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Narducci v. Moore

July 9, 2009

NICHOLAS NARDUCCI, PLAINTIFF-APPELLEE,
v.
GREGORY MOORE AND DONALDLEMM, DEFENDANTS-APPELLANTS.



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 01 C 1425-Milton I. Shadur, Judge.

The opinion of the court was delivered by: Flaum, Circuit Judge.*fn1

ARGUED MAY 7, 2009

Before FLAUM and WILLIAMS, Circuit Judges, and LAWRENCE, District Judge.

Nicholas Narducci, at one time the comptroller for the Village of Bellwood, is suing the Village, the former mayor, and the police chief for violating his Fourth Amendment rights and the Fourth Amendment rights of other plaintiffs in this class action suit by surreptitiously recording phone calls from the village's finance department. He is suing under 42 U.S.C. § 1983 and Title III, a federal statute prohibiting government officials from intercepting wire or electronic communications. The defendants moved for summary judgment in the district court, which was granted in part and denied in part. They now appeal the denial of summary judgment, arguing that they are entitled to qualified immunity on both the § 1983 and Title III claims.

For the following reasons, we affirm the district court.

I. Background

In 1993, Joe Lagen, the comptroller of the Village of Bellwood, began to worry about irate residents threatening employees of the village's finance department over the phone (usually because the residents had failed to pay their utility bills and had seen the city shut off their water service). And that was not Lagen's only worry. He was also concerned about finance department employees making personal calls on the village's time and over the village's phone lines. Lagen proposed to the village's board of trustees at a "pre-board" meeting that the village record calls to and from the finance department on the same system used to record calls to the police and fire departments.

"Pre-board" meetings, which were usually attended by Bellwood's mayor (Donald Lemm), the board of trustees, the village attorney and the village clerk, were a common means by which the board of trustees clarified its agenda in advance of the twice-monthly board meetings and heard proposals; it was unusual, but not unheard of, for the board to adopt policy at a "pre-board" meeting. The board of trustees apparently agreed to Lagen's proposal at the meeting, and authorized him to begin recording the finance department telephone lines. Lemm supported the idea as well, having recently heard some complaints about finance department employees being rude to residents calling the village.

The board requested that the Bellwood Emergency Telephone System Board, the board overseeing the village's 911 operations, connect the finance department phone lines to the recording system for emergency calls. Bellwood established an emergency telephone system in 1990 and the police department recorded calls to the system. Lagen sent Gary Modrow, a sergeant in the local police force and the chair of the Emergency Tele-phone System Board, a memo on January 4, 1994, instructing him to add five phone lines from the finance department to the emergency recording system. Modrow asked a technician from Dictaphone, the manufacturer of the village's recording system, to connect those phone lines. The process was completed about thirty days later. Narducci contends that the village did not post notices on or near the phones alerting finance department employees that the village was recording their phone calls.*fn2 The village claims, however, that users of the phone system heard an audible beep when they began using one of the recorded lines. Narducci, citing deposition testimony from Modrow, counters that the beep tone was eliminated and that he, at least, never heard it when using the affected phone lines. It appears that Lagen never listened to any of the calls to check up on threats to department employees or misuse of the village's phone system, and Lemm never followed-up with the finance department regarding threats from customers or instances of rude behavior from employees.

In March 1996, Gregory Moore replaced Robert Frascone as the chief of the village's police department. Moore learned before taking office that the village was recording phone lines in the finance department, but did not investi-gate the circumstances of the recording and took no steps to disconnect the Dictaphone from the phone lines until Narducci, Lagen's successor as comptroller, asked him to. Moore argued in the district court that he had no authority to disconnect the phone lines, although Frascone and Lemm claimed in deposition testimony that he did.

Narducci took over as Bellwood's comptroller in 1997 or 1998, replacing Lagen. He says that when he took over he had no idea that Bellwood was recording the phone lines in his department. Bellwood is a small unincorpo-rated community just west of Chicago, and does not employ a full-time comptroller; Narducci was simultaneously working for other nearby communities and usually spent only a few days a week in Bellwood. When he was in Bellwood, he frequently used the phone lines in the finance department both for Bellwood-related calls and also to make calls related to confidential matters for other cities. Narducci claims that he would usually work at whatever desk in the finance department was open, but that for confidential matters he sought a less-crowded place to make his calls.

Narducci learned that Bellwood was recording the phone lines in the finance department in a meeting on February 28, 2000. Narducci notified two trustees of the village that he thought the taping was illegal, alerted the FBI and the state's attorney, and wrote a memo to Moore directing him to stop the recording. After sending that memo, Narducci continued to make phone calls on the finance department phone lines but used his cell phone for all confidential calls.

Moore instructed Modrow to disconnect the finance department phone lines from the Dictaphone recorder. Moore believed that the phone lines were disconnected in March 2000. Modrow, on the other hand, said that he believed the phones were still connected when he left Bellwood in February 2002.

In February 2001, Narducci filed a lawsuit against the Village of Bellwood, Moore, Lemm, and various unknown trustees and employees of the village. He later dismissed the claims against the unnamed trustees and employees, but proceeded with the case against the three named defendants, and later had his suit certified as a class action on behalf of other employees of the finance department whose phone calls were recorded. The suit brought claims under 42 U.S.C. ยง 1983 and Title III of the Omnibus Crime Control and Safe Streets Act of 1968 for, respectively, violating his Fourth Amendment right not to be subjected to illegal searches and for illegal wiretapping. He also brought Illinois state law claims under the Eavesdropping Act and a tort action for intruding on a place of seclusion. Lemm and Moore moved for summary judgment on all claims, and specifically on the ground of qualified immunity (although as we will see, there's a complicated back story to their qualified immunity claim on the Title III count). The district court granted summary judgment on the state law claims and on any Title III claims involving phone calls made after Narducci learned about the recording in February 2000. ...


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