Defendants Are Not Entitled To Qualified Immunity For Claim That They Recorded Telephone Conversations Of Village Employees For Six Years Without Notice
NARDUCCI v. MOORE (July 9, 2009)
Many years ago, the Bellwood, Illinois comptroller became concerned that some finance department employees were making personal phone calls on village time and also were subjected to harassing phone calls from irate village residents. The village approved a proposal to begin recording department phone calls. Nicholas Narducci took over as controller several years later. When he learned about the recording, he advised village trustees that it was illegal, he alerted the FBI and he directed the Chief of Police to discontinue the activity. In 2001, he brought an action against the village, the mayor, and the police chief on behalf of a class of finance department employees whose calls were recorded. He brought a Fourth Amendment claim under § 1983 and an illegal wiretapping claim under Title III of the Omnibus Crime Control and Safe Streets Act of 1968, as well as state law claims. The mayor and the police chief moved for summary judgment on qualified immunity grounds. The district court denied the motion with respect to the § 1983 claims and some of the Title III claims. The mayor and the police chief appeal.
In their opinion, Judges Flaum, Williams and Lawrence affirmed. The issue on appeal, whether the defendants were entitled to qualified immunity, required the Court to examine whether there had been a violation of a constitutional right and, if so, whether it was "well-established." With respect to the Fourth Amendment violation, the Court looked to the totality of the circumstances. It first found, drawing all reasonable inferences in Narducci's favor, that he had demonstrated a reasonable expectation of privacy. The Court next concluded that Narducci presented enough evidence to survive summary judgment, given that the recording lasted more than six years with no notice to the employees. Although the Court realized that no Supreme Court or prior Seventh Circuit decision squarely addressed the issue, it concluded based on decisions of other circuits that the right was sufficiently clear to preclude qualified immunity. Lastly, the Court rejected the defendants' qualified immunity defense to the Title III claims. The Court concluded that the lower court did not err in holding that defendants waived the argument by not presenting it in their opening brief.
Michael Rigney practices in the law offices of GVC Ltd. in Chicago. In this blog, he reports on select