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