IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

SCOTT DAHLSTROM, HUGH GALLAGLY, )

PETER KELLY, ROBERT SHEA, )

and EMMET WELCH )

)

Plaintiffs, )

) Case No. 12 CV 00658

vs. )

)

SUN-TIMES MEDIA, LLC dba/ THE CHICAGO ) Honorable Judge

SUN-TIMES and any other known corporate name ) Harry D. Leinenweber

)

Defendant. )

PLAINTIFFS’ RESPONSE TO DEFENDANT’S MOTION TO 

RECONSIDER THE COURT’S ORDER PARTIALLY GRANTING 

PLAINTIFFS’ MOTION FOR JUDGMENT ON THE PLEADINGS 

Plaintiffs, SCOTT DAHLSTROM, HUGH GALLAGLY, PETER KELLY, ROBERT 

SHEA, and EMMET WELCH (“Plaintiffs”), by and through their attorneys, submit this 

Response to Defendant, SUN-TIMES MEDIA, LLC’s, Motion to Reconsider this Court’s

Order Partially Granting Plaintiffs’ Judgment on the Pleadings. In support, Plaintiffs state as 

follows:

INTRODUCTION

Plaintiffs filed their Complaint on January 30, 2012, alleging Defendant, Sun-Times 

Media, LLC (“Sun-Times” or “Defendant”) violate the Drivers Privacy Protection Act 

(“DPPA”), 18 U.S.C. § 2721 et. seq., when it obtained Plaintiffs’ full names, height, weight, 

eye color, hair color, and month and year of birth from the Illinois Secretary of State, and 

published that information in its online and print media. (Dkt. No. 1). On April 13, 2012, 

Defendant filed its Motion to Dismiss Plaintiffs’ Complaint. In its Motion, Defendant argued 

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that none of the information it obtained and published was within the scope of the DPPA, and 

that the First Amendment protects it against any DPPA violation. (Dkt. No. 8). In two 

separate rulings, on September 5, 2012, and November 18, 2013, this Court denied 

Defendant’s Motion. (Dkt. Nos. 21 and 33). 

In the September 5, 2012, ruling, this Court denied Defendant’s Motion to Dismiss, in 

part, and “conclude[d] the information that Defendant published falls within the ambit of 

‘personal information’ under the DPPA.” (Dkt. No. 21, p. 7). In the November 18, 2013, 

ruling, the Court denied Defendant’s Motion to Dismiss in full and found that the DPPA did 

not violate the First Amendment as applied. (See generally Dkt. No. 33). On April 24, 2014, 

this Court granted Defendant’s Motion for Interlocutory Appeal to the Seventh Circuit. (Dkt. 

No. 44). 

On May 11, 2015, the Seventh Circuit Court of Appeals affirmed this Honorable 

Court’s orders denying Defendant’s Motion to Dismiss. Dahlstrom v. Sun-Times Media, 

LLC, 777 F.3d 937 (7th Cir. 2015). In its opinion, the Seventh Circuit concluded the 

following:

a. The DPPA’s definition of “personal information” extends to the Plaintiffs’ 

personal details the Sun-Times published. Dahlstrom, 777 F.3d at 939; 

b. The Sun-Times possesses no First Amendment right either to obtain the 

officers’ personal information from government records or to subsequently 

publish that unlawfully obtained information. Id. at 940.

c. Information including age, hair color, eye color, weight, and height falls 

squarely within the universe of information that “identifies” an individual and, 

therefore, the DPPA is “clear and precise enough to give a person of ordinary 

intelligence fair notice about what is required of him.” Id. at 946 (quoting Wis. 

Right to Life, Inc. v. Barland, 751 F.3d 804, 835 (7th Cir. 2014)). 

d. The DPPA’s prohibition on obtaining an individual’s personal information 

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from motor vehicle records does not trigger heightened First Amendment 

scrutiny, requires only rational basis review, and easily satisfies the deferential 

rational basis standard. Id. at 946-949.

e. The Sun-Times’ publication of the Plaintiffs’ personal details both intruded on 

their privacy and threatened their safety, while the personal details are of 

marginal public value and does little to advance Sun-Times’ reporting on a 

story of public concern. The Government’s asserted interests are both 

important and furthered by the DPPA’s prohibition on disclosure, and are 

unrelated to the suppression of free expression and instead relate to the 

promotion of public safety. Therefore, the DPPA is narrowly tailored to 

withstand intermediate scrutiny. Id. at 950-954.

f. Sun-Times violated the DPPA when it obtained the Plaintiffs’ personal details 

from the Illinois Secretary of State and proceeded to publish them. Id. at 949, 

954.

After remand, Plaintiffs requested that the Court enter judgment on the pleadings on 

both Plaintiffs’ obtainment and publication claims under the DPPA. (Dkt. No. 68). On 

September 29, 2016, this Court issued a written Opinion and Order granting in part, and 

denying in part, Plaintiffs’ request (“Order”). (Dkt. No. 80), 2016 U.S. Dist. LEXIS 134227 

(N.D. Ill. Sep. 29, 2016). This Court correctly entered judgment in favor of Plaintiffs on their 

publication of personal information (“publication”) claim against Defendant, holding that the 

Seventh Circuit had already applied a heightened scrutiny balancing test to that claim and 

determined that “the specific details at issue are largely cumulative of lawfully obtained 

information published in that very same article, and are thereof of less pressing public 

concern than the threats of physical violence in [Bartnicki v. Vopper, 532 U.S. 514, 536, 

(2001)].” Order, pp. 3-4, 6-7, quoting Dahlstrom, 777 F.3d at 953.

This Court also held that the Illinois Secretary of State’s Office (“SOS”) is not a 

third-party because the Illinois Department of Motor Vehicles (“DMV”) obligates and 

authorizations the SOS to maintain and disclose the personal information at issue here. 

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Order, p. 7. This Court also held that “public safety” as defined in the Illinois Vehicle Code, 

has no relation “to investigations of police misconduct or any matter of public significance 

generally.” Order, p. 7-8. Additionally, this Court correctly ruled that the Sun-Times has no 

basis to conclude that the SOC is the “Official Source . . . charged with interpreting the 

DPPA.” Order, p. 8)

This Court also denied judgment on Plaintiff’s obtainment of personal information 

(“obtainment”) claim against Defendant by applying the same heightened scrutiny “balancing 

test” used on Plaintiffs’ publication claim. Order, p. 6. This Court concluded that since 

Defendant had obtained Plaintiffs’ personal information prior to obtaining the photographs in 

question, “a balancing could arguably come out in favor of the Sun-Times for the act of 

obtaining the personal information.” Id. Plaintiffs are currently challenging this part of the 

Court order in their own Motion for Consideration . (Dkt. No. 112).

In its Memorandum in Support of its Motion to Reconsider, Defendant is now 

attempting to rehash the same arguments it argued before this Court in its Motion to 

Reconsider (“Defendant Memo”) the Court’s Order entering judgment in favor of Plaintiffs 

on their “publication” claim. (Dkt. No. 110 & 111). The Defendant also adds arguments that 

have no bearing on the Seventh Circuit’s decision or this Court’s Order at issue. (Id.)

First, Defendant rehashes its “Official Source” argument that, since the SOS 

authorized the release of Plaintiffs’ personal information, and Defendant relied on that 

authorization, Defendant is exonerated from liability under the DPPA. Defendant Memo, pp. 

4-9. Second, Defendant argues that Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015), 

changes the Seventh Circuit’s analysis with regard to balancing “content neutral” restraints, 

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and therefore, the Court’s should reconsider its decision. Third, Defendant argues that 

discovery has flipped the Seventh Circuit’s inferences on the delicate balance of 

newsworthiness. All of these arguments fail for the reasons stated below

LEGAL STANDARD

Under FRCP 54(b), “any order or other decision [ ] that adjudicates fewer than all the 

claims or the rights and liabilities of fewer than all the parties does not end the action as to 

any of the claims or parties and may be revised at any time before the entry of a judgment 

adjudicating all the claims and all the parties’ rights and liabilities.” Motions to reconsider 

under Rule 54(b) “are judged by largely the same standards as motions to alter or amend a 

judgment under Rule 59(e).” Manley v. Boat/U.S., Inc., 2017 U.S. Dist. LEXIS 186185, p. 2-

3 (N.D. Ill. Nov. 9, 2017). The Court may grant a Rule 59(e) motion to alter or amend the 

judgment if the movant points to evidence in the record that clearly establishes a manifest 

error of law or fact, or if the Court previously misunderstood a party’s arguments. Id., See 

also, Miller v. Safeco Ins. Co. of Am., 683 F.3d 805, 813 (7th Cir. 2012).

ARGUMENT

I. The Secretary of State’s Interpretation of DPPA Does Not Matter

The Defendant attempts to argue that the SOS’s interpretation of the DPPA has an 

effect on this case. That is simply not true. In fact, all the Defendant is highlighting is, if 

Plaintiffs had sued the SOS under the DPPA, the SOS would be just liable. Under 18 USC § 

2721 of the DPPA, a “State department of motor vehicles, and any officer, employee, or 

contractor thereof, shall not knowingly disclose or otherwise make available” the type of 

personal information that the Sun-Times obtained and published. Instead, Defendant was 

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sued under 18 USC § 2721, which makes it “unlawful for any person knowingly to obtain or 

disclose personal information, from a motor vehicle record.”

The Defendant attempts to argue that the SOS has the authority to interpret the DPPA 

under the often analyzed Chevron case. Chevron v. Natural Res. Def. Council, 467 U.S. 

837, 844 (1984). Defendant then argues that 18 U.S. Code § 2721 (a), of the DPPA 

authorizes the SOS to interpret the laws of the DPPA. Of course, Section 2721 (a) does no 

such thing, but instead, merely states that stated departments “shall not knowingly disclose”

personal information as defined by the DPPA. The Defendant’s argument makes no logical 

sense. Under the same section that makes it illegal for the SOS to disclose personal 

argument, Defendant has turned that section into a self-serving apparatus where the State 

polices itself and makes its own determinations on how “personal information” and “public 

safety” is defined by the DPPA. 

Of course, the Seventh Circuit has made the determination on what is considered 

“personal information” under the DPPA. Dahlstrom v. Suntimes,, 777 F.3d at 953. Instead, 

Defendant relies on a litany of cases where federal laws gave state agencies the authority to 

interpret and enforce those laws. Defendant Memo, pp. 5-6. Here, not only does the DPPA 

not give the state such authority, but a plain reading of Section 2721(a) finds that a state 

department will be liable for violating its provisions. Also the Defendant uses a slight of 

hand by arguing “personally identifying information” is defined under Ill. Admin. Code tit. 

92, § 1002.20. However, that definition is very similar to the definition of “personal 

information” under the DPPA, 18 U.S.C, 2725. The same definition before the Seventh 

Circuit when it ruled in favor of Plaintiffs.

Defendant then argues, via a self-serving affidavit from an SOS employee, that 

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“public safety” means something entirely different than its plain meaning. (Defendant 

Memo, p. 6). The Sun-Times, via the SOS, attempts to argue that journalism concerning law 

enforcement’s treatment of politically embarrassing crimes relates to “public safety.” 

However, nowhere does such an argument or holding exist except in the Sun-Times’s 

attempt to avoid liability.

In fact, the Seventh Circuit does an exemplary job in explaining what “public safety” 

is throughout its decision. Dahlstrom, 777 F.3d 937. The Seventh Circuit Court correctly 

uses the term as it relates to “public safety goals, . . . public safety objectives . . . [and] public 

safety measure[s]” in protecting drivers and their personal information. Id. Not once does 

the Seventh Circuit use “public safety” as it relates to the Sun-Times’ reporting on alleged 

police misconduct. That is because the Drivers Privacy Protection Act and the Illinois 

Vehicle Code only use “public safety” as it relates to drivers, drivers’ information, vehicles, 

and licenses. (Emphasis added).

As Plaintiffs have previously argued, “public safety” is listed over twenty-five (25) 

times in the Illinois Vehicle Code. 1 Every single mention of “public safety” within the Code 

relates to motor vehicles, operation of vehicles, licenses, drivers, drivers’ permits, driving 

violations, licenses plates, passengers, vehicle insurance, public safety officers and agencies, 

etc. Id. Every mention “public safety” within the IVC relates to motor vehicles, operation 

of vehicles, licenses, drivers, drivers’ permits, driving violations, licenses plates, passengers, 

vehicle insurance, public safety officers and agencies, etc. 

 1 625 ILCS 5/2-123(12), (13); 625 ILCS 5/3-660(d); 625 ILCS 5/6-103.1(8), 108(b), 201(7), 205(c)(1), 

205(d)(1), 206(c)(3), 206.1, 208(b)(5); 625 ILCS 5/7-504; 625 ILCS 5/11-1426.1(d), 1426.2(c) & (d), 

1429(b)(4); 625 ILCS 5/18a-404(1)(d) & (2); 625 ILCS 5/18c-1103(f), 1202(7), 4102(k), 625 ILCS 5/18c7401(3), 7402(2)(b), 7402.1; 625 ILCS 5/20-301(l); 625 ILCS 27/5(d).

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Additionally, most of the time “public safety,” as cited in the Code, relates to 

whether a specifically defined set of drivers threaten, or endanger “public safety.”23 Thus, 

even in an expansive view where such personal information could be published by news 

media under the “public safety” exemption and not related to vehicles and driving, it would 

be in a situation where a murderer or criminal poses and an immediate danger to the “public 

safety” of Illinois Citizens, not to exemplify lineup fillers in a lineup photo in a seven year 

old police corruption case at the time the news article was published.

In fact, in the same “Sale of Information” section of the Illinois Administrative Code 

that defined “personally identifying information”, it shows that “public safety” is related 

specifically to the Illinois Vehicle Code when discussing “operation of a motor vehicle or 

public safety” as it related to the waiver of a 10-day waiting period:

The notification, 10-day waiting period, and non-disclosure of personally 

identifying information provisions shall not apply to requests made by law 

enforcement officials, governmental agencies, financial institutions, attorneys, 

insurers, employers, automobile associated businesses, family members with 

written consent, the individual personally, or reporters or news media, or to other 

business entities for purposes consistent with the Illinois Vehicle Code. The 

exemption to the notification, 10-day waiting period, and non-disclosure of 

personally identifying information provisions shall apply to the aforementioned 

requestors or to an authorized agent of the requestor acting within the scope of 

his or her employment, if such use is related to the operation of a motor vehicle 

 2 “’Show cause hearing’ means that the Secretary has good cause to believe that a driver may be a danger to 

public safety and welfare for violations of IVC Sections 6-103, 6-108, 6-207 and/or 6-201(a). The Department 

will send notice to the driver, who then has an opportunity to show cause why his/her driving privileges should 

not be cancelled at a formal hearing conducted pursuant to IVC Section 2-118.” 92 Ill. Adm. Code 1001.410 

(Emphasis added). 3 “Burden of Proof; Not Eligible for Reinstatement - Hardship Required. Petitioners who are not eligible for 

reinstatement of driving privileges or whose driving privileges are suspended at the time of their hearing must 

prove, by clear and convincing evidence, that there is no reasonable alternative means of transportation 

available, that they will not endanger the public safety and welfare, and that an undue hardship will result if 

they are not issued an RDP. The Secretary of State does not weigh the nature or extent of a petitioner's hardship 

against the risk he/she poses to the public safety and welfare. Rather, the petitioner must first carry the burden 

of proving that he/she will not endanger the public safety and welfare in order for the Secretary of State to 

consider whether the petitioner has an undue hardship.”

92 Ill. Adm. Code 1001.420, (Emphasis added).

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or public safety.

92 Ill. Adm. Code 1002.45 (Emphasis Added).

Common sense dictates that “public safety” is related to the Illinois Vehicle Code, and 

the disclosure of “personal information” under the “public safety” exemption is to 

protect the general public from danger, not as it relates to a police corruption scandal.

The Defendant then argues that since itobtained the information from the SOS, it 

relied on the government, which exonerates it from liability. (Defendant Memo, p. 2). Once 

again, the Sun-Times misses the point. As stated above, just because the SOS also violated 

the DPPA by disclosing unlawful personal information, does not mean that the Defendant 

can avoid liability when the DPPA explicitly finds a violation when a person knowingly 

obtains personal information, no matter if the SOS gave them that information voluntarily. 

18 USC 2721(a) & 2722(a). 

The Defendant then attempts to rely on Bartnicki v. Vopper, 532 U.S. 514, 528 

(2001) and its progeny, for the proposition that it cannot be punished by publishing lawfully 

obtained information. (Defendant Memo, pp. 7-8). However, Defendant is simply restating 

an argument that the Seventh Circuit summarily rejected. The Seventh Circuit found that the 

Defendant did unlawfully obtain Plaintiffs’ personal information, and therefore, found a in 

favor of Plaitniffs :

Where the acquirer and publisher are one and the same, a prohibition on the 

publication of sensitive information operates as an effective deterrent against 

the initial unlawful acquisition of that same information. Such acquisition 

carries little benefit independent of the right to disseminate that information to a 

broader audience. We therefore conclude that the government's deterrence 

interest is both important and likely to be advanced by the DPPA's ban on SunTimes's disclosure of the Officers' personal information.

Dahlstrom 777 F.3d at 952. Of course, the cases the Defendant cites are the same cases it 

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used in its appeal and in its Petition for Writ of Certiorari to the Supreme Court, which was 

denied. In those cases, the acquirer of the lawful information was different from the 

publisher. Here, Defendant unlawfully acquired and published Plaintiffs’ personal 

information, in violation of the DPPA. It does not matter the degree of unlawfulness as the 

Defendant tries to argue. Once again, Defendant cannot accept the Seventh Circuit’s ruling

that ruled the obtainment was unlawful. Although Plaintiffs and their counsel think highly 

of this Honorable Court, they have found no case law finding that is can overrule a 

reviewing court’s decision. That’s is exactly what the Defendant is attempting to do.

Finally, Defendant argues it could not have knowingly violated the “DPPA” if the 

SOS gave them the information. However, the DPPA finds a violation if Defendant 

knowingly obtains and discloses Plaintiffs’ personal information. Defendant admitted that it 

contacted the SOS to unlawfully obtain personal information at issue. Therefore, it 

knowingly obtained and published the proscribed information. Its attempt at arguing that 

“Plaintiffs convinced the Court to decide the Sun-Times possessed “requisite intent” before 

discovery” demonstrates that this Court followed the Seventh Circuit’s ruling when granting 

Plaintiffs judgment on the pleadings.

II. The Supreme Court Ruled that the Signs in Reed were Content Based, 

Thus it is Not Applicable to the Case at Bar

Defendant argues that the Supreme Court case of Reed v. Town of Gilbert, 135 S. Ct. 

2218 (2015), holds that content neutral restrictions are now subject to strict scrutiny. 

However, what is perplexing about Defendant’s argument is that the Supreme Court ruled 

that the Town of Gilbert, Arizona’s outdoor sign restrictions in Reed were, in fact, a facially 

content based regulation of speech, reversing the Appellate Court’s decision. 135 S. Ct. at 

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2228. The Supreme Court, in a 9-0 decision, ruled that the “Town’s Sign Code is content 

based on its face” because it regulates the signs based on the communicative message they 

convey. Id.

The Supreme Court differentiated the Town’s sign code with the ban in the case of 

Ward v. Rock Against Racism, 491 U. S. 781, 791 (1989), because Ward was facially 

content-neutral ban on the use, in a city-owned music venue, of sound amplification systems 

not provided by the city. 135 S. Ct. at 2228-29. Similar to Ward the DPPA’s ban on 

disclosing personal information has nothing to do with the message that personal information

conveys, but instead, imposes such restrictions to protect the safety and privacy of those 

individuals who provided personal information to state DMVs. 

Defendant then relies on Norton v. City of Springfield, 806 F.3d 411 (7th Cir. 2015), 

to argue that the Seventh Circuit reversed its position on content-neutral regulations. 

However, the Seventh Circuit specifically stated that it would wait to decide the issue of 

content based versus neutrality until the Supreme Court decided Reed. Norton, 806 F.3d at

411-412. In quoting Reed, the Seventh Circuit stated that “regulation of speech is content 

based if a law applies to particular speech because of the topic discussed or the idea or 

message expressed." 135 S. Ct. at 2227 (emphasis added). Springfield's ordinance regulates 

‘because of the topic discussed.’” Id. at 412. In following Reed, the Seventh Circuit held that 

it does not matter that the content is neutral with regard to ideas or viewpoints, only that it 

regulates speech targeted at a specific subject matter, and it struck down a Springfield law 

that prohibited verbally panhandling for money, but allowed signs requesting money.” Id. at 

41413.

Once again, Norton does not apply to the Seventh Circuit’s decision here because the 

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DPPA’s ban on disclosing personal information is not meant to regulate free speech. The 

DPPA’s purpose is to protect the personal information of drivers in the interest of their 

safety and privacy. Moreover, the Seventh Circuit applied a content neutral analysis because 

the personal information was regulated by source:

The DPPA proscribes only the publication of personal information that has been 

obtained from motor vehicle records. The origin of the information is thus 

crucial to the illegality of its publication—the statute is agnostic to the 

dissemination of the very same information acquired from a lawful source. The 

Supreme Court has concluded that disclosures that are prohibited “by virtue of 

the source, rather than the subject matter” are easily categorized as content 

neutral.

Dahlstrom, 777 F.3d 949.

Additionally, what Defendant fails to mention is that the content itself, personal 

information, is not a form of speech. It is correct that the court applied a content-neutral 

analysis because, as applied, it prevent the Defendant’s publication of that information. 

However

III. Discovery Has Absolutely No Relevance to the Seventh Circuit’s Balancing Test

Defendant attempts to argue that the discovery completed in this case tips the balance

in favor of itself. (Defendant Memo, p. 12). However, Plaintiffs need not delve too far into 

this argument because the discovery on this matter as it relates to liability simply does not 

matter. The Seventh Circuit ruled the following: 

Although the Sun-Times article relates to a matter of public significance . . . the 

specific details at issue are largely cumulative of lawfully obtained information 

published in that very same article, and are therefore of less pressing public 

concern than the threats of physical violence in Bartnicki. . . . While Sun-Times 

provided details of the Officers' physical traits to highlight the resemblance 

between the "fillers" and Vanecko, most of the article's editorial force was 

achieved through publication of the lineup photographs that Sun-Times 

obtained through its FOIA request—the value added by the inclusion of the 

Officers' personal information was negligible. Each Officer's height is evident 

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from the lineup photographs, while their weights and ages are relevant only to 

the extent that they increase the Officers' resemblance to Vanecko—a 

resemblance that the photographs independently convey. And, although 

identifying the Officers' hair and eye colors may add some detail to the 

published black-and-white photographs, their personal information is largely 

redundant of what the public could easily observe from the photographs 

themselves. Therefore, Sun-Times's publication of the Officers' personal details 

both intruded on their privacy and threatened their safety, while doing little to 

advance Sun-Times's reporting on a story of public concern.

Dahlstrom v. Sun-Times Media, LLC, 777 F.3d at 953.

Nothing in discovery changes the analysis of the Seventh Circuit’s decision or this 

Court’s entry of judgment against Defendant. Defendant attempts to argue that a second 

photo lineup of other individuals shows that the Plaintiffs’ are conspicuously even more 

similar in stature and therefore create an “optical illusion,” but that is not a factor in this 

Court’s or the Seventh Circuit’s analysis that Plaintiffs’ personal information that Defendant 

discloses is “largely cumulative.” (Defendant Memo, pp. 12-13). No matter how much 

Defendant believes the second photo lineup shows the dissimilarities with Plaintiff’s photo 

lineup, Plaintiffs’ personal information still only confirms that Plaintiffs and Vancko were 

similar in stature. (Defendant Memo, p. 12).

What is telling, however, is that even though Defendant now argues that the fillers in 

the second photo lineup are not the same size or stature, especially when compared to 

Plaintiffs’ photo lineup, Defendant does not paste the personal information of those lineup 

fillers under that second photo lineup to show those dissimilarities. (Defendant Memo, pp. 

12-13, Ex. F). Nor does Defendant discuss the dissimilarities of the men in the second photo

lineup except to state that one of the men was older. (Defendant Memo, pp. 12-13, Ex. F). 

Instead, as the article states, that second lineup was included because it was relevant to the 

investigation because it included Vanecko’s friends who were on scene with him.

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(Defendant Memo, pp. 12-13, Ex. F). Finally, this information was available to Defendant 

prior to its appeal, and yet it is only now that Defendant has determined that it somehow 

makes its story more of a significant public concern

Instead, although the Sun-Times did a commendable job in investigating other 

aspects of the Vanecko investigation, a reading of this particular article demonstrates how 

much a non-story it is. The point of the article – screamed out in its ALL CAPS headline –

was that “Vanecko was the Biggest Guy On Scene, But Not In Lineup.” Of course Vanecko 

was not the biggest person in the lineup. That is exactly the point of a lineup. If Vanecko 

was the biggest person in the lineup, he would be easy to pick out and the lineup and the 

lineup would be easily suppressed in criminal court for its inherent unfairness to Vanecko. 

Such a lineup where Vanecko was the biggest guy would violate Illinois laws on conducting 

lineups. (725 ILCS 5/107A-5, repealed & replaced by 725 ILCS 5/107A-2(f)(3) (2015)).

Defendant’s second argument with regard to what it found in discovery is even more 

of a non-starter. Defendant argues that Plaintiffs testified that they did not fear for their 

safety and their privacy rights were not infringed upon. (Defendant Memo, pp. 14-15). That 

is completely untrue, but it does not matter for the sake of liability. What is important with 

regard to liability is the Government’s interest the safety and privacy interests of the 

individuals they are attempting to protect by enacting the DPPA. As the Seventh Circuit

held: “[c]ertainly, in context, the significance of the Officers' personal information does not 

rise to the level of the threats of physical violence at issue in Bartnicki, and therefore does 

not override the government's substantial interest in privacy protection. Dahlstrom, 777 

F.3d at, 953-54, (Emphasis added). 

Indeed, the first prong of intermediate scrutiny is whether the government’s interests 

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are both important and further by the DPPA’s prohibition on disclosure between “publishing 

matters of private importance” Id. at 954. The “second prong of the analysis, both of the 

government's interests—(1) deterring the initial illegal acquisition of personal information, 

and (2) protecting the privacy of individuals whose information has been illegally 

obtained—are unrelated to the suppression of free expression and instead relate to the 

promotion of public safety.” Id. The final prong is whether the government’s regulation is 

narrowly tailored only that it encroached upon free speech “to the extent necessary to further 

those government interests.” Id. 

It is correct that the analysis was limited to the “facts and circumstances of this 

case.” Id. But only as it relates to Plaitniffs’ personal information being disclosed (which 

Defendant does not deny4), Defendant’s public significance in disclosing that information, 

and the government’s interests protecting that information in spite of the first amendment 

infringement it may cause. Id. at 949-954. Indeed, there is not one bit of analysis dedicated 

to Plaintiffs’ personal safety and privacy interests. Id. That is because the intermediate 

scrutiny analysis, as applied here, is the balance between Defendant’s first amendment 

rightss versus the Government’s substantial interests, regarding the personal information at 

issue.

CONCLUSION

WHEREFORE, Plaintiffs respectfully request that this Court enter an Order denying 

Defendant’s Motion to Reconsider.

 4 Defendant argues in footnote 7 that the SOS did not provide plaintiffs’ month and year of birth. However, 

Novak testified that he procured the information from Lexis, which gathers that information from the Illinois 

SOS and required users to submit that they are not violating the DPPA before accessing that information.

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By: /s/ Ronald C. Dahms

 One of Plaintiffs’ Attorneys

Ronald C. Dahms

Law Offices of Ronald C. Dahms

North Frontage Road, Suite 3020

Northfield, Illinois 60093

(312) 609-0060

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CERTIFICATE OF SERVICE

I, the undersigned, state that I served the foregoing Response toMotion to 

Reconsider, upon the below named persons, via the ECF Filing System of the Northern 

District of Illinois, on March 5, 2018. 

Damon E. Dunn, Esq.

Seth A. Stern, Esq.

FUNKHOUSER VEGOSEN LIEBMAN & DUNN, LTD. 

55 West Monroe Street, Suite 2300

Chicago, Illinois 60603 

s/ Ronald C. Dahms

Ronald C. Dahms

Plaintiffs’ Attorney

Law Offices of Ronald C. Dahms

540 North Frontage Road, Suite 3020

Northfield, Illinois 60093

(312) 609-0060

Case: 1:12-cv-00658 Document #: 114 Filed: 03/06/18 Page 17 of 17 PageID #:997