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ABBOTT v. VILLAGE OF WINTHROP HARBOR

December 10, 1996

JODIE S. ABBOTT, et al., Plaintiffs,
v.
THE VILLAGE OF WINTHROP HARBOR, et al., Defendants.



The opinion of the court was delivered by: COAR

 Defendant Kenneth B. Miller, individually and in his official capacity as Chief of Police for the Winthrop Harbor Police Department, has filed a motion for summary judgment on counts 9, 11, 13, 15, and 18 *fn1" of the Plaintiffs' Complaint. The Complaint arises out of the alleged placement of a recording device on a "private" telephone line at the Winthrop Harbor Police Department. Judge Marovich previously dismissed counts 2, 4, 6, 8, 10, 12, 14, and 16 by granting a motion made by the Defendants to deny class certification. *fn2" This court subsequently dismissed count 7 based on the arguments made in the first motion to dismiss. *fn3"

 Background

 The Village of Winthrop Harbor maintains the Winthrop Harbor Police Department (the "Police Department" or the "Department") and employed defendant Kenneth Miller ("Miller") as Chief of Police at all times relevant herein. The Plaintiffs are either current or former employees of the Winthrop Harbor Police Department, or non-employees who engaged in at least one conversation over a certain telephone line. (Complaint P 7).

 At all times relevant herein, the Police Department maintained a telephone system for communications to and from the Department. (Id. at P 3). Several of the Police Department's phone lines were used in the ordinary course of the Department's business, and were at various times recorded by an electronic or mechanical device. The Court will refer to these lines as the "Tapped Lines."

 
1. 9-1-1 is now on line, all phones except 746-3868 are being recorded and all radios are being recorded. When placing a phone call that is police related it will be done on a recorded line.

 (Id.). The memorandum was written on Winthrop Harbor Police Department stationery, signed by Miller, and addressed to "All Police Personnel" regarding "Information." (Complaint P 5).

 On or about August 1992, defendant Kenneth Miller caused a recording device that surreptitiously recorded all communications made on 3868 to be installed. (12(M) P 10). Every thirty days the recorded 3638 communications were erased. (12(M) P 29). The device remained installed and the recording of private communications continued until approximately May 1993. (Complaint P 10). From August 1992 to May 1993, the Plaintiffs had one or more conversations transmitted on the 3868 with each other or with third parties. (Plaintiffs' Rule 12(N) Statement in Response to Motions for Summary Judgment by the Village of Harbor and Kenneth Miller ("12(N)") P 4). Plaintiffs believed that their conversations were not recorded. (Id. P 8). Also during that time, arrestees held at the Police Department were instructed to use the Private Line to make their personal phone calls. (12(N) P 6).

 At or around the time that Miller caused the recording device to be installed, he contacted the village attorney, Perry Smith, to discuss whether he, Miller, was required to install an additional device which would emit a beep so as to inform the users of 3868 that their communications were being recorded. (12(M) PP 1, 11; Deposition of Kenneth B. Miller ("Miller Depo.") p.65). According to Miller, Smith responded that anyone calling the police department should assume that the calls were being taped. (12(M) P 16). Smith denies this allegation and maintains that he informed Miller that Miller was required by law to give the users of 3868 notice of the recording and to install a beep tone. (12(N) P 20; Smith Depo. p. 20). Neither Miller nor anyone else *fn4" informed the Plaintiffs that, as of August 1992, their calls on the Private Line were being recorded or of a change of policy regarding the Private Line. (12(M) P 15; Id. P 11). Indeed, the Plaintiffs were informed and believed that their calls placed on 3868 were private, unmonitored communications. (12(N) PP 1, 31; Id. PP 8). The parties dispute whether there was a beep tone on 3868. (See 12(M) PP 20-27; 12(N) P 3).

 In addition, during the months of August 1992 to May 1993, Miller instructed Georgene Ortiz ("Ortiz"), Supervisor of Communications for the Department, to listen to and copy the communications of plaintiff Jodie Abbott ("Abbott") and other plaintiffs who made phone calls on 3868. (Id. P 12). The Plaintiffs allege that Miller also listened to various recorded communications made on 3868 by plaintiff Abbott and other plaintiffs. (Id. P 14).

 In November or December of 1992, James Greene, a plaintiff and employee in the Police Department, observed Howard Thomas, an employee at the Department, wearing earphones and Ortiz transcribing Abbott's recorded communication. (12(N) P 27). Ortiz admits to transcribing private communications made by Abbott on 3868. (12(N) P 28, 29). In January 1993, Greene began to suspect that Miller was recording and listening to Green's private communications on 3868 because Miller allegedly exhibited personal knowledge of private communications to which Miller was not a known party. (12(N) P 25).

 The Plaintiffs allege that the defendant Miller's surreptitious recording of their conversations violated the Omnibus Crime Control and Safe Streets Act, 18 U.S.C. § 2511(1)(a) ("Title III"), the Fourth and Fourteenth Amendments under Civil Rights Act of 1871, 42 U.S.C. § 1983 ("§ 1983"), the Illinois Eavesdropping Act, and the Illinois common law right to privacy. Miller moves for summary judgment on counts 9, 11, 13, 15, and 18 on grounds of immunity and the Plaintiffs' alleged failure to prove an essential element of their claim.

 Legal Standard for Summary Judgment

 Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, admissions and affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56; Hedberg v. Indiana Bell Telephone Co., Inc., 47 F.3d 928 (7th Cir. 1995); Wainwright Bank & Trust Co. v. Railroadmens Fed. Sav. & Loan Ass'n of Indianapolis, 806 F.2d 146, 149 (7th Cir. 1986). The movant has the burden of establishing that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). The primary inquiry is whether the evidence presents a sufficient disagreement to require a trial, or whether it is so one-sided that one party must prevail as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). If the moving party meets this burden, the nonmoving party must then respond by setting forth specific facts which demonstrate the existence of a genuine issue for trial. Fed. R. Civ. P. 56(e); Posey v. Skyline Corp., 702 F.2d 102, 105 (7th Cir.), cert. denied, 464 U.S. 960, 78 L. Ed. 2d 336, 104 S. Ct. 392 (1983); see Curtis v. Bembenek, 48 F.3d 281 (7th Cir. 1995). All reasonable inferences from the record are to be drawn in favor of the nonmoving party. Johnson v. Runyon et al., 47 F.3d 911 (7th Cir. 1995); Donovan v. City of Milwaukee, 17 F.3d 944, 947 (7th Cir. 1994).

 Discussion

 I. Qualified Immunity: Counts 9, 11, & 18

 Defendant Miller asserts the affirmative defense of qualified immunity against each and every named plaintiff as to count 9, which alleges violations of Title III, and count 11, which alleges violations of the Fourth and Fourteenth amendments under § 1983. In addition, Miller maintains that he is entitled to qualified immunity against plaintiff Abbott, individually, on count 18, which also alleges violations of Title III.

 The doctrine of qualified immunity, when applicable, provides government officials performing discretionary functions protection from liability as well as protection from suit for civil damages. Behrens v. Pelletier, U.S. , , 133 L. Ed. 2d 773, 116 S. Ct. 834, 838 (1996) (quoting Harlow, at 818, 102 S. Ct. at 2738); see also Erwin v. Daley, 92 F.3d 521, 523 (7th Cir. 1996). The defendant bears the burden of pleading the defense. Gomez v. Toledo, 446 U.S. 635, 640, 100 S. Ct. 1920, 1923-24, 64 L. Ed. 2d 572 (1980). The Supreme Court has not explicitly resolved the question of which party bears the burden of proof in contrast to the burden of pleading. See Harlow v. Fitzgerald, 457 U.S. 800, 102 S. Ct. 2727, 2737 n.24, 73 L. Ed. 2d 396 (1982); Gomez, at 642, 100 S. Ct. at 1924 (Rehnquist, J. concurring). The Seventh Circuit, however, has repeatedly held that while public officials asserting the defense have the burden of pleading, the plaintiff bears the burden of demonstrating that the conduct at issue violated a right that was clearly established when the conduct occurred. *fn5" See, e.g., Magdziak v. Byrd, 96 F.3d 1045, 1047 (7th Cir. 1996); Montville v. Lewis, 87 F.3d 900, 902 (7th Cir. 1996); Clash v. Beatty, 77 F.3d 1045, 1047 (7th Cir.1996), Rakovich v. Wade, 850 F.2d 1180, 1209 (1987). With respect to the Plaintiffs' burden of proof, the Supreme Court set forth the following two-part analysis in Harlow : "(1) Does the alleged conduct set out a constitutional violation? and (2) Were the constitutional standards clearly established at the time in question?" Wade v. Hegner, 804 F.2d 67, 70 (7th Cir. 1986) (citing Mitchell v. Forsyth, 472 U.S. 511, 105 S. Ct. 2806, 2815, 86 L. Ed. 2d 411 (1985)); Lojuk v. Johnson, 770 F.2d 619, 628 (7th Cir. 1984), cert. denied, 474 U.S. 1067, 106 S. Ct. 822, 88 L. Ed. 2d 795 (1986). The Court addresses these questions below. ...


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