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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,

vs.

SUN-TIMES MEDIA, LLC dba THE CHICAGO 

SUN-TIMES and any other known corporate name.

Defendant.

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Case No. 12 CV 00658

Judge Leinenweber

Magistrate Judge Brown

SUN-TIMES MEDIA LLC’S MOTION TO FILE

AN APPLICATION FOR IMMEDIATE APPEAL PURSUANT TO

28 U.S.C. 1292(b) AND FOR A STAY OF PROCEEDINGS

NOW COMES Defendant Sun-Times Media, LLC (“Sun-Times”), by its undersigned 

attorneys, and respectfully moves this Court for an Order permitting it to apply for an 

interlocutory appeal pursuant to 28 U.S.C. 1292(b), and to stay the instant proceedings, or, in the 

alternative, for reconsideration of the Court’s denial of the Sun-Times’ Motion to Dismiss, and in 

support states as follows:

I. Background

1. Plaintiff’s Complaint alleges that the Sun-Times violated the Driver Privacy 

Protection Act, 18 U.S.C. 2711 (“DPPA”), by describing the physical similarity of police officers

selected for a lineup. The reporting questioned the Chicago Police Department’s (“CPD”) 

handling of a politically charged homicide involving the former Mayor of Chicago’s nephew,

Richard Vanecko (the “Lineup Story”). CPD cited witnesses’ inability to pick Vanecko out of 

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the questionable lineup as its rationale not to charge him, despite having eliminated as suspects 

the other three members of Vanecko’s party who could have thrown the punch that killed David 

Koschman. Vanecko was indicted only after a Circuit Judge, citing the Sun-Times’ investigative 

reporting, appointed a special prosecutor to investigate CPD’s handling of its investigation. See 

Exhibit A. He is expected to stand trial early next year.

2. Plaintiffs do not dispute that the Sun-Times lawfully obtained the lineup names 

and photographs through a Freedom of Information Act request, but complain that the 

participant’s common characteristics – heights, weights, hair and eye colors, and approximate 

ages – derived from motor vehicle records. But see Camara v. Metro North R. Co. 596 F. Supp. 

2d 517 n.9 (D. Conn. 2009) (birth date is not “personal information” because it is not specifically 

listed in DPPA). Cf. 18 U.S.C. §2725(3) (“personal information” covered by DPPA include 

social security, telephone and driver license numbers, and other unique information that stalkers 

could use to “identify” a target). This Court initially acknowledged that Plaintiff’s interpretation

of the DPPA is an “awful stretch” (Transcript of Proceedings, April 12, 2012, Exhibit B hereto) 

but nevertheless denied the Sun-Times’ Motion to Dismiss the Complaint pursuant to Fed R. 

Civ. P. 12(b)(6) (the “Motion”).

II. Interlocutory appeal is proper because the Court’s orders involve controlling 

questions of law interpreting the scope of recent Seventh Circuit decisions

3. An order permitting an interlocutory appeal is appropriate under 28 U.S.C.A. 

§1292(b) because the Court’s rulings involve “controlling question[s] of law as to which there is 

substantial ground for difference of opinion” and “an immediate appeal from the order[s] may 

materially advance the ultimate termination of the litigation.” See Bartnicki v. Vopper, 532 U.S. 

514, 528 (2001) (acknowledging that it is a “still-open question” when, if ever, newspaper may 

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be punished for allegedly unlawful acquisition and publication of truthful information pursuant 

to a generally applicable statute). In First Amendment cases, immediate appeal is particularly 

suited to the Court’s “gatekeeper” function. Bartnicki itself arrived at the Supreme Court via a 

§1292(b) appeal to the Third Circuit. 532 U.S. at 521. The Supreme Court even instructs that, 

whenever possible, resolution of First Amendment cases should “entail minimal if any discovery, 

to allow parties to resolve disputes quickly without chilling speech through the threat of 

burdensome litigation.” Fed. Election Comm’n v. Wisconsin Right To Life, Inc., 551 U.S. 449, 

469 (2007) (Bipartisan Campaign Reform Act held unconstitutional as applied because 

prohibition on corporate funding of electioneering communications violated free speech rights).

4. The Seventh Circuit has explained that §1292(b) interlocutory appeals are 

particularly appropriate in cases involving interpretation of a “recent decision . . . its scope 

unsettled.” In re Text Messaging Antitrust Litig., 630 F.3d 622, 624 (7th Cir. 2010); see also 

United Airlines, Inc. v. Mesa Airlines, Inc., 219 F.3d 605, 609 (7th Cir. 2000) (interlocutory 

appeal warranted in light of recent authorities regarding preemption question). 

5. The questions raised by the Sun-Times April 13, 2012 Motion include whether (1) 

common characteristics constitute “personal information” under the DPPA, and (2) whether 

newsgathering regarding matters of public interest is protected by the First Amendment to the 

Constitution of the United States so that application of the DPPA urged by Plaintiffs is

unconstitutional. Compare Am. Civil Liberties Union of Illinois v. Alvarez (“ACLU”), 679 F.3d 

583, 598-599 (7th Cir. 2012) (enjoining enforcement of eavesdropping statute that prohibited 

filming of on-duty police officers because First Amendment protected gathering of information).

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6. The Court’s own September 5, 2012, Memorandum Opinion and Order (the 

“DPPA Order”) partially denying the Motion conceded substantial ground for a difference of 

opinion on whether the information is “personal information” under the DPPA, acknowledging:

“there is a good argument under the statutory cannons of association that 

‘personal information’ only includes information that identifies a person with 

greater particularity than does height, weight, or even birth month.”

(emphasis added). The 2012 Order turned solely upon dicta from a closely divided Seventh 

Circuit opinion entered after briefing on the Sun-Times Motion closed. See Senne v. Vill. of 

Palatine, Ill., 695 F.3d 597, 599 (7th Cir. 2012) (considering whether parking citation placed on 

motorists windshield constituted “disclosure” under DPPA); DPPA Order, p. 7.

7. The Court recognized there was a “good argument” that Judge Ripple did not 

intend to “stretch” an anti-stalking statute to prohibit news media from disclosing public 

officials’ common physical characteristics because Judge Ripple made no such ruling. Senne

expressly limited its holding to whether DPPA exceptions for law enforcement and adjudicative 

disclosures applied to parking tickets. 695 F.3d at 607. The court never considered, let alone 

decided, whether height and weight actually constituted “personal information” under the DPPA 

because the defendant conceded that the citation included “personal information” expressly listed 

in the statute, such as plaintiff’s name and driver’s license number. The court’s recitation that

the citation included “Mr. Senne’s full name, address, driver’s license number, date of birth, sex, 

height and weight” is merely descriptive and does not “stretch” the DPPA beyond its express 

terms and intended purpose. Ex. B.1 Accordingly, the scope of Senne is unsettled and there is no 

 

1 Unlike Senne, the names and images were obtained through FOIA in this case, rendering the distinction material. 

The Senne Defendant ultimately prevailed on summary judgment. Senne v. Vill. of Palatine, 10 C 5434, 2013 WL 

6197092 (N.D. Ill. Nov. 27, 2013).

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controlling authority holding that common characteristics are covered by the DPPA. See

Camara. 596 F. Supp. 2d at n.9.

8. Secondly, with respect to the First Amendment, the Court’s November 18, 2013

ruling (the “Constitutional Order”) that the DPPA does not impinge on the First Amendment is 

undercut by the Seventh Circuit’s recent ACLU decision. 679 F.3d at 595-599. The Court 

distinguished the DPPA because it “does not restrict what the press may publish. Rather, it 

limits access to information in that it narrows the purposes for which one may use personal 

information obtained from a motor vehicle record.” Order, p. 5. Yet ACLU, also decided after 

the Motion was filed, enjoined an eavesdropping statute when applied to recording police 

officers because “gathering news and information” is “necessarily included within the First 

Amendment’s guarantee of speech and press rights as a corollary” of the right to publish. Id. at 

595. ACLU’s reasoning should obviate any constitutional distinction between accessing 

information and publishing news. See also Ampersand Pub., LLC v. NLRB, 702 F.3d 51, 56 

(D.C. Cir. 2012) (application of National Labor Relations Act unconstitutional where it 

interfered with newspaper’s editorial process).

9. Thirdly, there is substantial ground for difference of opinion whether Plaintiff’s 

requested injunction against continued publication constitutes a “prior restraint” – the most 

egregious of First Amendment violations. The Court ruled that the requested injunction — to 

judicially censor the Sun-Times website — merely sought to end “continuing publication” of 

speech “that has already taken place.” Constitutional Order, p. 7. The Seventh Circuit, however, 

has described restraints against continued publication, or even distribution of already published 

materials, as “prior restraints [that] are highly disfavored and presumed invalid”. Weinberg v. 

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City of Chicago, 310 F.3d 1029, 1045-46 (7th Cir. 2002) (city’s peddling license scheme which 

restricted continued sale of books violated First Amendment).

III. Interlocutory appeal may materially advance the termination of this litigation,

obviate burdensome discovery and motion practice, and minimize the “chilling 

effect” on First Amendment freedoms

10. The Motion clearly raised “controlling questions of law” for purposes of §1292(b) 

because “if the [Complaint] does not state a claim, the case is likely . . . to be over.” Text 

Messaging, 630 F.3d at 624. First Amendment and media cases are particularly suited to 

interlocutory appeal because they often raise threshold questions of law. See Bartnicki, supra

(constitutional protections for newsgathering); Horsley v. Rivera, 292 F.3d 695, 700 (11th Cir. 

2002) (radio broadcast protected by First Amendment); Groucho Marx Prods., Inc. v. Day & 

Night Co., Inc., 689 F.2d 317, 319 (2d Cir. 1982) (right of publicity). Prompt appeal thereby 

fulfills the Court’s gatekeeper function and combats the “chilling effect” which inevitably 

follows in the wake of uncertainty and litigation. 

11. As in Bartnicki, an immediate appeal in this case will dispose of controlling issues 

of law and may obviate complex discovery and motion practice that needlessly drains judicial 

and party resources. The Supreme Court discourages discovery in First Amendment cases

because it inherently “chills speech.” Wisconsin Right To Life, 551 U.S. at 469. Discovery into 

newsgathering, in particular, triggers collateral litigation over confidential sources that “chills” 

both press freedoms and the First Amendment generally. See e.g., Gulliver’s Periodicals, Ltd. v. 

Charles Levy Circulating Co., Inc., 455 F. Supp. 1197, 1202 (N.D. Ill. 1978) (“the compelled 

disclosure of a news source or source material places a restraint on the news gathering process, 

implicates and involves an infringement on freedom of the press. Disclosure of a news source 

should not be ordered absent some strong and compelling reason in favor of disclosure.”). Such

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discovery battles in turn may warrant interlocutory appeals. See Price v. Time, Inc., 416 F.3d 

1327, 1334 as modified on denial of reh’g, 425 F.3d 1292 (11th Cir. 2005) (accepting 

interlocutory appeal to quash plaintiffs’ efforts to compel disclosure of news sources).

Discovery into Plaintiff’s claimed “privacy” injury may meet resistance and require Plaintiffs 

and many other police officers to take time away from protecting the public. Extensive third 

party discovery into CPD’s handling of the investigation will bear on the constitutional 

importance of Sun-Times’ newsgathering but may complicate Vanecko’s upcoming trial.

12. A determination of the controlling questions of law in favor of the Sun-Times in 

the early stages would terminate this litigation without either party having to expend 

disproportionate expenses in discovery and trial, especially where discovery involves

complicated privilege questions, and third party inconvenience. Consequently, immediate appeal

promotes judicial economy and serves Section 1292(b)’s purpose to “materially advance the 

ultimate termination of the litigation.” To ensure that the appeal accomplishes this objective, this 

Court should also exercise the discretion afforded by Section 1292(b) to stay the District Court 

proceedings pending the interlocutory appeal. Price, 416 F.3d at 1334 (district court proceedings 

stayed pending 1292(b) appeal regarding compelled disclosure of reporter’s sources). 

13. Accordingly, the Sun-Times requests that the Court enter an Order allowing the 

Sun-Times to seek an interlocutory appeal of the Court’s two Orders denying its Motion, and 

particularly the following questions:

a. Whether, in light of Senne, Plaintiffs can state a claim against the SunTimes for obtaining “personal information” as defined by the DPPA where 

the Sun-Times allegedly obtained police officers’ heights, weights, hair 

and eye colors, and approximate ages from motor vehicle records for use 

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in investigative reporting on the performance of official duties regarding 

matters of public interest.

b. Whether, in light of ACLU, the First Amendment to the United States 

Constitution permits an application of the DPPA that would punish the 

news media for allegedly obtaining from motor vehicle records, and 

subsequently publishing in investigative reports on the performance of 

official duties regarding matters of public interest, police officers’ heights, 

weights, hair and eye colors, and approximate ages.

c. Whether an order enjoining or censoring the Sun-Times from continuing 

to publish an investigative report that references police officers’ heights, 

weights, hair and eye colors, and approximate ages, allegedly obtained in 

violation of the DPPA, would constitute a “prior restraint” on publication 

in violation of the First Amendment.

14. In the alternative, the Court may reconsider these questions, particularly given 

that the closest precedents came down only after the Sun-Times filed its Motion. On its face, 

Senne does not address whether common physical characteristics are “personal information” 

under the DPPA. 695 F.3d at 599. ACLU holds that a generally applicable statute cannot 

constitutionally be applied to punish the press and public for means of gathering truthful 

information regarding law enforcement officers. ACLU, 679 F.3d at 598-599. Finally, Weinberg 

holds that prior restraints are unlawful regardless of whether they restrain an initial or continued 

publication. Weinberg, 310 F.3d 1045-46. In these circumstances, “reconsideration performs a 

valuable function” by allowing these issues to be fully addressed. Bank of Waunakee v. 

Rochester Cheese Sales, Inc., 906 F.2d 1185, 1191 (7th Cir. 1990).

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WHEREFORE, for the reasons stated herein, the Sun-Times respectfully requests that 

this Court allow the Sun-Times to apply to the Seventh Circuit to allow it to appeal the foregoing 

questions pursuant to Section 1292(b), and stay these proceedings pending the appeal, or,

alternatively, reconsider its DPPA Order and Constitutional Order denying the Motions. 

Respectfully submitted,

SUN-TIMES MEDIA, LLC

By: /s/ Damon E. Dunn

One of its attorneys

Damon E. Dunn, Esq.

(#06180629)

Seth A. Stern, Esq.

(#6300954)

FUNKHOUSER VEGOSEN

LIEBMAN & DUNN LTD.

55 West Monroe Street, Suite 2300

Chicago, Illinois 60603

Tel. (312) 701-6800

Fax: (312) 701-6801

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