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Best v. Malec

June 11, 2010

ERAN BEST, PLAINTIFF,
v.
STACEY MALEC, TIMOTHY BOOGERD, CITY OF NAPERVILLE, A DAY WITH, INC., GOOD LUCK NAT, INC. D/B/A THE GREIF COMPANY, AND A&E TELEVISION NETWORKS, LLC, DEFENDANTS.



The opinion of the court was delivered by: Matthew F. Kennelly, District Judge

MEMORANDUM OPINION AND ORDER

Eran Best has filed a lawsuit against the City of Naperville, two Naperville police officers, and several television production companies arising from her appearance on the reality television show Female Forces. Best alleges that she was depicted on the show without her consent. She raises a federal claim under 42 U.S.C. § 1983 and several state law claims arising out of her arrest and her depiction on the television show. Defendants have moved to dismiss several of the state law claims on various grounds. For the reasons stated below, the Court grants the motion in part and denies it in part.

Background

When considering a motion to dismiss a complaint, the Court accepts the facts stated in the complaint as true and draws reasonable inferences in favor of the plaintiff. Newell Operating Co. v. Int'l Union of United Auto., Aerospace, and Agr. Implement Workers of Am., 538 F.3d 583, 587 (7th Cir. 2008).

The Court takes the following facts from the allegations in Best's complaint. Defendants A Day With, Inc. (ADW) and Good Luck Nat, Inc. d/b/a The Greif Company (Greif) produce a television show called Female Forces that airs on the Biography Channel. The Biography channel is owned by defendant A&E Television Networks, LLC (A&E). Female Forces is an unscripted "reality" television series that follows several female Naperville police officers as they perform their duties and interact with members of the public. Before a member of the public can appear on the show, the producers must obtain a signed release in which the person consents to being televised.

The City of Naperville participates in the Female Forces program pursuant to a city resolution authorizing it to enter into a contract with ADW. The contract with ADW gives the Naperville Police Department the right to review a rough cut of each episode of the show and to demand removal of material from the episode if it chooses. The department must make such a request within five days of receipt of the rough cut; failure to reply within the five-day period is deemed approval of the rough cut.

On February 24, 2008, Best was driving in Naperville when she was pulled over by Boogerd because the license plate on her car had an expired sticker. Boogerd took Best's driver's license and registration and returned to his vehicle while Best waited in her car. From his car, Boogerd requested that Malec, a female officer who was being accompanied that day by a Female Forces camera crew, join him at the scene. The wait for Malec and the Female Forces crew caused a thirty minute delay in the processing of Best's traffic stop.

Once Malec and the camera crew arrived on the scene, Boogerd and Malec approached Best's car. They asked her to get out of the car. When Best asked what was going on, Malec identified herself as a police officer and stated that the television crew was filming a documentary about her. Boogerd and Malec performed a field sobriety test on Best. Best stated that she had consumed one beer three hours earlier, and she passed the field sobriety test. Boogerd and Malec then informed Best that she was driving on a suspended driver's license, and they placed her under arrest. They handcuffed Best and placed her in the back of Boogerd's squad car. Boogerd and Malec then proceeded to search Best's car. After the search was completed, Boogerd transported Best to the Naperville police station while Malec waited at the scene for a tow truck to arrive to impound Best's car.

While Boogerd was transporting Best to the police station, he informed her that if she did not sign a written consent form, the footage of her arrest would not be shown on the Female Forces tv show. Once she arrived at the Naperville police station, a Female Forces producer approached Best and urged her to sign a written consent form to allow the footage of her arrest to be used on the television show. Best repeatedly refused, and she never signed a consent form.

Despite the fact that Best never signed a consent form, footage of her arrest was broadcast in an episode of Female Forces. The segment includes footage of the field sobriety test and Best's arrest, including the moment when she is placed in handcuffs. Best's face is visible, and her voice is audible throughout this footage.

The segment also includes scenes in which Best is not on camera. One scene shows Boogerd and Malec searching Best's car while bantering about her expensive taste. Malec says that Best likes Coach purses, bags, and shoes, and Boogerd comments that Best was driving a Jaguar. In another scene, Malec is shown in her squad car driving to the scene, speaking directly to the camera. At one point, as Malec is speaking to the camera, the camera focuses on a dashboard computer, on which information about Best -- including her date of birth, height, weight, driver's license number, and brief descriptions of previous arrests and traffic stops, including at least one that took place when she was a minor -- is displayed.*fn1 After the scene showing Best's arrest, the camera again films Malec in her squad car, and she says, "Do I feel sorry for [Best]? No. Pretty little blond girl, 25 years old, driving a Jaguar - yeah, that's Naperville."

The Female Forces episode featuring Best has aired more than once. Best has received phone calls from friends and acquaintances who have seen the segment. She alleges that the broadcasting and rebroadcasting of the episode has caused her substantial humiliation and emotional distress. In her complaint, Best asserts six claims. In count 1, she alleges that defendants conspired to and did violate her federal constitutional right to privacy when they "staged, sensationalized, and/or enhanced" her arrest and broadcast it without her consent. In count 2, she alleges that ADW, Greif, and A&E (collectively, the "media defendants") used her identity for commercial purposes without her consent, in violation of the Illinois Right of Publicity Act, 765 ILCS 1075/30. In count 3, she alleges that all the defendants invaded her privacy under Illinois law by publicly disclosing private facts about her. In count 4, she raises a claim of intentional infliction of emotional distress under Illinois law. In count 5, she alleges that the city of Naperville violated the Illinois Personal Information Protection Act (PIPA) when it allowed the computer screen showing her personal information to be broadcast on the Female Forces program. Count 6 also arises out of the showing of the computer screen; Best alleges that the defendants violated the federal Driver's Privacy Protection Act, 18 U.S.C. § 2722(a), when they disclosed her driver's license number in conjunction with her name.

Defendants have moved to dismiss counts 2, 3, 4, and 5 pursuant to Federal Rule of Civil Procedure 12(b)(6). They have also moved to compel Best to state the precise date on which the episode in question first aired and to strike the portions of counts 3, 4, and 5 requesting punitive damages and attorney's fees. For ...


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