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Dahlstrom v. Sun-Times Media, LLC

United States District Court, N.D. Illinois, Eastern Division

April 24, 2014

SUN-TIMES MEDIA, LLC d/b/a THE CHICAGO SUN-TIMES and Any Other Known Corporate Name, Defendant

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For Hugh Gallagly, Peter Kelly, Scott Dahlstrom, Robert Shea, Emmet Welch, Plaintiffs: Ronald C. Dahms, LEAD ATTORNEY, Chicago, IL; Sean Charles Starr, Law Offices Of Sean C. Starr, Chicago, IL.

For Sun-Times Media, LLC, and any other know corporate name doing business as Chicago Sun-Times, The, Defendant: Damon E. Dunn, LEAD ATTORNEY, Seth Aaron Stern, Funkhouser Vegosen Liebman & Dunn, Ltd., Chicago, IL.

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Hon. Harry D. Leinenweber, United States District Judge.

Defendant Sun-Times Media, LLC (" Sun-Times" ) has moved this Court to certify an Interlocutory Appeal of the Court's Opinions dated September 5, 2012 and November 18, 2013. For the reasons stated herein, the Motion is granted.


This case, brought by several officers of the Chicago Police Department (the " CPD" ), raises questions concerning the scope and constitutionality of the Driver's Privacy Protection Act (the " DPPA" ), 18 U.S.C. § 2722. On April 25, 2004, an altercation arose between David Koschman (" Koschman" ) and R.J. Vanecko (" Vanecko" ), a nephew of Richard M. Daley, then-Mayor of Chicago. The incident resulted in Koschman's death, and, in part due to Vanecko's political connections, gave rise to a high-profile CPD investigation. In its investigation, the CPD placed Vanecko in a lineup with several Chicago police officers of similar age, complexion, height, and build. Eyewitnesses misidentified some of the officers as the perpetrator, and the CPD concluded that there was no case to pursue against Vanecko.

Defendant Chicago Sun-Times did a bit of probing and published an article that scrutinized the CPD's lineup procedure. The article included each " filler" officer's name (including middle initial), birth month and year, height, weight, hair color, and eye color; it used this information to argue that the fillers were too similar to Vanecko for the lineup to be effective. Apparently, Defendant obtained the names and photographs through a Freedom of Information Act (" FOIA" ) request, and from there retrieved the remaining information from the officers' motor vehicle records. A state judge, citing several of Defendant's articles, reopened the investigation and appointed a special prosecutor to investigate Koschman's death. ECF No. 35-1 at 33. In early 2014, Vanecko pled guilty to involuntary manslaughter. Steve Schmadeke, Daley nephew Vanecko pleads guilty in Koschman death, Chi. Trib., Feb. 1, 2014, available at

These filler officers have brought suit, alleging that Defendant violated the DPPA by publishing their personal information after obtaining the information from their motor vehicle records. They seek declaratory relief, money damages, and an injunction mandating that Defendant remove Plaintiffs' information from its publications. Defendant moved to dismiss, arguing that the published information is not " personal information" within the meaning of the Act and, even if it is, enforcement of

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the Act against it would violate the First Amendment. Defendant also argued that the requested injunction, if granted, would amount to an impermissible prior restraint on Defendant's speech.

In a Memorandum Opinion and Order dated September 5, 2012, the Court rejected Defendant's statutory interpretation argument and held that " the information that Defendant published falls within the ambit of 'personal information' under the DPPA." ECF No. 21 at 7. Although Plaintiffs' names and photographs are unquestionably " personal information," 18 U.S.C. ยง 2725(3), the Court held that Plaintiffs in this case cannot state a claim as to the disclosure of their names and photographs because Defendant obtained that information from a FOIA request, not from Plaintiffs' motor vehicle records. ECF No. 21 at 5-6. The Court afforded the Government an opportunity to intervene to defend the statute, and when it declined, the Court accepted supplemental briefing from the parties on the First Amendment issue. In a second Memorandum Opinion and Order, dated November 18, 2013, the Court rejected Defendant's First Amendment defense on the ground that the DPPA " limits access to information" but " does not restrict what the press may publish." ECF No. 33 at 5. The ...

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