Walden, et al v. Cicilline, Jr., et al

Filing 920100223

Opinion

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var WPFootnote1 = 'Of the District of Massachusetts, sitting by designation.\
'

var WPFootnote2 = '                   Also sued in their official capacities were the Mayor of\
Providence, David Cicilline, and the City\'s Chief of Police,\
Colonel Dean Esserman. We refer to them with the City of\
Providence collectively as "the City."\
'

var WPFootnote3 = '                   Plaintiffs also cross-appeal, raising claims about the\
district court\'s denial of prejudgment interest for the state\
wiretap damages and its failure to require both the City and Vieira\
each to pay the full damages amount, instead of treating the\
damages as joint-and-several, under the state wiretap act.\
'

var WPFootnote4 = '                   There was also a written policy that governed when\
recorded calls could be listened to. This policy required parties\
to fill out a written request to review a tape. This request then\
had to be approved by both the Internal Affairs unit of the Police\
Department and by Vieira: only then would employees of the\
Department of Communications provide the requested recording.\
'

var WPFootnote5 = '                   Prignano was Police Chief when planning for the Complex\
began and attended some of the initial meetings. \
'

var WPFootnote6 = '                   For purposes of this opinion we use the word "line" and\
the word "extension" interchangeably.\
'

var WPFootnote7 = '                   Plaintiffs\' theory was that the competitive bidding\
process was a sham and was designed to give the contract to\
Expanets. \
'

var WPFootnote8 = '                   A copy of the e-mail was put into evidence, and\
defendants provided three witnesses who testified they received it. \
The Police Department plaintiffs testified they did not receive the\
e-mail. \
'

var WPFootnote9 = '                   Defendants disputed whether this line was recorded. \
Plaintiffs\' expert testified it was recorded and we take that to be\
true. It was also disputed whether defendants intended that the\
personal line be recorded.\
'

var WPFootnote10 = '                   Although persons wishing to listen to recorded\
conversations were required to fill out written requests, as had\
been the practice with the Dictaphone system, Lennon, who was\
responsible for retrieving the recorded conversations, testified\
that she was not aware of a written policy governing when calls\
captured by the Total Recall system could be listened to and did\
not know if the written requests were reviewed by Internal Affairs.\
'

var WPFootnote11 = '                   Vieira\'s office was not physically located in the\
Complex. However, the telephone system at the Complex was set up\
so that employees could reach phones at these locations, among\
others, by an internal extension, rather than getting an outside\
line.\
'

var WPFootnote12 = '                   Vieira testified that, until this investigation, he was\
unaware that the Total Recall system was recording any telephone\
calls at the Complex beyond those into the central station. He\
testified that his earlier instructions to employees were only to\
remove lines from the cost-accounting system. These assertions\
were expressly contradicted at trial by Department of\
Communications employees, including Vieira\'s administrative\
assistant and a technician responsible for removing lines from the\
recording system. We accept plaintiffs\' version but note that none\
of this affects the City officials\' assertion that they did not\
intend to record the firefighters\' personal line or know that the\
line was being recorded.\
'

var WPFootnote13 = '                   Although the investigation and Esserman\'s order were not\
permitted into evidence before the jury at trial, pursuant to a\
motion in limine by defendants, these facts were raised and\
considered on the defendants\' motions for summary judgment, which\
claimed qualified immunity and that there was no municipal\
liability. The district court was also aware of them when making\
its later rulings.\
'

var WPFootnote14 = '                   In one instance, the Fire Chief listened to a call to\
determine how the Fire Department handled a potential drowning in\
response to a complaint. Major Simoneau also listened to a call\
about the towing of a car, this time in response to a complaint\
about how the officer in charge of the towing had spoken to the car\
owner on the phone. Finally, a City Councilman listened to a call\
he had with a city employee to determine whether he had been\
threatened by the employee. \
'

var WPFootnote15 = '                   The district court held that whether defendants fell\
under the "ordinary course of law enforcement" exception to the\
act, 18 U.S.C. § 2510(5)(a)(ii), could only be determined based on\
facts developed at trial. Id. at 263. \
'

var WPFootnote16 = '                   On January 3, 2008, the parties consented to proceed\
under the jurisdiction of a magistrate judge, pursuant to 28 U.S.C.\
§ 636(c). The case was accordingly reassigned. \
'

var WPFootnote17 = '                   The court did so pursuant to a November 2007 order on the\
defendants\' motions in limine on damages, in which the district\
court had held that because the federal and state wiretap claims\
were parallel and would lead to duplicative damages, plaintiffs\
were required at the close of trial to elect whether to seek\
damages afforded by 18 U.S.C. § 2520 or those afforded by R.I. Gen.\
Laws § 12-5.1-13. Walden v. City of Providence (Walden I), Nos.\
04-304A, 04-553A, slip op. at 3 (D.R.I. Nov. 30, 2007).\
'

var WPFootnote18 = '                   Specifically, on the constitutional and privacy act\
claims, the forms simply asked the jury whether each defendant had\
violated all plaintiffs\' rights within that group. On the wiretap\
act claims, the forms required the jury to find for all plaintiffs\
and against each defendant if the defendant had intercepted "any of\
[p]laintiffs\' telephone calls." The same was true of the jury\
forms\' presentation of the defendants\' defense that the calls were\
in the course of law enforcement work, which only allowed the jury\
to find for all plaintiffs or all defendants. We describe these\
forms in greater detail below.\
'

var WPFootnote19 = '                   Plaintiffs sought attorney\'s fees and costs under federal\
law, 18 U.S.C. § 1988, Fed. R. Civ. P. 54(d), D.R.I. Local Rule\
54.1, and the state wiretap and privacy acts, R.I. Gen. Laws §§ 12-5.1-13, 9-1-28. Although the district court only analyzed the\
claim under federal law, plaintiffs claimed at oral arguments they\
were also entitled to fees on state law grounds.\
'

var WPFootnote20 = '                   Plaintiffs argue that the individual defendants abandoned\
any claim to qualified immunity when they failed to take an\
interlocutory appeal from the denial of the summary judgment\
motion. That is plainly incorrect. See Wilson v. City of Boston,\
421 F.3d 45 (1st Cir. 2005); Iacobucci v. Boulter, 193 F. 3d 14, 23\
(1st Cir. 1999).\
'

var WPFootnote21 = '                   Since plaintiffs elected not to pursue their remedies\
under the federal wiretap act, 18 U.S.C. § 2510 et seq., we need\
not reach the question of whether the qualified immunity doctrine\
may be used in defense to a claim under that statute.\
'

var WPFootnote22 = '                   There was one circuit opinion, Abbott v. Village of\
Winthrop Harbor, 205 F.3d 976 (7th Cir. 2002), in which a jury\
found under § 1983 against a police chief and village that recorded\
police officers\' calls. Id. at 977. However, in that case,\
plaintiffs argued only that the recording of their personal line,\
and not the emergency and office lines at the station, violated\
their Fourth Amendment rights. Id. Moreover, plaintiffs\' claim of\
a reasonable expectation of privacy on their personal line in that\
case was based upon the police chief\'s initial exclusion of the\
personal line from the recording system, his explicit announcement\
to all officers that the personal line would not be recorded, and\
his subsequent, secret decision to begin recording the personal\
line for personal reasons unrelated to police work. Id. at 978-99. \
Because the police chief did not appeal, the court did not discuss\
qualified immunity at all, let alone whether plaintiffs\' rights in\
this context were clearly established.\
              In October 2002, another circuit court upheld a jury verdict\
that a police officer\'s Fourth Amendment rights had been violated\
when a specific call he made to his wife was recorded and listened\
to. Zaffuto v. City of Hammond, 308 F.3d 485, 488-89 (5th Cir.\
2002). There, the violation was not recording lines as a general\
matter, but instead that his particular call was accessed and\
reviewed. Id. The court also made no finding as to qualified\
immunity. Id.\
'

var WPFootnote23 = '                   To the extent that the district court relied on disputes\
over the degree of notice of the recordings that defendants gave to\
plaintiffs to deny immunity, it erred. There was no clearly\
established law that explicit notice to employees of recording was\
required in police offices and some law pointed the other way. \
Amati v. City of Woodstock, 176 F.3d 952, 955 (7th Cir. 1999).\
'

var WPFootnote24 = '                   Unlike individual defendants, municipalities are not\
entitled to qualified immunity. Our finding that Vieira and Lennon\
are entitled to such immunity does not dispose of the issue of\
municipal liability. Owen v. City of Independence, 445 U.S. 622,\
638 (1980). \
'

var WPFootnote25 = '                   The district court\'s instructions to the jury make clear\
that the finding of municipal liability rested on the court\'s\
ruling that Vieira was a final policymaker. Plaintiffs did not\
argue that there was some other policymaker.\
'

var WPFootnote26 = '                   While the Board\'s members include the Commissioner of\
Public Safety, its total membership also includes the Mayor and ten\
other departmental heads and senior city officials. It does not\
include the Director of Communications. Charter, art. X, § 1007. \
Moreover, the Mayor has general authority "[t]o supervise, direct\
and control the activities of all departments and agencies of city\
government." Id. art. III, § 302(a).\
'

var WPFootnote27 = '                   Because we have granted qualified immunity under § 1983,\
there is no reason to believe the defendants are not also entitled\
to qualified immunity on state constitutional claims. Rhode Island\
law recognizes qualified immunity. Ensey v. Culhane, 727 A.2d 687,\
690-91 (R.I. 1999); see also Hatch v. Town of Middletown, 311 F.3d\
83, 90 (1st Cir. 2003). \
'

var WPFootnote28 = '                   Plaintiffs argue that the City did not preserve the claim\
at the summary judgment stage or later. Our own review of the\
City\'s summary judgment motion shows that the City plainly\
presented the argument that the state wiretap law did not allow\
suit against a municipality because of a difference in wording in\
the state and federal acts. Further, the City did raise on its\
Rule 50 motion the argument that it was entitled to judgment on\
both of the federal claims and all of the state claims. \
'

var WPFootnote29 = '                   The other section plaintiffs sued under is a criminal\
provision that incorporates a requirement that the recordings be\
willful and also applies only to "persons." R.I. Gen. Laws\
§ 11-35-21(a). Rhode Island courts use the definitions in § 12-5.1-1 when interpreting § 11-35-21. See O\'Brien, 774 A.2d at 94.\
'

var WPFootnote30 = '                   The federal statute defines a "person" as "any employee,\
or agent of the United States or any State or political subdivision\
thereof, and any individual, partnership, association, joint stock\
company, trust, or corporation." 18 U.S.C. § 2510(6). Although\
this language varies slightly from that of § 12-5.1-1(11), we\
conclude that both clearly exclude municipalities from the\
definition of persons.\
'

var WPFootnote31 = '                   Although the same critique applies to the verdict forms\
for the constitutional claims, our earlier findings on qualified\
immunity and municipal liability make it unnecessary for us to\
reach that issue.\
'

var WPFootnote32 = '                   Plaintiffs raised state wiretap claims based on two\
different statutory provisions. Count Four was under R.I. Gen.\
Laws § 11-35-21, and Count Six was under R.I. Gen. Laws\
§ 12-5.1-13. The court instructed the jury separately on these\
claims, but it provided the jury with forms that did not\
distinguish between the two claims and addressed them\
simultaneously. \
'

var WPFootnote33 = '                   Although we do not ultimately decide defendant Vieira\'s\
argument that the court incorrectly applied the law enforcement\
exception to the state wiretap act, we question the court\'s\
recitation of the law, which could exclude government employees\
responsible for operating otherwise legal recording equipment\
simply because they are not police officers. Cf. United States v.\
Lewis, 406 F.3d 11, 16-18 (1st Cir. 2005) (finding a state\
telephone system administrator at a prison to be a law enforcement\
officer). \
'

var WPFootnote34 = '                   The second defense presented to the jury was that\
defendants could not be liable for the recording of calls by any\
plaintiffs who consented to the recordings. This defense required\
the jury to decide whether any of the individual plaintiffs had\
consented. The court required the jury to make individual findings\
on this defense and so we do not address it further.\
'

var WPFootnote35 = '                   The forms similarly required the jury to make a finding\
of the number of days on which calls were recorded for plaintiffs\
even if plaintiffs failed to prove that the recording of their\
calls was intentional, as may well have been the case among\
firefighters who made calls on the personal line.\
'

var WPFootnote36 = '                   Among the Chmura plaintiffs were police officers who used\
their telephones for police work, civilian Police Department\
employees who answered calls from complainants, and employees who\
only made calls on administrative matters. Among the Walden\
plaintiffs, there were internal calls between fire stations that\
directly implicated the functioning of the Department and calls on\
the firefighters\' personal line.\
'

var WPFootnote37 = '                   The Chmura plaintiffs made and received calls on a number\
of lines for a number of purposes, including as part of\
investigations, answering questions from family members of\
suspects, addressing human resources concerns, or simply making\
personal calls. The Walden plaintiffs had similar differences.\
'

var WPFootnote38 = '                   We realize there were 135 individual plaintiffs and that\
construction of an appropriate form would take some effort. But\
plaintiffs\' claim such a form would take 1,000 pages is simply\
untrue.\
'

var WPFootnote39 = '                   Lennon argues that the jury finding in Count Five, that\
she violated the privacy act, R.I. Gen. Laws § 9-1-28.1, was\
inconsistent with the verdict that she was not liable under Counts \
Four and Six, under the state wiretap act. Even assuming Lennon\
preserved the claim, the remedy for inconsistent civil verdicts\
that cannot be reconciled is a new trial, see Davignon v. Hodgson,\
524 F.3d 91, 109 (1st Cir. 2008), and she is entitled to a new\
trial on other grounds.\
              We do not reach Lennon\'s claim on the sufficiency of the\
evidence.\
'

var WPFootnote40 = '                   The dismissal of the federal wiretap act claims was based\
on an election of remedies. The parties have not briefed the issue\
of whether the federal wiretap claim can be reinstated on remand\
given the basis for the dismissal was the election of remedies. \
However, the election of remedies chosen by the plaintiffs was to\
their advantage, and there is no reason to think even if the law\
gave them a choice, that they would choose otherwise. \
'

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