1983 action, plaintiffs would be foreclosed from recovering against the City at all in the instant case. Previously (see Part II, A supra), the court determined municipalities were not proper defendants under the Federal Wiretapping Act. If the court were to also find the Federal Wiretapping Act preempts section 1983 claims, the City would be able to indiscriminately wiretap oral, wire and electronic communications without fear of liability. The court does not believe Congress intended such a result, despite the City's contention that such a result would not be "stunning." The Supreme Court's holding in Monell was clear: municipalities are not immune from section 1983 liability. For this reason, the court is unpersuaded by the City's argument that a section 1983 action would undermine Congress' plan as set forth in the Crime Control Act.
Additionally, there is a general presumption against congressional repeals of prior statutes by implication. Samuels v. District of Columbia, 248 U.S. App. D.C. 128, 770 F.2d 184, 194 n.7 (D. D.C. 1985). "Such repeals are strongly disfavored on the ground that Congress is normally expected to be aware of its previous enactments and to provide a clear repeal if it intends to extinguish an extant remedy." Samuels, 770 F.2d at 194 n.7. "Section 1983, standing alone, cannot withstand preemption by a more comprehensive statutory remedy designed to redress specific unlawful actions, . . . unless the statute in question manifests a congressional intent to allow an individual a choice of pursuing independently rights under both the statutory scheme and some other applicable federal statute." Zombro v. Baltimore City Police Dep't, 868 F.2d 1364, 1367 (4th Cir.), cert. denied, 493 U.S. 850, 107 L. Ed. 2d 106, 110 S. Ct. 147 (1989). A comprehensive remedial framework specifically designed to redress a victim's alleged grievances evidences congressional intent to foreclose a section 1983 action. The court disagrees with the City's contention that the Federal Wiretapping Act is such a comprehensive statute. It is true the Federal Wiretapping Act contains specific, detailed provisions regulating the interception of wire, oral or electronic communications. See, e.g., 18 U.S.C. § 2518 (Supp. 1993). However, the Federal Wiretapping Act does not contain particularized administrative conciliation and mediation procedures for redressing grievances. See 18 U.S.C. § 2520 (Supp. 1993) (authorizing damages, equitable relief and/or costs); compare with Sea Clammers, 453 U.S. at 15, 23 (after reviewing the elaborate enforcement provisions found in the Federal Water Pollution Control act, court concluded Congress could not have intended for litigants to bypass this comprehensive enforcement scheme by bringing suit directly under section 1983).
The court also rejects the City's attempt to reclassify plaintiffs' section 1983 claim as one arising out of a Fourteenth Amendment violation rather than a Fourth Amendment violation. In their complaint, plaintiffs allege the Fourth and Fourteenth Amendments guarantee plaintiffs the right to be free of unreasonable searches and seizures. Because the Fourth Amendment speaks of searches and seizures, the court understands plaintiffs to be alleging a Fourth Amendment violation and mentioning the Fourteenth Amendment only as the conduit through which the Fourth Amendment applies to the statutes. See Mapp v. Ohio, 367 U.S. 643, 6 L. Ed. 2d 1081, 81 S. Ct. 1684 (1961).
C. Count 5
In Count 5, plaintiffs allege the City's warrantless interception of their telephone communications constitutes a violation of plaintiffs' rights under Article I, section 6 of the Illinois Constitution.
The City argues plaintiffs may not bring a direct action based on Article I, section 6.
When addressing a state law claim, a federal district court in Illinois is bound to follow Illinois Supreme Court interpretations. Shields Enter s ., Inc. v. First Chicago Corp., 975 F.2d 1290, 1297 (7th Cir. 1992). And, absent authoritative statements from the Illinois Supreme Court, the district court is bound to follow Illinois Appellate Court interpretations of state law absent a good reason to think the Illinois Supreme Court would reject the appellate court's decision. Shields, 975 F.2d at 1297.
The court finds no Illinois case directly addressing the issue of whether a person can maintain a direct cause of action for improper eavesdropping under Article I, section 6 of the Illinois Constitution. While the parties both refer to Newell v. City of Elgin, 34 Ill. App. 3d 719, 340 N.E.2d 344 (2d Dist. 1976), that case did not reach the issue. In Newell, the plaintiff filed a multi-count complaint, one count (Count 3) of which was based on an illegal search under both Article I, section 6 and the Fourth Amendment to the United States Constitution. Newell, 34 Ill. App. 3d at , 340 N.E.2d at 346-47.
Even though the court held that Count 3 stated a cause of action, it never expressly discussed the appropriateness of maintaining that count under Article I, section 6. Rather, the court discussed the efficacy of Count 3 in terms of the Fourth Amendment and Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 29 L. Ed. 2d 619, 91 S. Ct. 1999 (1971). (Newell, 34 Ill. App. 3d at , 340 N.E.2d at 348-49.) Newell simply does not stand for the proposition that there is a direct cause of action available under Article I, section 6 of the Illinois Constitution.
Nevertheless, the court finds significant guidance on the issue in the Illinois Constitution, the official commentary thereto and Illinois case law. As noted above, Article I, section 6 provides a right to be free from "interceptions of communication by eavesdropping devices." The commentary to Article I, section 6 states that "section 12 supplements Section 6 by providing that every person shall find a remedy for all injuries and wrongs which he receives to his 'privacy.'" Article I, section 12 provides that "every person shall find a certain remedy in the laws for all injuries and wrongs which he receives to his * * * privacy." The commentary to section 12 states, in pertinent part, that section 12 "adds, for the first time, the assurance that a person who receives an injury or a wrong for 'invasion of privacy' shall have a remedy. More importantly, the commentary refers to Ill. Rev. Stat. ch. 38, § 14-6 (1969) as already providing a criminal
remedy for invasion of privacy by eavesdropping as defined in that statute. (emphasis added.) The importance of this part of the commentary is that eavesdropping is considered a type of privacy invasion, and, thus, persons are entitled to a remedy under the remedial scheme of Article I, sections 6 and 12.
That does not completely answer the question of whether a party can bring a direct cause of action for improper eavesdropping under Article I, section 6, however. Illinois courts have interpreted section 12 of Article I to set forth a clear mandate to the courts that "whenever the legislature has failed to provide a remedy, the judiciary must do so." See, e.g., Yount v. Hesston Corp., 124 Ill. App. 3d 943, , 80 Ill. Dec. 231, 464 N.E.2d 1214, 1218, 124 Ill. App. 3d 943, 80 Ill. Dec. 231 (2d Dist. 1984). As to improper eavesdropping, the Illinois General Assembly has provided a legislative remedy applicable to this case. Specifically, section 14-6 of the Criminal Code of 1961 provides a comprehensive civil damage scheme including actual and punitive damages, for "any or all parties to any conversation upon which eavesdropping is practiced contrary to this Article." 720 ILCS § 5/14-6 (1993). Additionally, the statute proscribes use of an eavesdropping device to hear or record all or part of any conversation or use or disclosure of any information obtained through eavesdropping. 720 ILCS § 5/14-2 (1993). Thus, under the foregoing statutory scheme, plaintiffs are entitled to maintain an action for civil damages based on the alleged conduct at issue in this case.
Because plaintiffs have a potential remedy sufficient to compensate them for any proved wrongs arising out of the alleged eavesdropping, the court believes that an Illinois court considering the issue in light of the facts of this case would not recognize a right to bring a separate action under Article I, section 6 of the Illinois Constitution.
Finally, the court finds plaintiffs' reliance on Rodgers v. St. Mary's Hospital of Decatur, 149 Ill. 2d 302, 597 N.E.2d 616, 173 Ill. Dec. 642 (1992) misplaced. The Rodgers court addressed the issue of whether a particular statute granted the plaintiff a private cause of action by implication. Rodgers, 149 Ill. 2d at , 597 N.E.2d at 619. The Rodgers case is sufficiently distinguishable to have no applicability to the issue before this court. Count 5 is accordingly dismissed.
II. Pitzman's Motion to Dismiss
A. Count 11 - "Intercept"
Pitzman argues, except as to plaintiffs Amati and Hillstrom, that plaintiffs' complaint contains no allegations that the communications purportedly taped were ever heard by anyone other than the intended participants. Absent such an allegation, Pitzman contends, there was no "interception" within the meaning of the Crime Control Act.
The Crime Control Act defines "intercept" to mean "the aural or other acquisition of the contents of any wire, electronic, mechanical, or other device[.]" 18 U.S.C. § 2510(4) (Supp. 1993); United States v. Shriver, 989 F.2d 898, 902 (7th Cir. 1992). In United States v. Turk, 526 F.2d 654, 657-58 (5th Cir.), cert. denied, 429 U.S. 823, 50 L. Ed. 2d 84, 97 S. Ct. 74 (1976), the Fifth Circuit addressed whether a recorded communication constitutes an interception within the meaning of the statute or whether the police officers subsequent replaying of the cassette tape constituted an "interception." The Fifth Circuit had no problem concluding a drug dealer's action in recording his conversation of a cohort was an "interception." Turk, 526 F.2d at 657.
The Fifth Circuit believed the word "acquisition" suggests the central concern of the statute is the activity engaged in at the time of the communication which causes the communication to be overheard by uninvited listeners. Turk, 526 F.2d at 658. The court states,