The opinion of the court was delivered by: Hon. Harry D. Leinenweber
MEMORANDUM OPINION AND ORDER
Before the Court is Defendant's Motion to Dismiss. For the reasons stated herein, the Motion is stayed for sixty (60) days to allow the United States to intervene.
On a motion to dismiss, the Court accepts as true the factual allegations in the Complaint. The Court will not repeat the lengthy aftermath of the altercation which evidently arose between David Koschman ("Koschman") and R.J. Vanecko ("Vanecko") on April 25, 2004, and which ultimately resulted in Koschman's death. Suffice it to say that police and prosecutors have been criticized for their handling of the case in light of Vanecko's high-profile connections in Chicago.
Defendant Chicago Sun-Times ran one such critical article on November 21, 2001. The story implicitly criticized the eyewitness identification lineup into which Police placed Vanecko on the ground that the officers who served as lineup "fillers" closely resembled him in age and stature. The article included each "filler" officer's: name (including middle initial), birth month and year, height, weight, hair color, and eye color. It listed the source of that data as the Chicago Police Department (the "CPD") and the Illinois Secretary of State. See Compl. Exs. 1 & 2.
Those officers are the Plaintiffs here. Before the story ran, the CPD had given Defendant the lineup photos, along with Plaintiffs' names, pursuant to a FOIA request. Plaintiffs allege that Defendant then used their names to obtain the other personal information in the story from the Illinois Secretary of State's motor vehicle records, though it is unclear how it allegedly did so.
Plaintiffs claim that by acquiring and publishing personal information from their motor vehicle records, Defendant violated their rights under the Driver Privacy Protection Act (the "DPPA"), 18 U.S.C. § 2721 et seq., and endangered their well being. Plaintiffs seek a declaratory judgment that Defendant violated the DPPA, an injunction directing Defendant permanently to remove their personal information from its publications, actual and/or statutory damages, punitive damages, and fees and costs.
Defendant argues that the published information falls outside of the DPPA, and alternatively that the DPPA violates First Amendment if it bars Defendant from publishing this truthful information relevant to its criticism of alleged government misconduct. Defendant also argues that the requested injunction constitutes an impermissible prior restraint of speech.
On a motion to dismiss under Rule 12(b)(6), the Court accepts as true all well-pleaded facts in Plaintiffs' Complaint and draws all inferences in their favor. Cole v. Milwaukee Area Tech. Coll. Dist., 634 F.3d 901, 903 (7th Cir. 2011). A complaint must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." FED. R. CIV. P. 8(a)(2). That is, it "must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949-50 (2009).
The Court notes that although Defendant challenges the DPPA's constitutionality, it failed to comply with FED. R. CIV. P. 5.1, which required it to serve the United States Attorney General with notice of the motion and of the constitutional question. Rule 5.1 also requires this Court to certify to the Attorney General that a statute's constitutionality has been questioned; the Court does so with this Order. The Government has sixty (60) days hereafter in which to intervene; in the interim, this Court may reject the constitutional challenge, but may not enter a final judgment holding a statute unconstitutional. Id. Because the Court finds it necessary to address the ...