The opinion of the court was delivered by: Foreman, District Judge
Before the Court are defendants' joint motion for summary judgment as to plaintiff Patrick Cox, (Doc. 59), and Melanie Tellor (Doc. 60). Plaintiffs have filed responses (Docs. 62,63) and defendants have filed a reply (Doc. 66). Defendants' motions are discussed below.
The following facts are not in dispute. On May 5, 2002, a girl named Amber Griffin gave a statement to police officers that she had been sexually abused by a man named Rickie Tellor. (Doc. 59, Exh. C). The next day, on May 6, 2002, Ricky Tellor signed a voluntary statement that he did indeed commit the offense. (Doc. 59, Exh. B).
Sometime near the end of May, 2002, Ricky Tellor's wife, plaintiff Melanie Tellor, took another girl, Ashley Freeman to the Union County Courthouse to meet with plaintiff Patrick Cox. At the time, Attorney Cox was the Union County Public Defender and was representing Rickie Tellor. (Doc. 59, Exh. O, ¶1). At this meeting, Attorney Cox asked Freeman if she would be willing to tape record a conversation between herself and Amber Griffin to get Griffin to say that she had falsely accused Ricky Tellor of sexual molestation. (Doc. 59, Exh. O, ¶4). Freeman states that Cox's secretary brought her a tape recorder. (Doc. 59, Exh. O, ¶5). Freeman also states that Cox told her she would be a witness in Tellor's prosecution and that when testifying, she should not reveal that it was Cox's idea to record the conversation, and that she should say that she had received the recording device from someone other than Cox. (Doc. 59, Exh. O, ¶8).
Freeman then met with Griffin. During the conversation, (which Freeman recorded), Griffin stated that she was molested by Tellor. (Doc. 59, Exh. O, ¶¶10,11). Freeman gave the tape recording to Melanie Tellor who later informed Freeman that the tape-recorded conversation was insufficient, and that Freeman needed to tape Griffin again. (Doc. 59, Exh. O, ¶12). During this second conversation, (which Freeman also recorded), Freeman asked Griffin to help put Freeman's father in jail by fabricating a sexual allegation against him. (Doc. 59, Exh. O, ¶13). Specifically, Freeman states in her affidavit that:
13. I again met with Amber Griffin, and during the taping of that conversation I asked Griffin to help put my father in jail by making up an allegation of sexual abuse against my father. The goal of both recordings was to try to get Amber Griffin to say she had lied about Ricky Tellor. I did not actually plan to make a false allegation against my father. Prior to recording the conversation I did not have any suspicion that Amber was going to make a false claim against my father. I brought up the subject not because I suspected Amber was going to commit a crime against me or my immediate family but because I was trying to get Amber to say something that would help Rickie Tellor. (Doc. 59, Exh. O, p.3) (emphasis added).
As noted, according to Freeman, the goal of both conversations was to get Griffin to say that she had lied about her allegations against Rickie Tellor. (Doc. 59, Exh. O, ¶13).
On July 5, 2001, defendant James Temple was interviewing Freeman on an unrelated matter. At the end of the interview, Freeman volunteered that Rickie Tellor was innocent and that she had tape recorded Amber Griffin admitting that she had lied about the charges. (Doc. 62, Exh. 1, p.18 of 37). Freeman also told Temple that she had given the tape recording to Attorney Cox. (Doc. 62, Exh. 1, p.18 of 37). Investigator Temple then informed defendant John Bigler, Union County State's Attorney.
On July 9, 2002, Temple and Bigler met with Freeman and her mother. (Doc. 59, Exh. K, ¶6). Freeman explained to defendants that she had met with Attorney Cox and that he had asked her to elicit and to tape record statements from Griffin that she had falsely accused Rickie Tellor of sexual molestation. (Doc. 59, Exh. K, pp.2-8). Freeman also gave a handwritten statement that describes the events that led to her tape-recording Amber Griffin. (Doc. 59, Exh. E). This statement does not mention that Freeman suspected that Amber Griffin either had, or was going to, falsely accuse Freeman's father of molestation. (Doc. 59, Exh. E). The statement specifically notes that Attorney Cox asked Freeman if he could "get [Amber] on tape," saying that she fabricated allegations against Rickie Tellor. (Doc. 59, Exh. E).
Due to a learning disability, Freeman asked that her statement be typed. (Doc. 59, Exh. E). As such, defendant Temple typed her statement, (dated July 10, 2002), at her request. (Doc. 59, Exh. N). Both Freeman and her mother, (Annie Freeman), signed this statement. (Doc. 59, Exh. N).
Freeman's statement describes the events surrounding her recording of Griffin in greater detail. Specifically, Freeman's statement notes that:
I turned on the recorder right before I started talking to Amber.
I asked her if Rick had really touched her. Amber said yes she told me Rick was biting on her boob and playing with her. Then I left and gave the tape to Cindy who was hiding in Stephanie [sic] house. . . . Cindy listen [sic] to it and Melanie said that it was not good enough. Cindy sent me back . . . to get another tape of Amber telling a lie. . . . I asked Amber if she could help me put my dad in jail because he hits me to [sic] much. Amber said yes but he won't go away for a long time. So I asked Amber if we could do what you did to Rick, Amber said yea, we will lie about your dad. (Doc. 59, Exh. N, p.2).
In early July, 2002, Attorney Bigler suspected that Cox had violated Illinois' Eavesdropping statute and filed a petition for appointment of a special prosecutor. (Doc. 59, Exh. F). The Honorable Judge Hinshaw, First Judicial Circuit, Union County, Illinois, granted the petition and appointed Special Prosecutor David Rands. (Doc. 59, Exh. G).
On July 10, 2002, Investigator Temple requested a search warrant to search Cox's office for the tape recording and for other evidence of the crime of Eavesdropping under 720 ILCS 5/14. (Doc. 59, Exh. K). Special Prosecutor Rands approved the warrant petition, and Judge Hinshaw issued the warrant. (Doc. 59, Exh. L).
On July 12, 2002, Special Prosecutor Rands charged Attorney Cox with Eavesdropping, and charged Melanie Tellor with Eavesdropping and with Contributing to the Delinquency of a Minor with Eavesdropping. (Docs. 59, Exh. G, pp.1-2; Doc. 60, Exh. A). Attorney Rands has submitted an affidavit stating that he alone made the decision to charge plaintiffs, and that Attorney Bigler did not influence, or attempt to influence, his decision. (Doc. 59, Exh. G, ¶3).
The Illinois' Eavesdropping statute states that: 5/14-2. Elements of the offense; affirmative defense.
§ 14-2. Elements of the offense; affirmative defense.
(a) A person commits eavesdropping when he:
(1) knowingly and intentionally uses an eavesdropping device for the purpose of hearing or recording all or any part of any conversation or intercepts, retains, or transcribes electronic communications unless he does so (A) with the consent of all of the parties to such ...