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JANDAK v. VILLAGE OF BROOKFIELD

August 12, 1981

SUSAN JANDAK, PLAINTIFF,
v.
THE VILLAGE OF BROOKFIELD, PAUL J. SCHMIDT, INDIVIDUALLY AND AS CHIEF OF POLICE OF THE VILLAGE OF BROOKFIELD, ILLINOIS, JOHN DOE, RICHARD ROE, AND OTHER UNKNOWN AGENTS OF THE DEPARTMENT OF POLICE OF THE VILLAGE OF BROOKFIELD, DEFENDANTS.



The opinion of the court was delivered by: Leighton, District Judge.

  Memorandum

The novel issue presented by the unusual circumstances of this case is whether the tape recording of a personal telephone call placed by an on duty police officer on regularly recorded police lines violates Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2510-2520. Plaintiff Susan Jandak, recipient of the call, seeks actual and punitive damages from defendants Village of Brookfield and Paul J. Schmidt, the village's Chief of Police. The cause is before the court on defendants' motion for summary judgment, presenting numerous arguments, many of which reflect common misconstructions of the statute, and almost all of which lack merit. Nevertheless, for the reasons stated below, the court concludes that defendants are entitled to summary judgment. Except where otherwise noted, the facts set forth below are undisputed, including all facts necessary for disposition of this motion.

I

Fred and Susan Jandak were married in 1967, and evidently had been experiencing marital difficulties for some time before the events giving rise to this litigation took place. In 1977, Fred came to the conclusion, which later evidence verified, that Susan was having an affair with Thomas J. Capaccio, a police officer for the Village of Brookfield. On January 1, 1978, an argument occurred between Fred and Capaccio at the Jandak residence, and Fred reported the disturbance to the Brookfield Police Department. Two days later, on January 3, 1978, Fred visited defendant Schmidt, Chief of Police, and requested him to intervene to prevent Tom from seeing Susan. Schmidt agreed to investigate.

Fred told Susan about his conversation with Schmidt and, later in the day, saw Capaccio's squad car in front of their home. This too he reported to Schmidt, who went to the Jandak's house, by which time the car was gone. When back at the police station, Schmidt noticed that Capaccio was on the phone, called Fred on another line, and asked him to call home to see whether the line was in use. Fred reported back that his line was busy. Schmidt, concluding that Capaccio was talking with Susan, directed his communications officers to log the time of the call. This one call, placed by Capaccio to Susan on January 3, 1978, gives rise to the litigation.

Capaccio began working at the police department in November, 1974. His initial training included work as a communications officer, and he was assigned to the communications desk intermittently as part of his regular duties until he left the department in 1979. He had been assigned to the desk for a total of seventy-five days during the year preceding January 3, 1978. The tape recording equipment is contained in a cabinet near the communications desk, and one of the responsibilities of the officer manning that desk is to periodically change the tape.

Schmidt states, in an affidavit filed in support of the earlier motion to dismiss, that all police officers assigned to the communications desk are intimately familiar with the recording equipment. Schmidt indicated in his deposition that it was common knowledge that the line used by Capaccio was tape recorded. He also explained that which lines are recorded is designated on the inside face of the bottom panel of the tape recording equipment. Capaccio responds, in his affidavit, that his duties as Desk Officer required only that he change the tapes, which was a very brief operation. He states that he never listened to them, was not familiar with the care, maintenance or functioning of the equipment, and that there was no designation indicating which lines were being recorded. In his deposition, he specifically denies seeing any such designation. He believed that the only lines which were recorded were those equipped with warning devices, and selected the line he used to call Susan Jandak because he believed it was not recorded, since it had no warning device. He also notes that the same line is provided to persons in custody for communicating with friends, family and counsel, a fact confirmed in Chief Schmidt's deposition.

Immediately after Capaccio completed the call to Susan, Chief Schmidt directed that the tape be removed. He contacted Jack Preston, Village Attorney at the time, and together they listened to a portion of the tape. Schmidt's secretary then transcribed the taped conversation. The tape and transcript were kept by Schmidt in a locked drawer, and he states that no one else saw them. Though Susan claims that the tape was played for others, she has offered only remote circumstantial evidence which could be otherwise explained.

That evening, Schmidt summoned Capaccio and suspended him for five days for violation of village and departmental regulations, specifically for conduct unbecoming an officer during the incident at the Jandak residence on January 1, and for use of the police phone for personal business. Capaccio appealed the suspension, and a public hearing was held before the Brookfield Board of Fire and Police Commissioners. After plea bargaining, Capaccio agreed not to contest the suspension. The tape was not played at the hearing, and afterwards it was erased and reused. The transcript was also destroyed. Susan Jandak filed this suit on April 25, 1979, just over one year later.

II

Susan claims that defendants' tape recording and alleged replaying of her personal conversation with Capaccio resulted in her humiliation and embarrassment, and violated Section 2511 of the statute, which prohibits, in relevant part, any person from willfully intercepting a wire communication. 18 U.S.C. § 2511. She brings suit pursuant to Section 2520, which provides a civil remedy of actual damages, punitive damages and attorney's fees and costs for any person whose communication is intercepted in violation of the statute. Other relevant sections, limiting the scope of the statute, are discussed below as required for consideration of the issues raised by defendants.

Congress enacted Title III for the dual purpose of protecting the privacy of wire and oral communications, and delineating the conditions under which such communications may be intercepted. S.Rep. No. 1097, 90th Cong., 2d Sess. (1968), reprinted in 1968 U.S. Code Cong. & Admin. News, pp. 2112, 2153 (hereinafter "Senate Report"). Title III is part of a crime control act, and its major focus is to clarify the confusion in the law governing surveillance and wiretaps by law enforcement officials by providing procedures for the use of electronic interception in combating criminal activities, particularly organized crime. Senate Report, Id. at 2153-7; Simpson v. Simpson, 490 F.2d 803, 806 (5th Cir.), cert. den. 419 U.S. 897, 95 S.Ct. 176,42 L.Ed.2d 141 (1974); Briggs v. American Air Filter Co., Inc., 630 F.2d 414 (5th Cir. 1980). Nevertheless, Congress was also concerned with the potential for widespread abuse of ...


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