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/ ) Honorable Judge

THE CHICAGO SUN-TIMES ) Harry D. Leinenweber

and any other known corporate name , )

)

Defendant. )

PLAINTIFFS’ REPLY IN SUPPORT OF THEIR MOTION TO RECONSIDER THE 

COURT’S ORDER DENYING PLAINTIFFS’ MOTION FOR JUDGMENT 

ON THE PLEADINGS ON THEIR “OBTAINMENT” CLAIM UNDER THE DPPA

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

SHEA, and EMMET WELCH, by and through their attorneys, respectfully request that this 

Court reconsider its opinion issued on September 29, 2016, denying judgment in favor of 

Plaintiffs on their “obtainment” claim under the Drivers Privacy Protection Act (“DPPA”),

18 U.S.C. § 2721 et. seq. Replying in support of their Motion, Plaintiffs state the following:

INTRODUCTION

In response to Plaintiffs’ Motion to Reconsider the Court’s Order denying 

Plaintiff’s obtainment claim, the Sun-Times makes the same arguments that were made in 

its Motion to Reconsider the Court’s Order granting Plaintiffs’ publication claim, 

completely ignoring the Seventh Circuit’s ruling on this case. Dahlstrom v. Sun-Times 

Media, LLC, 777 F.3d 937 (7th Cir. 2015). However, the argument that Sun-Times fails to 

Case: 1:12-cv-00658 Document #: 119 Filed: 03/20/18 Page 1 of 12 PageID #:1022
2

address in Plaintiff’s Motion to Reconsider is that the Seventh Circuit applied a rational 

basis review on Plaintiffs’ obtainment claim, and found that the Sun-Times’ obtainment of 

Plaintiffs’ personal information from their motor vehicle records was not speech, and 

therefore, was not subject to heightened First Amendment at all. 

Instead, the Sun-Times continue to argue why the Seventh Circuit’s decision was 

wrong or was overruled by other cases, and how discovery (not relevant to the Seventh 

Circuit’s analysis) should sway this Court to overrule the Seventh Circuit’s decision. 

However, as this Court stated in the Order at issue, the Seventh Circuit’s opinion “is the 

law of the case” and will continued to be followed by this Court. (Dkt. No. 80, Order, p. 

8). 

ARGUMENT

I. None of the Sun-Times’ Cited Supreme Court and Seventh Circuit Case Law 

is Applicable to the Seventh Circuit’s Ruling on Plaintiffs’ Obtainment Claim.

In the Appellate Opinion, the Seventh Circuit concluded “that Sun-Times has not 

alleged a cognizable First Amendment injury with respect to the DPPA's prohibition on 

obtaining information from driving records—a limitation only on access to information.” 

Dahlstrom, 777 F.3d at 947 (Emphasis is original). Quoting its opinion in Travis v. Reno, 

the Seventh Circuit rejected a facial challenge to the DPPA and held that “[p]eering into 

public records is not part of the ‘freedom of speech’ that the first amendment protects” since 

there was “‘no constitutional right to have access to government information, or to require 

openness from the bureaucracy.’” Id., quoting 163 F.3d 1000, 1007 (7th Cir. 1998).

Case: 1:12-cv-00658 Document #: 119 Filed: 03/20/18 Page 2 of 12 PageID #:1023
3

The Seventh Circuit noted that certain government proceedings, such as those related 

to the judicial process, may deserve heightened scrutiny, but held in the case at bar that 

“[t]here is no corresponding need for public participation in the maintenance of driving 

records, which can hardly be described as an ‘essential component’ of self-government.” Id. 

The Seventh Circuit concluded that the DPPA’s prohibition of obtaining an 

individual’s “personal information from motor vehicle records does not trigger 

heightened First Amendment scrutiny, and instead requires only rational basis review” 

because “it is not a restriction on speech at all” Id. at 949 (Emphasis added). The Seventh 

Circuit held that the DPPA easily satisfies the deferential rational basis test because limiting 

access to personal information in motor driving records is rationally related to the 

government’s legitimate interest in “preventing ‘stalkers and criminals [from] acquir[ing]

personal information from state DMVs . . ..”’ Id., quoting Maracich v. Spears, 133 S. Ct.

2191. 2198 (2013).

In its Response to Plaintiffs’ Motion to Reconsider the Court’s Order Denying 

Plaintiffs’ Obtainment Claim (“Response”), Sun-Times attempts to use Supreme Court 

and Seventh Circuit case law to restate the same arguments either the Seventh Circuit

rejected in Dahlstrom, or have no relevance to the Seventh Circuit’s findings regarding

Plaintiffs’ obtainment claims. (Dkt. No. 113, Def. Response). 

First, Reed v. Town of Gilbert, 135 S. Ct. 2218, 2228 (2015), is not applicable, 

since the Supreme Court ruled that the Town of Gilbert signs were, in fact, content-based.

Here, the Seventh Circuit ruled DPPA’s prohibition on obtaining information was “not 

part of the ‘freedom of speech’ that the first amendment protects . . ..” Dahlstrom, 777 F.3d 

Case: 1:12-cv-00658 Document #: 119 Filed: 03/20/18 Page 3 of 12 PageID #:1024
4

at 947 (Emphasis is original), quoting Travis v. Reno, 163 F.3d 1000, 1007 (7th Cir. 1998). 

Indeed, in Reed, the Supreme Court ruled that because the signs were content-based, a strict 

scrutiny analysis applied, and did not rule that content-neutral prohibitions on free speech

warranted a higher level of scrutiny. Reed, 135 S. Ct.at 2228.

The Sun-Times then attempts to compare this case with Supreme Court and Seventh 

Circuit cases that deal with restrictions on speech on their face. Def. Response, pp. 10-11; 

see Packingham v. North Carolina, 137 S. Ct. 1730, 1737 (2017) (banning sex-offenders 

from using social media); Brown v. Phillips, 801 F.3d 849, 853 (7th Cir. 2015) (Restricting 

sex offenders from viewing R-rated movies). Once again, the Sun-Times refuses to 

acknowledge that the Seventh Circuit ruled that the DPPA’s restriction on obtaining driver 

motor vehicle information “is not a restriction on speech at all” Dahlstrom, 777 F.3d at 949

(Emphasis added).

The Sun-Times then argues that even under rational basis review, the DPPA’s 

restriction on obtaining personal information from DMV records is unconstitutional. 

However, the Seventh Circuit ruled:

Because limiting public access to driving records is rationally related to the 

government’s legitimate interest in preventing “stalkers and criminals 

[from] acquir[ing] personal information from state DMVs,” the restriction 

easily satisfies the deferential rational basis standard. 

Dahlstrom, 777 F.3d at 949. Maracich, 133 S. Ct. at 2198; see also Wis. Educ. Ass’n 

Council, 705 F.3d at 653 (setting forth the rational basis test). The Sun-Times attempts to 

argue that discovery in the case somehow dooms Plaintiffs’ obtainment claims. However, as 

with all analysis under the different levels of scrutiny, the Court is analyzing the entity’s

Case: 1:12-cv-00658 Document #: 119 Filed: 03/20/18 Page 4 of 12 PageID #:1025
5

interests and reasons for imposing a restriction on speech, not whether Plaintiffs’ personal 

testimony reinforce the government’s interests and reasons. Thus, it does not matter at all 

what any party may have stated in discovery. Instead, because the DPPA was enacted by the 

federal government, a determination on whether a restriction passes the rational-basis test is 

whether the restriction is rationally related to government’s legitimate interest. Dahlstrom, 

777 F.3d at 949.

II. As with Their Motion to Reconsider, the Sun-Times Argument that the Illinois 

Secretary of State was Authorized to Interpret and Disclose “Personal 

Information” is Not Relevant

The Sun-Times attempts to argue that the Illinois Secretary of State’s (“SOS”)

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(a) 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. 

The Sun-Times has yet to cite anything in the DPPA or case law addressing the DPPA, that 

shows that the federal government “authorized the States to interpret and enforce the DPPA”

as alleged in its Response. Def. response, p. 5. Instead the Sun-Times now argues that the 

obtaining of Plaintiffs’ personal information was not a case of theft, and simply obtained the 

information after the SOS released it. (Id., pp. 4-5). However, the Sun-Times’ position is 

entirely misleading since it was Sun-Times reporters that knowingly requested and 

unlawfully obtained Plaintiffs’ personal information from the SOS, in direct violation of the 

DPPA. 18 USC § 2722.

Case: 1:12-cv-00658 Document #: 119 Filed: 03/20/18 Page 5 of 12 PageID #:1026
6

The Sun-Timest cites to its Memo in Support of its Motion for Reconsideration dated 

(the “Sun-Times Memo,” Dkt. No. 111, pp. 4-9)), to argue that the SOS has the authority to 

interpret the DPPA under the often analyzed Chevron case. Def. Response, p. 5; Chevron v. 

Natural Res. Def. Council, 467 U.S. 837, 844 (1984). The Sun-Times 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 departments 

“shall not knowingly disclose” personal information as defined by the DPPA. The SunTimes’s argument makes no logical sense. Under the same section that makes it illegal for 

the SOS to disclose personal information, Defendant has turned that section into a selfserving apparatus where the State polices itself and makes its own determinations on how 

“personal information” and “public safety” is defined by the DPPA. (Def. Response, pp. 4-

8). 

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

“personal information” under the DPPA. Dahlstrom,, 777 F.3d at 946. 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. (Def. Response, pp. 5-6). However, “personal information” under the 

DPPA, 18 U.S.C 2725(3), is much broader in that it defines personal information as 

“information that identifies an individual.” Of course, the Seventh Circuit interpreted the 

definition of “personal information” under 18 U.S.C 2725(3), when it ruled in favor of 

Plaintiffs. Dahlstrom,, 777 F.3d at 946.

Case: 1:12-cv-00658 Document #: 119 Filed: 03/20/18 Page 6 of 12 PageID #:1027
7

The Sun-Times argues that since it obtained the information from the SOS, it relied 

on the government’s interpretation on whether it could receive that information, and 

shouldn’t be punished. (Def. Response, p.5). 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). 

Defendant then argues, via a self-serving affidavit from SOS Counsel, Donna 

Leonard, that “public safety” means something entirely different than its plain meaning. 

(Def. Response, p. 6 & Ex. A, paras. 5-7). 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, not 

even in the SOS affidavits, except in the Sun-Times’s attempt to avoid liability after the fact.

(Def. Response, Exs. A, B). Moreover, citing the Leonard Affidavit, the Sun-Times argues 

that “Illinois also interprets the Code’s exemption for ‘newsgathering... when the request 

relates to the operation of a motor vehicle or public safety’ to authorize the release of records 

to the press for a story about police misconduct.” (Def. Response, p. 6 & Ex. A, para 6). Of 

course, nowhere in the Leonard Affidavit does she state that a story about “police 

misconduct” relates to “public safety.”. (Def. Response, Ex. A, para. 6). More, the Leonard 

Affidavit is devoid of any type of statements that the Plaintiffs’ personal information is of 

“general public safety” relevance. (Id.). Instead, the affiant uses hearsay (“it is my 

understanding”) to state that since the SOS did not consider Plaintiffs’ height, weight, eye 

Case: 1:12-cv-00658 Document #: 119 Filed: 03/20/18 Page 7 of 12 PageID #:1028
8

color, hair color, month and date of birth1, to be personal information, that information was 

released to the Sun-Times. (Id., para. 7). More, Affidavit of SOS Press Secretary, David 

Drucker, doesn’t even mention the term “public safety,” and instead states Plaintiffs’

personal information was given to the Sun-Times because that information was “public

information for a news purpose,” and amazingly, the Illinois SOS “has the authority . . . to 

exempt news media requests from the DPPA” altogether. (Def. Response, Ex. B, paras. 4, 

5). 

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

is throughout its decision. Dahlstrom, 777 F.3d at 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).

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. (Def. Response, pp. 5-6). However, Defendant is simply restating an 

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

 1 SOS Affidavits do not state that the SOS provided Plaintiffs’ month and year of birth. However, Novak 

testified that he procured the information from Nexus Research Database, which gathers that information from 

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

information. (Ex. 1, Novak Dep., 50:4-51:17).

Case: 1:12-cv-00658 Document #: 119 Filed: 03/20/18 Page 8 of 12 PageID #:1029
9

Defendant unlawfully obtained Plaintiffs’ personal information, and therefore, found in favor 

of Plaintiffs :

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 

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. 

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

the SOS gave them the information. (Def. Response pp. 5-6). However, the DPPA finds a 

violation if Defendant knowingly obtains and discloses Plaintiffs’ personal information, not a 

violation if Defendant knowingly violated the statute. 18 U.S.C. §§ 2721(a); 2722(a). 

Defendant admitted that it contacted the SOS to knowinlgy obtain personal information at 

issue. Therefore, it knowingly obtained and published the proscribed information. The SunTimes argues that it relied on the SOS, and therefore it did not 

The Sun-Times then relies on the Supreme Court case, The Fla. Star v. B.J.F., 491 

U.S. 524, 534 (1989), for the proposition that reliance on the government as a source

Case: 1:12-cv-00658 Document #: 119 Filed: 03/20/18 Page 9 of 12 PageID #:1030
10

protect itself from punishment for disclosing that information. Def. Response, p. 8. 

However, the difference between this case and The Fla. Star is that the Florida Star 

lawfully obtained the information, where as here, the Sun-Times violated the DPPA when 

it knowingly obtained Plaintiffs’ personal information. The Seventh Circuit explained the 

difference between the Florida Star Defendant and Sun-Times, finding that the Sun-times 

cites “no authority for the proposition that an entity that acquires information by breaking 

the law enjoys a First Amendment right to disseminate that information. Instead, all of the 

many cases on which Sun-Times relies involve scenarios where the press's initial 

acquisition of sensitive information was lawful.” Dahlstrom, 777 F.3d 937, contrasting SunTimes with defendants in The Fla. Star v. B.J.F., 491 U.S. at 533 and Smith v. Daily Mail 

Publ'g Co., 443 U.S. 97, 103, (1979).

The Sun-Times then argues that the Seventh Circuit was incorrect finding that

“motor vehicle records were not a “common and ubiquitous’ news source”, and therefore,

American Civil Liberties Union of Illinois v. Alvarez, 679 F.3d 583 (7th Cir. 2012), is 

analogous to the case at hand. Def. Response, pp. 11-12. However, the Seventh Circuit

made the distinction between the cases because ACLU was about an eavesdropping 

statute that restricted “the use of a common, indeed ubiquitous, instrument of 

communication" and found that “the act of harvesting information from driving records is 

hardly such an instrument.” Dahlstrom, 777 F.3d 937, quoting, ACLU, 679 F.3d at 596. 

The Seventh Circuit’s application and contrast of ACLU to the facts at hand had nothing 

to do with a “common news source” 

Case: 1:12-cv-00658 Document #: 119 Filed: 03/20/18 Page 10 of 12 PageID #:1031
11

Finally, the Sun-Times cites Graczyk v. W. Pub. Co., 660 F.3d 275, 279 (7th Cir. 

2011), for the proposition that “a publisher cannot be liable for obtaining DMV 

information absent unlawful use.” However, Graczyk does not hold such a proposition at 

all. Instead, the Seventh Circuit held that since the publisher disclosed “personal 

information” under one of the DPPA’s permissible use exemptions, then the publisher 

could not be held to have violated the DPPA by merely obtaining that information, as 

“there is no meaningful difference” between the publisher’s purposes for obtaining and 

publishing the information. Id.

CONCLUSION

The Court’s manifest error of the law in applying a balancing test to Plaintiffs’ 

obtainment claim directly contradicts the Seventh Circuit’s ruling that the DPPA’s 

prohibition on obtainment need only be rationally related to a legitimate government interest.

Thus, this Court should have granted Plaintiff’s Motion for Judgment on the Pleadings with 

regard to their obtainment claim.

WHEREFORE, Plaintiffs request that this Honorable Court reconsider its September 29, 

2016, Opinion and Order, and issue an order granting judgment in favor of Plaintiffs on their 

DPPA obtainment claim and any other relief it deems proper.

By: /s/ Ronald C. Dahms

 Attorney for Plaintiffs

Law Offices of Ronald C. Dahms

540 North Frontage Road, Suite 3020

Northfield, Illinois 60093

(312) 609-0060

Case: 1:12-cv-00658 Document #: 119 Filed: 03/20/18 Page 11 of 12 PageID #:1032
12

CERTIFICATE OF SERVICE

I, the undersigned, state that I served the foregoing Reply in Support of Plaintiffs’ Motion to 

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

District of Illinois, on March 20, 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 #: 119 Filed: 03/20/18 Page 12 of 12 PageID #:1033