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).
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.
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. Thus, in order to prevail on his motion for summary judgment, Miller must prove that the Plaintiffs have failed to demonstrate that their constitutional rights were clearly established at the time of the alleged violation. As with all summary judgment motions, the evidence should be viewed in the light most favorable to the nonmoving party, in this case, the Plaintiffs. 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).
A. Constitutional Violation
The Court interprets counts 9 and 11 of the Plaintiffs' complaint to make the following allegations of constitutional violation: (1) Miller violated the Plaintiffs' constitutional protection against invasion of privacy as safeguarded by Title III, by intentionally intercepting telephone communications made by the plaintiffs on 3868, and (2) Miller violated the Plaintiffs' right under the Fourth and Fourteenth Amendments to be free from unreasonable searches and seizures by virtue of the same conduct. Similarly, the Court reads count 18 as plaintiff Abbott, individually, asserting that Miller violated her constitutional protection against invasion of privacy as safeguarded by Title III by intentionally intercepting telephone communications made by her on 3868.
The parties do not dispute that the Plaintiffs' allegations are based upon constitutional rights. Title III reflects Congress's attempt to codify the constitutional standards established by the Supreme Court in Berger v. New York, 388 U.S. 41, 87 S. Ct. 1873, 18 L. Ed. 2d 1040 (1967), and Katz v. United States, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967) with respect to electronic surveillance. Mitchell v. Forsyth, 472 U.S. 511, 532, 105 S. Ct. 2806, 2818, 86 L. Ed. 2d 411 (1985). Thus, counts 9 and allege a constitutional violation under Title III. In addition, the Fourth amendment confers upon citizens a constitutional right to protection against unreasonable search and seizure, Katz, 389 U.S. 347; 88 S. Ct. 507, 19 L. Ed. 2d 576, which is further secured by the Fourteenth amendment. See Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961). Accordingly, Counts 9, 11, and 18 are predicated upon recognized constitutional rights.
B. Clearly Established
The second part of the district court's analysis focusses on whether the Plaintiffs have proven that it was "clearly established" at the time of the wiretapping that Miller's conduct constituted a constitutional violation. See Harlow, 457 U.S. at 818, 102 S. Ct. at 2738. In other words, in order to find that he is entitled to qualified immunity, the Court must determine that, at the time of the wiretapping, Miller would not have been on notice that his behavior was "probably unlawful." Montville v. Lewis, 87 F.3d 900, 902-03 (7th Cir. 1996) (quoting Sherman v. Four County Counseling Center, 987 F.2d 397, 401 (7th Cir.1993)). Miller began recording communications made on 3868 in September or early October of 1992 and discontinued this practice in May of 1993. (See 12(M) P 10, Complaint P 12). Accordingly, only legal developments up to and including this time period will be considered in determining the applicable state of the law.
In order to determine the applicable state of the law, a court should first look to binding precedent. Cf. Donovan v. City of Milwaukee, 17 F.3d 944, 952 (7th Cir. 1994) (citations omitted) (emphasis added) (" In the absence of controlling authority on point, 'we seek to determine whether there was such a clear trend in the caselaw that we can say with fair assurance that the recognition of the right by a controlling precedent was merely a question of time.'"). Binding precedent is not, however, "a sine qua non of a finding that a particular right has been clearly established within the meaning of Harlow." Cleveland-Perdue v. Brutsche, 881 F.2d 427, 431 (7th Cir. 1989), cert. denied, 498 U.S. 949, 111 S. Ct. 368, 112 L. Ed. 2d 331 (1990) (citations omitted). Where there is no controlling precedent, a court should examine all relevant caselaw in order to determine "whether at the time of the alleged acts a sufficient consensus had been reached indicating that the official's conduct was unlawful." Id.; see also Doe v. Bobbitt, 881 F.2d 510, 511("In the absence of a binding precedent, we will look to all relevant decisional law to determine whether a right has been clearly established."), cert. denied, 495 U.S. 956, 110 S. Ct. 2560, 109 L. Ed. 2d 742 (1990). Put another way, in order to find that a right was clearly established in the absence of controlling precedent, the relevant caselaw should indicate that "recognition of the right by a controlling precedent was merely a question of time." Cleveland-Purdue, 881 F.2d at 431. Furthermore, while the constitutional right must be "sufficiently particularized" to put officials on notice of unlawful conduct, Azeez v. Fairman, 795 F.2d 1296, 1301 (7th Cir. 1986), "cases involving the exact fact pattern at bar are unnecessary." Lojuk v. Johnson, 770 F.2d 619, 628 (7th Cir. 1985); see also Anderson v. Creighton, 483 U.S. 635, 640, 107 S. Ct. 3034, 3039, 97 L. Ed. 2d 523 (1987); Bakalis v. Golembeski, 35 F.3d 318, 323 (7th Cir.1994) (quoting Rakovich, 850 F.2d at 1211) ("The right should not be defined so intricately that invariably guiding law never can be found.").
1. Counts 9 & 18: Omnibus Crime Control and Safe Streets Act (Title III)
The plain language of the Omnibus Crime Control and Safe Streets Act (Title III) establishes a right to civil damages and other relief against "any employee, or agent of the United States or any State or political subdivision thereof, and any individual" "who intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication." 18 U.S.C. §§ 2510(6), 2511(1)(a) (amended 1986), & 2520. "Intercept" is defined under the statute as "the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device." 18 U.S.C. § 2510(4) (amended 1986). The question before the court is whether a reasonable police official could reasonably conclude from applicable legal precedent that he was not violating a constitutional right to privacy by recording, but not listening to, the private communications of persons who were previously instructed in writing that such communications would not be recorded.
At the time of the wiretapping, several circuits had considered whether the term "intercept" implied only the actual listening to or hearing of private communications or whether it included the singular act of recording such co. The Seventh Circuit has yet to determine this specific issue. However, this Court's review of relevant caselaw
reveals an apparent consensus that the term "intercept" includes recordation without hearing or listening. See, e.g., United States v. Nelson, 837 F.2d 1519, 1527 (11th Cir.) ("The term 'intercept' as it relates to 'aural acquisitions' refers to the place where a communication is initially obtained regardless of where the communication is ultimately heard."), cert. denied, 488 U.S. 829, 109 S. Ct. 82 (1988); United States v. Turk, 526 F.2d 654, 659 (5th Cir. 1976) ("We conclude that no new and distinct interception occurs when the contents of a communication are revealed through the replaying of a previous recording."), cert. denied, 429 U.S. 823, 97 S. Ct. 74, 50 L. Ed. 2d 84 (1976); United States v. Shields, 675 F.2d 1152, 1156) (11th Cir. 1982) (citing Turk, 526 F.2d at 659) (interpreting the meaning of "interception" as occurring at the time of the recording, not when persons listened to the tape); see also United States v. Rodriguez, 968 F.2d 130, 144 (2d Cir. 1992) (concurring, Meskill, J.,) ("Aural" was originally included in section 2510(4) principally to place devices such as pen registers and trap and tracing mechanisms (which do not capture the sounds of a conversation) outside the scope of Title III. . . . That some courts interpreted "aural" to mean that the territorial jurisdiction requirement of section 2518(3) applied to the place where the communications were first heard was at most an unintended artifact of the structure of the statute."), cert. denied, Garcia v. United States, 506 U.S. 847 113 S. Ct. 139, 121 L. Ed. 2d 92 (1992). Furthermore, courts should strictly construe the provisions of Title III in order to carry out the congressional objectives undergirding the Act and ensure that privacy of the individual is protected. United States v. Brodson, 528 F.2d 214, 216 (7th Cir. 1975); see also United States v. Jones, 542 F.2d 661, 671 (6th Cir. 1976); United States v. Sellaro, 514 F.2d 114, 122-23 (8th Cir. 1973), cert. denied, 421 U.S. 1013, 95 S. Ct. 2419, 44 L. Ed. 2d 681 (1975); cf. United States v. King, 478 F.2d 494, 505 (9th Cir. 1973); Jandak v. Village of Brookfield, 520 F. Supp. 815, 820 (N.D. Ill. 1981).
Miller argues that the law regarding the routine recording of telephone lines at police stations and, more specifically, the law concerning the recording of communications where no listening occurs was uncertain at the time of the alleged violation. In addition, Miller contends that Nelson does not clearly establish Plaintiffs' alleged constitutional rights because the court did not reach the issue of whether a recording which is destroyed before it is ever heard by the human ear qualifies as an interception within the contemplation of the statute. Miller maintains that such a recording does not qualify as an interception. In support of his position, Miller quotes United States v. Bynum, 360 F. Supp. 400, 408-09 (S.D.N.Y. 1973), in which the district court for the southern district of New York held that "recording a communication which has not been heard by government agents and storing that recording so that it will not be heard, unless demanded by the parties involved in the conversation, does not constitute interception under the terms of the Act." Id. 360 F.2d 408-09. In Bynum, the issue before the court involved the minimization of interception of communications not properly subject of interception. Id. at 408-10. While this Court, is inclined to hold that the recordation of private communications qualifies as interception in light of the chilling effect that such recordation has on private communication, Amati, 829 F.2d at 1008, and the policy interests in protecting individual privacy, it does not need to reach this issue as Miller has failed to meet his burden of establishing that there is no genuine issue of fact as to whether the recordings were ever heard or listened to by him or by another at his direction. (See infra).
Moreover, even under the standards set forth in Bynum, Miller has failed to show that the recordings were stored so that they would not be heard unless demanded by a party to the communication. Miller's testimony that the recordings were destroyed every thirty (30) days is not the same as storing communications in a manner such that their privacy would not be compromised. Indeed, the thirty-day recycling process allowed the defendant Miller thirty days too many to listen to the Plaintiffs' private communications. Accordingly, this Court finds that Bynum does not apply to the case at bar.
Second, Miller directs the court's attention to Dunn v. Blue Ridge Telephone Co., 868 F.2d 1578 (11th Cir. 1989); Watkins v. L.M. Berry & Co., 704 F.2d 577, 586 (11th Cir. 1983); and Perfit v. Perfit, 693 F. Supp. 851, 856 (C.D. Cal. 1988) as evidence that, at the time of the wiretapping, relevant caselaw held that interception requires the listening to or hearing of private communications.
This Court's review of these cases, however, does not cause it to find that the law at the lime of the alleged violation was not clearly established.
In Watkins, the court determined the point at which consensual, contemporaneous monitoring of employee telephone communications should cease during personal communications. Watkins, 584 F.2d at 584. There the court held that "it is not necessary to the recovery of damages that the violator hear anything in particular; she need do no more than listen." Id. (emphasis added). However, in stating that a violator "need do no more than listen," the Watkins court did not establish the minimum degree of intrusion necessary to qualify as interception. Rather, Watkins merely instructs potential defendants that the content of the intercepted private communication is irrelevant when the act of listening or hearing occurs. Perfit is similarly inapplicable because it involved one spouse's attempt to record another spouse's telephonic communications made in the marital home. See Perfit, 693 F. Supp. at 852, 856. There the court held that there was no interception even though a recording device was installed on the plaintiff spouses's line but notably failed to articulate its interpretation of the term "intercept." See Perfit, 693 F. Supp. at 852, 856.
Dunn offers the most support for Miller's argument. In Dunn, the plaintiff's line was tapped for 575 days. Dunn 868 F.2d 1582 at n.16. The evidence supported a finding that the defendant listened to four communications, each occurring on four separate days. Id. at 1582. Under Section 2520 of the Act, plaintiffs are entitled to "actual damages but not less than the liquidated computed at the rate of $ 100 a day for each day of violation or $ 1,000, whichever is higher."
18 U.S.C. § 2520. The court interpreted this provision to mean that a successful plaintiff is entitled to actual or liquidated damages for each communication that is intercepted within the meaning of the Act, and thus, set aside a jury award of $ 57,500 in liquidated damages which appeared to be based on the entire period of wiretapping. Dunn 868 F.2d 1578 at 1582. Instead, the court diminished the plaintiff's recovery to $ 1,000--the larger sum between $ 400 ($ 100 for each communication listened to or heard) and $ 1,000. Id. In reaching this decision, the court apparently interpreted the term "intercept" to involve some action in addition to mere wiretapping or else it would not have set aside the jury award. Miller is, thus, correct in citing this case in support of his proposition. However, one aberrational case holding cannot disprove a showing that a consensus existed at the time of the wiretapping which clearly established Plaintiffs' constitutional right. Cf. Warlick v. Cross, 969 F.2d 303, 309 (7th Cir. 1992) (one court's decision recognizing the alleged right is insufficient to fulfill plaintiff's burden of proving that law was clearly established particularly when another court has disagreed). Here the overwhelming majority of cases supported the Plaintiffs interpretation of the term intercept at the time of the wiretapping. None of the cases proffered by Miller challenge the evidence that, at the time of the wiretapping, there was a consensus among the courts that to rise to the level of interception the defendant need only have recorded a private communication.
Finally, Miller contends that the plain language of the Act supports his interpretation of the term "intercept." In section 2518(8)(a) of the Act, Congress makes the following distinction between "interception" and "recording":
The contents of any wire or oral communication intercepted by any means under this chapter shall, if possible, be recorded on tape or wire or other comparable device.
Id. Miller urges the Court to find that this distinction is evidence of Congress's intent to keep the recording of unheard communications from within the purview of the statute. This interpretation of Section 2518(8)(a) is also articulated in Bynum. Id. at 408-09. However, the only congressional intent that can be reasonably inferred from this provision is that Congress contemplated interception to include the listening to or hearing of private communications. It does not follow, however, that interception is limited to such actions. Furthermore, this Court finds that additional statutory interpretation reveals that Congress's inferred intent lends support to the Plaintiffs' construction of the term "intercept."
For instance, in Flaherty v. Arkansas, 415 U.S. 995, 94 S. Ct. 1599, 39 L. Ed. 2d 893, the Court denied a petition for writ of certiorari by memorandum decision in which Justice Douglas dissented, joined by Justices Brennan and Marshall in a case involving Title III. In the dissent, Justice Douglas analyzed Title III in the following manner:
That an "interception" can occur without overhearing a conversation being carried between two other persons is made clear by § 2511(2)(c) of Title III. This section comprehends that a party to a communication can 'intercept' it within the meaning of the statute; it provides, however, that such interception is not unlawful within the meaning of Title III: