recently rejected FirstAmendment challenges to Illinois's eavesdropping statue,
see
Am
.Civil LibertiesUnion
of
Illinois
v.
-2 -
 
Alvarez,
No.
10
C 5235,2011 WL 66030 (N.D. Ill. Jan.
10
,2011);
Peoplev.Drew,
No.
10
CR
46 (CookCty. Cir. Ct. May
18
,2010),and defendant provides no persuasive reason for this Court to reach a different conclusion.Defendant cites a First Circuit case for the proposition that"though not unqualified, a citizen's rightto film government officials,including law enforcement officers,in the discharge
of
their duties in a publicspace is a basic,vital,and well-established liberty safeguarded by the First Amendment." Def. Mot.
10
(citing
Glik
v.
CunnifJe,
655 F.3d
78
,
85
(Ist
Cir. 2011)) But the Seventh Circuit has held,to the contrary, that"there
is
nothing in the Constitution which guarantees the right to record a public event."
Potts
v.
City
of
Lafayett
e,
Indiana,
121
F .3d 1106,1111 (7th Cir. 1997).Other federal courts,in the context
of
qualifiedimmunity analyses,have held that there is no clearly established right to record police officers.
See,
e.
g.
,Kelly
v.
Borough
of
Carlisle,
622 F.3d 248,263 (3d Cir. 2010);
Matheny,
2010 WL 1007859, at
*6
;
Gravolet
v.
Tassin,
2009 WL 1565864,at *4 (E.D.La. Jun. 2,2009).
Glik,
moreover,is inapposite.
Glik
did not hold that there is a First Amendment right to audio recordconversations with or between unconsenting government officials;rather,the issue there was whether there was a right to video record police officers in the course
of
making an arrest.
Glik,
655 F.3d at 80.Furthermore,
Glik
involved openly recording the officers in their plain
view
.Id.
The instant case involvedthe defendant surreptitiously recording a telephone conversation with an assistant administrator at the CookCounty Court Reporter's Office. Mrs. Taylor was never informed
of
the recording,nor did she consent.Defendant further contends that the statute is unconstitutional because it places greater prohibitionson recordings made by civilians than it does on recordings made by police officers. Def. Mot.
6.
Withoutlegal or evidentiary support, defendant concludes that this difference in treatment between civilians and lawenforcement leads to speaker-based discrimination. Def. Mot.
6.
However,the prohibition on recording
,..,
-
.)
-

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