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Eran Best v. Stacey Berard F/K/A Stacey Malec

November 15, 2011

ERAN BEST, PLAINTIFF,
v.
STACEY BERARD F/K/A STACEY MALEC, TIMOTHY BOOGERD, CITY OF NAPERVILLE, A DAY WITH, INC., BOUTIQUE TV, INC., 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 sued the City of Naperville, two Naperville police officers, and several television production companies on claims arising from her arrest and resulting involuntary appearance on the television show Female Forces. Best claims that her arrest and the show's depiction of her personal information violated her federal constitutional rights to privacy and against unreasonable search and seizure. She also claims that defendants disclosed information about her in violation of the Driver's Privacy Protection Act (DPPA), 18 U.S.C. § 2722(a). Best previously asserted a number of state claims, which the Court dismissed in its previous decisions in this case. See Best v. Berard, 776 F. Supp. 2d 752 (N.D. Ill. 2011); Best v. Malec, No. 09 C 7749, 2010 WL 3721475 (N.D. Ill. Sept. 14, 2010); Best v. Malec, No. 09 C 7749, 2010 WL 2364412 (N.D. Ill. June 11, 2010).

Defendants have moved for summary judgment on Best's remaining claims. For the reasons stated below, the Court grants the motion in part and denies it in part.

Facts

On a motion for summary judgment, the Court construes all facts favorably to the nonmoving party and makes reasonable inferences in that party's favor. Bagley v. Blagojevich, 646 F.3d 378, 388 (7th Cir. 2011). The Court takes the following facts from the parties' memoranda of law and statements of uncontested facts and from its review of a recording of the relevant portion of the television episode in question.

Defendant A Day With, Inc. (ADW) produced a television show called Female Forces that aired on the Biography Channel. The Biography Channel is owned by defendant A&E Television Networks, LLC (A&E). Best asserts that defendant Boutique TV, Inc. was involved with the production of Female Forces, although the company was known by a different name at the time. Defendants deny that Boutique TV was involved.

Female Forces was an unscripted "reality" television series that followed female police officers as they performed their duties and interacted with members of the public. The City of Naperville participated in the Female Forces program pursuant to a city resolution authorizing it to enter into a contract with ADW. Naperville's police chief, David Dial, instructed police officers not to let filming interfere with their work in any way. The city's contract also gave the Naperville Police Department the right to review a rough cut of each episode of the show and to insist on removal of material from the episode. Dial, an A&E programming director, and a Female Forces "clearance supervisor" reviewed a rough cut of the pertinent episode before it aired, and the programming director and clearance supervisor also reviewed a final cut.

On February 24, 2008, Best was driving in Naperville. Defendant Timothy Boogerd, a Naperville police officer, saw from his squad car that Best's license plate had an expired sticker. He ran her license plate through the Illinois Secretary of State's database and saw that the car's registration had been suspended. He then pulled Best's car over at 11:08 p.m.*fn1 After pulling Best over, Boogerd approached her car and spoke to her. He later testified that he smelled alcohol when he did so. He asked Best if she had had anything to drink, and she replied that she had consumed one beer earlier in the evening. Boogerd then requested Best's driver's license. She handed him her Illinois state identification card, which he took back to his vehicle. He checked Best's driver record information and learned that her driver's license had been suspended.

While Best waited in her car, with the heat running, Boogerd requested that another officer come to the scene. Naperville police procedures require the presence of two officers during a sobriety test and encourage the presence of two officers during an arrest. The parties dispute how Boogerd's request occurred. Defendants contend that a police dispatcher contacted Boogerd at 11:13 p.m. for a status check and that Boogerd requested a back-up officer at that time. Best asserts that there is no record of any such request by Boogerd and contends that he contacted Stacy Berard, a female Naperville officer who was being accompanied by a Female Forces camera crew, by some other means.*fn2 One way or another, it is undisputed that Berard and a camera crew arrived on the scene at 11:17 p.m.

After Berard and the camera crew arrived, Boogerd again asked Best if she had had anything to drink, and she replied that she had consumed one beer. Either before or after asking this question, Boogerd and Berard approached Best's car and directed her to get out. Boogerd performed two field sobriety tests on Best. The first test was a "horizontal gaze nystagmus" test. He then asked her to recite a portion of the alphabet. He determined after administering these tests that she did not exhibit any signs of impairment. Boogerd and Berard then informed Best that she was driving on a suspended driver's license and placed her under arrest at 11:27 p.m. Berard handcuffed Best, patted her down, and placed her in the back of Boogerd's squad car. Boogerd and Berard then proceeded to search Best's car. After they completed the search, Boogerd began driving Best to the Naperville police station at 11:34 p.m.

Footage of events surrounding Best's arrest was broadcast during an episode of Female Forces. The segment depicts the sobriety tests and Best's arrest, including the moment when she is placed in handcuffs. Best's face is visible, and her voice is audible throughout the scene. The segment also includes scenes in which Best is not on camera. One scene shows Berard in her squad car driving to the scene, speaking directly to the camera. At one point during this sequence, the camera focuses on a dashboard computer. The computer displays the name "Erin Best," as well as Best's date of birth, height, weight, and driver's license number, a phone number, and brief descriptions of previous arrests and traffic stops.

Another scene shows Boogerd and Berard searching Best's car while bantering about her expensive tastes. Berard says that Best likes Coach purses, bags, and shoes, and Boogerd comments that Best was driving a Jaguar. After the scene showing Best's arrest, the camera again films Berard 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 was first broadcast on the Biography Channel on December 7, 2008. Best filed suit against defendants on December 14, 2009. Defendants have moved for summary judgment on all remaining counts of Best's complaint.

Discussion

Summary judgment is proper when the moving party shows that there is no genuine dispute over any material fact and that they are entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). A genuine issue of material fact exists when, based on the record, a reasonable fact finder could find in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). The Court views the record and draws all reasonable ...


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