Michael Allison’s  Illinois eavesdropping charge was dismissed.  In Chicago,  Tiawanda Moore was acquitted of eavesdropping.  So life is good and the craziness of charging citizens with eavesdropping for recording police in the public performance of their duty is behind us? 

Not yet.

A senior appeals court judge said Tuesday that if Illinois’ eavesdropping law were expanded, gang bangers and “snooping” reporters would run rampant, secretly recording conversations unchecked.

“If you permit the audio recordings, they’ll be a lot more eavesdropping. … There’s going to be a lot of this snooping around by reporters and bloggers,” U.S. 7th Circuit Judge Richard Posner said. “Yes, it’s a bad thing. There is such a thing as privacy.”

This isn’t some nutty state court badge-licking judge pandering to get the cop union endorsement for his next election run.  This is Richard Posner.

Posner, considered one of the most influential jurists on the appeals panel, made his comments Tuesday morning as the Illinois American Civil Liberties Union argued to change current law to make it legal to audio record public officials in public areas.

On the one hand, most of us appreciate Judge Posner’s concern for privacy.  We like privacy.  We want privacy.  We appreciate privacy.  But we want it for ordinary citizens, for us, to maintain our privacy from governmental intrusion.  That’s not the privacy that Judge Posner is talking about. 

Judge Posner’s privacy concern is for police and government officials, their “such thing as privacy” while serving in their governmental function, while working on the public’s dime.  He speaks to privacy of public officials to be free from “snooping around by reporters and bloggers.” 

For generations (if not centuries), allegations of misconduct have been leveled against law enforcement, and summarily dismissed.  The analysis was always the same: Who can believe the defendant, the person accused of a crime, when compared to a police officer, sworn to protect and serve.  The win/loss ration was always the same. The defendant loses.

Video changed everything.  For a few years now, I’ve run an occasional series of posts entitled “But for Video.”  The gist of the title is that if it were not for the existence of video evidence proving police abuse and misconduct, no one would believe it ever happened.  No judge. No prosecutor. Maybe not even me.  But for video, the outrageous lies, the horrific beatings, would never be known. 

And Judge Posner thinks this is a bad thing?

Will there be “snooping,” a derogatory word that substitutes for investigation if one wasn’t inclined to be dismissive, of cops and public officials?  Sure.  And if they’re doing things that they shouldn’t be doing, then a whole lot of snooping ought to be going on.  If the snooping produces nothing interesting, then there won’t be as much snooping.  And if the snooping happens to show some cops beating up a cuffed defendant or nice, law-abiding person with a video camera, then we won’t be confronted with that either. 

The dismissal of Allison’s charges, and the acquittal of Moore, certainly reflect an enormously positive trend in the prosecution of citizens for creating evidence of law enforcement impropriety.  The concern of Judge Posner, on the other hand, reflects a judicial perspective that elevates the privacy of law enforcement over transparency and integrity.  He doesn’t want to know the truth. 

The truth can be ugly and difficult to deal with.  It was so much easier all those years when judges just adopted whatever a cop said and rejected the defendant’s claims of abuse.  So what if the defendant shows up for arraignment with a broken nose and the only injury to the cop was a scuff mark on the toe of his boot. 

“Why would Officer Smith want to hurt this defendant, a person he doesn’t know and against whom he holds no grudge?”  This argument has been effectively used thousands of times, and it’s a darn good one.  And yet the videos show it happens anyway.  “Why” is a great question.  “Why” indeed?  Ask the cop “why.”  We only know it happened, and we can only prove it because there’s a video.

It would seem that the myriad videos conclusively proving that cops do engage in impropriety, beatings, abuse, lies, would have some impact on the collective consciousness, including judges.  It would seem that given how far we’ve come in having conclusive proof that judges could no longer dismiss allegations by defendants that they were the victims and not the perpetrators.  It would seem that no jurist who has the slightest concern for the integrity of the legal system, the honesty of law enforcement, the welfare of the public, would want to return to the days when we pretended that none of this ever happened.

And yet Judge Richard Posner’s concern for the privacy of police in the performance of their official duties weighs more heavily on his mind than does his concern for the public.

This is a bad thing.