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David Protess

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He Fought the Law -- And the Law Lost

Posted: 03/ 6/2012 9:41 am

On a blustery December afternoon in 2009, Chicago artist Chris Drew set out to break a municipal ordinance to make a point: the City was unfairly restricting the sale of artwork. Two cops obliged Drew by arresting him on misdemeanor charges as he hawked $1 art prints on State Street near Macy's holiday window displays. Led away without incident, Drew could not have imagined that he would end up challenging a dramatically different law -- one that threatened to land him behind bars for 15 years.

In court a week later, State's Attorney Anita Alvarez's prosecutors dropped the misdemeanor peddling case and instead charged Drew with violating the Illinois Eavesdropping Act, a felony. Drew's crime: audio-recording his own arrest. Never mind that the arrest had happened in a public place by law enforcement officers performing their official duties. By recording the cops' voices without their permission, Drew had broken a rarely enforced state law that treated offenders more harshly than many violent criminals.

Even a maverick like Drew knew when he was in deep water, so he turned to attorney Joshua Kutnick for pro bono assistance. After more than two years of legal wrangling, Kutnick persuaded Criminal Courts Judge Stanley Sacks to put an abrupt halt to the proceedings. Last Friday, the judge declared the eavesdropping law unconstitutional.

Judge Sacks ruled that the law was too broad and potentially criminalized "wholly innocent conduct." Among the abuses hypothesized by the judge: the prosecution of a parent who recorded her child's soccer game and inadvertently captured a conversation between two bystanders. Could Soccer Mom be sent to the slammer?

Indeed, the judge's example was not far-fetched. In 2010, Tiawanda Moore was charged with illegally recording a conversation with two Chicago cops who discouraged her from reporting a fellow officer's alleged sexual advances. Alvarez's prosecutors wanted Ms. Moore imprisoned for the recording -- not the cops for obstructing justice. But a jury last year deliberated less than an hour before acquitting Moore, who promptly sued the police department and the city.

Undeterred by her failed eavesdropping prosecutions, Alvarez announced late Friday that she would appeal Judge Sacks' ruling to the Illinois Supreme Court. So, Drew isn't off the hook quite yet.

***

I caught up with Chris Drew yesterday, finding him unexpectedly subdued for a man who had just beaten the County's law enforcement establishment.

"I am subdued, partly because I set myself up emotionally for [the case] to go the other way," he told me. "But second, this is the beginning of a long fight."

For the 61-year-old resident of the Rogers Park neighborhood on Chicago's North Side, the fight was brewing after Mayor Harold Washington's death in 1987. That's when Drew realized that city officials were increasingly banning art from parts of the Loop where other forms of free expression were tolerated. "The real issue for me is less about eavesdropping than the right of the artist and his art to be seen, heard and shown in public," Drew said. "That's what the First Amendment is about, just as much as free speech."

Not that fighting the eavesdropping law hasn't become an adopted cause for the self-described activist. Drew assumed when he was busted for peddling in front of Macy's in 2009 that he'd be released in a few hours. Instead, he was locked overnight in a "freezing cell" at police headquarters, then transported to the County Jail, where he was informed that he'd been charged with felony eavesdropping. After two more nights, he was released on a $20,000 bond, the required ten percent having been posted by his wife, Deborah Drew.

Besides Deborah, Chris' support system for the unexpected legal ordeal included his volunteer lawyers (Mark Weinberg signed on to contest the peddling ordinance before Kutnick defended the eavesdropping case), several friends and his "team-mates" -- a quartet of like-minded artists.

Despite his independent spirit, Drew has needed all the support he could get. A year ago, he was diagnosed with lung cancer. The radiation treatments and two rounds of chemotherapy left him exhausted, but did not break his resolve. When prosecutors offered him a deal to plead guilty in exchange for a lesser sentence, Drew "declined with a smile."

Asked what the experience says to him about Cook County law enforcement, he firmly calls it "corrupt from top down." State's Attorney Anita Alvarez? "She has a corrupt hidden agenda -- to keep criticism to as little as possible. To silence the critic." Yet Drew was delighted to hear that Alvarez would appeal Judge Sacks' ruling in his case. "I hoped she would. I want this case... at the Illinois Supreme Court," he said.

In addition to a favorable ruling from the state's highest court, Drew hopes that the federal courts will declare the eavesdropping law unconstitutional on First Amendment grounds. A lawsuit by the ACLU that prominently cites Drew's case is before the Seventh Circuit. A ruling is expected soon. And, Springfield lawmakers seem poised to re-write the statute to eliminate the language that caught Drew in its web.

But with all the legal developments swirling around him, Drew's primary focus is unchanged: to reform the municipal laws that, he firmly believes, frustrate artistic expression. "I've been looking at this whole series of events as a prelude to suing the city over the peddler's license," he declared.

To that end, attorney Weinberg plans to file a federal lawsuit by May 1 to challenge the constitutionality of the city's regulations on the display and sale of art. "The words 'democracy' and 'artistry' are at odds with each other in Chicago," Drew says. Instead, they should go hand in glove.

Will he get arrested again to trigger the lawsuit?

Drew pauses. "I don't think that will be necessary. At least I hope not."