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AMATI

August 10, 1993

Charles Amati, Carol Bolda, Brian C. Brucher, Edward R. Burton, Peggy K. Burton, Jennifer L. Ciesielski, James M. Davis, John Doe, a minor by his next friend, Steven Gorski, Jeffrey Gosselink, Carol Gulledge, Wally B. Hajost, Diane L. Hajost, Bruce R. Hillstrom, Esther K. Hohol, Vincent M. Hohol, John J. Hohol, Jr., John J. Hohol, Norma A. Jacobs, Robert A. Jacobs, john E. Jasper, Valerie A. Johns, Richard M. Johns, John B. Johnson, Wendy Johnson, Steven J. Karolewicz, Robin L. Karolewicz, Karen A. Karpavicius, Donna Karpavicius, Ann M. Kerr, Timothy R. Kerr, Elaine Klimczak, Robert G. Klimczak, James W. Koura, Daniel E. Latham, Dana L. Latham, Dennis E. Leard, Donald E. Madsen, Michael J. McCleary, Michael P. McCluskey, Laura A. Miller, Robert Minerly, Anthony H. Olszewski, Mary Jo Olszewski, Theodore E. Pierce, Joan Pierce, Thomas B. Porter, Peggy J. Porter, Shiela R. Readel, Jeffrey J. Rhode, JoAnn Richards, Cindy Schultz, Stanley Schultz, Vickie Spitzer, Kathi Taylor, Yvonne Vasquez, Dilia Vasquez, Louis Vasquez, Jr., Louis Vasquez, Plaintiffs, Charles Amati, Anthony J. Olszweski, and Louis Vasquez, as Representatives of the Absent Class Members,
v.
The City of Woodstock, Illinois, a municipal corporation, Herbert J. Pitzman, individually and as Chief of Police of the Police Department of the City of Woodstock, and Randall Beu, Defendants.



The opinion of the court was delivered by: PHILIP G. REINHARD

 INTRODUCTION

 On November 25, 1992, plaintiffs filed a 28-count complaint against defendants, the City of Woodstock, Illinois (city), Herbert J. Pitzman, individually and as the Chief of Police of the City's police department, and Randall Bern, a City police officer. Counts 1, 2, 11, 12, 21, 23 and 24 arise under the Omnibus Crime Control and Safe Streets Act, 18 U.S.C. § 2510 et seq., (Crime Control Act) and the court has jurisdiction over these counts pursuant to 28 U.S.C. § 1331. Counts 3, 4, 13, 14 and 25 arise under the Civil Rights Act of 1871, 42 U.S.C. § 1983, and the court has jurisdiction over these claims pursuant to 28 U.S.C. §§ 1331, 1343. In Counts 5, 6, 15, 16 and 26 plaintiffs present claimed violations of the Illinois Constitution, Article I, section 6. *fn1" In Counts 7, 8, 17, 18 and 27 plaintiffs allege a violation of their right to privacy, giving rise to the common law tort of intrusion into plaintiffs' seclusion. Counts 9, 10, 19, 20, 22 and 28 arise under the Illinois Eavesdropping Act, 720 ILCS 5/14-1 to -9 (1993). The court has supplemental jurisdiction over the state law claims in Counts 5-10, 15-20, 22 and 26-28 pursuant to 28 U.S.C. § 1367.

 Each defendant has filed a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6). The court will address the three motions herein.

 FACTS2

 DICTAPHONE RECORDER.

 The recorder is now hooked up and in full operation.

 
* * *
 
As you know, all the telephone lines are taped with the exception of 338-7799. The line was intentionally left untaped to allow for personal calls * * *.
 
This policy will take effect immediately and be strictly adhered to.

 (Compl. P 5, Exh. A).

 Plaintiffs offer evidence showing this practice was still in effect as of January 2, 1988 (See Compl. Exh. B). According to plaintiffs, at all relevant times they believed telephone communications made on the private line were not intercepted by a mechanical or electronic device. However, in June 1991, Pitzman sought and received authorization from the City Manager, Dennis Anderson, to surreptitiously wiretap the private line. This practice of intercepting calls on the private line continued until October 1992 when the private line was disconnected. In August 1992, Pitzman told plaintiff Vasquez that the police department had been intercepting telephone calls on the private line since June 1991. This was the first notice to plaintiffs that the City's "official" policy had been abandoned.

 DISCUSSION

 I. THE CITY'S MOTION TO DISMISS

 A. Count 1

 In Count 1, plaintiffs maintain the City violated section 2511(1)(a) of the Crime Control Act, 18 U.S.C. § 2511(1)(a), *fn3" in that the City intentionally intercepted telephone communications made by plaintiffs on the private line. The City argues the Crime Control Act is inapplicable to municipalities. According to the City, the Crime Control Act does not include a municipal corporation within its definition of "person." Plaintiffs argue a later amendment to the Crime Control Act altered the meaning of "person" to include municipalities within its ambit.

 According to section 2511(1)(a), "except as otherwise specifically provided in this chapter any person - (a) who intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication" shall be found in violation of the statute. (emphasis added). 18 U.S.C. § 2510(1)(a) (Supp. 1993). "Person" is defined as "any employee, or agent of the United States or any State or political subdivision thereof, and any individual, partnership, association, joint stock company, trust, or corporation[.]" 18 U.S.C. § 2510(6) (1970). The City notes that when Congress originally enacted the Crime Control Act, it specifically mentioned the exclusion of governmental units. In commenting on the definition of "person," Congress notes the definition's applicability to the entire chapter, and states:

 
The definition explicitly includes any officer or employee of the United States or any State or political subdivision of a State. But see Pierson v. Ray, 87 S. Ct. 1213, 386 U.S. 547, 18 L. Ed. 2d 288 (1967). Only the governmental units themselves are excluded. Compare Monroe v. Pape, 365 U.S. 167, 81 S. Ct. 473, 5 L. Ed. 2d 492 U.S. (1961); Williford v. California, 352 F.2d 474 (9th 1965). Otherwise the definition is intended to be comprehensive.

 S. Rep. No. 1097, 90th Cong., 2d Sess. (1968), reprinted in 1968 U.S.C.C.A.N. 2112, 2179. Historically, courts have interpreted sections 2510(6) and 2520 to exclude governmental units from liability under the Crime Control Act. See Spock v. United States, 464 F. Supp. 510, 513-14 n.4 (S.D.N.Y. 1978).

  Plaintiffs argue the Electronic Communications Privacy Act of 1986 (Privacy Act of 1986), 18 U.S.C. § 2701 et seq., amended the Federal wiretapping Act to authorize recovery of civil damages against any person or entity. *fn4" According to section 2520, "any person whose wire, oral or electronic communication is intercepted, disclosed, or intentionally used in violation of this chapter may in a civil action recover from the person or entity which engaged in that violation such relief as may be appropriate." 18 U.S.C. § 2520 (a) (Supp. 1993). Plaintiffs argue inclusion of "entity" within section 2520(a) means Congress intended victims to be able to recover from governmental units.

 The starting point for interpreting a statute is the language of the statute itself. Milwaukee Gun Club v. Schulz, 979 F.2d 1252, 1255 (7th Cir. 1992). Absent a clearly expressed legislative intent to the contrary, the statutory language must be regarded as conclusive. Schulz, 979 F.2d at 1255. If the statutory language is clear, it is unnecessary to look beyond that language to interpret the statute. Schulz, 979 F.2d at 1255. The court must not only look to the particular statutory language at issue but also to the language and design of the statute as a whole. Schulz, 979 F.2d at 1255.

 In the present case, the statute at issue contains a definition of person which expressly excludes local governmental entities. See 18 U.S.C. § 2510(6). While the Congressional comment regarding this provision cites to Monroe v. Pape, 365 U.S. 167, 5 L. Ed. 2d 492, 81 S. Ct. 473 (1961), such legislative history is of no consequence in light of the plain language of section 2510(6). The definition of person contained in section 2510(6) was intended to be applied chapter-wide. See 18 U.S.C. § 2510. Furthermore, section 2520, the remedial portion of the Crime Control Act, originally provided for recovery of civil damages against "any person who intercepts, discloses, or uses * * * such communications." ...


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