In the

United States Court of Appeals

For the Seventh Circuit

No. 98-3135

JODIE S. ABBOTT, DAVID M. BALMES, 

DEBORAH J. COMBS, et al.,

Plaintiffs-Appellees,

v.

VILLAGE OF WINTHROP HARBOR,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 93 C 4642--David H. Coar, Judge.

Argued September 14, 1999--Decided March 8, 2000

 Before BAUER, ROVNER and EVANS, Circuit Judges.

 Bauer, Circuit Judge. Sixty-seven plaintiffs,

mostly current and former employees of the

Village of Winthrop Harbor police department,

sued the Village of Winthrop Harbor ("Village")

and its police chief, Kenneth Miller ("Miller"),

individually and in his official capacity as the

Chief of Police of the Winthrop Harbor Police

Department, after learning that Miller

surreptitiously recorded their personal telephone

calls made from what they believed was an

untapped line at the police department. Their

Complaint alleged violations of the Federal

Wiretap Act, the Fourth Amendment and various

pendent state law claims./1 The District Court,

after hearing evidence, found in favor of the

plaintiffs and against both defendants and

awarded the statutory damages of $10,000 per

plaintiff accorded by the Federal Wiretap Act.

The District Court, despite also finding

liability under sec.1983, declined to award

plaintiffs damages under that act. The Village

now appeals, claiming that it is not amenable to

suit under the Federal Wiretap Act and that

Miller’s furtive recording of the telephone line

was done for his own personal reasons and not in

furtherance of any municipal policy which could

subject it to sec.1983 liability. We agree and

reverse the District Court’s judgment against the
Village of Winthrop Harbor under both the Federal

Wiretap Act and sec.1983.

I. BACKGROUND

 In November, 1992, the employees of the

Winthrop Harbor Police Department discovered that

the (708) 746-3868 ("3868") telephone line in the

department was tapped. The 3868 line was the

published non-emergency administrative line for

the fire and police department and the designated

line for personal calls. The plaintiffs had, for

several months, suspected that their calls were

recorded because their police chief made comments

to them about things they had only told friends

and family during conversations on that line.

Understandably upset over this deception and

invasion of their privacy, the employees and some

of their friends and family with whom they had

the intercepted conversations filed suit. The

question with which we are presented is whether

the municipality can be liable for the

surreptitious recording by its police chief.

Miller was found liable by the District Court

following a bench trial and he does not appeal.

 In the Fall of 1991, the residents of Winthrop

Harbor passed a referendum approving a tax to

install a new 911 system within the Village.

Under Illinois law, whenever a municipality

imposes a surcharge to pay for the cost of a new

(or improved) Emergency Telephone System, it must

establish an Emergency Telephone System Board

("ETSB" or "Board") to plan the 911 system,

implement and maintain it. 50 ILCS 750/15.4. The

Board’s powers and duties also include the hiring

of persons to install, maintain and upgrade the

system, the authorizing of expenditures and the

filing of all necessary applications with the

Illinois Commerce Commission ("ICC"). One of the

Board members testified at trial that the purpose

of submitting paperwork to the ICC was to

identify "all the content of the system, what the

intent of the system was for, what lines were to

be used on it, what lines were not going to be

used on it." 

 Chief Miller was appointed by the mayor to head

Winthrop Harbor’s ETSB and he was thus intimately

familiar with the decisions of the Board and the

new system as planned. The most prominent feature

of the new 911 system was the recording of the

previously unrecorded police department telephone

lines and radio frequencies. 

 The ETSB chose Ameritech and Lanier World Wide

("Lanier") to install and maintain the 911

system. The Lanier recorder purchased by the

Village was a reel-to-reel continuous recording

10-track recording device, with a tape that ran
for just over 25 hours. Three 911 lines, the

2131, 2133, 2140 non-emergency telephone lines

and four radio channels were connected to it./2

The only line that was not connected to the

recorder was the 3868 line./3 The Board

deliberately decided that that line would remain

unrecorded because it was the line used by

employees for personal calls. 

 The ETSB verified with the Ameritech installers

following the connection that the 911 system was

set up in this way, in accordance with the 911

application submitted to the ICC. They were

assured by the installers that it was. The ETSB,

in accordance with reporting procedures, informed

the Village board of trustees that the system was

set up and functioning in this manner. 

 

 

 On September 27, 1991, Miller issued a

memorandum to all police department employees

which stated in part: "911 is now on line, all

phones except 746-3868 are being recorded and all

radios are being recorded. When placing a phone

call that is police related it will be done on a

recorded line." Miller testified at trial that he

intended this memo to inform employees that

"nonpolice related things would be on an

unrecorded line." In other words, he wanted

personal calls made on the 3868 line. 

 Eleven months later, in August, 1992, Chief

Miller had a contractor connect the 3868 line to

the Lanier recorder. He had it done in a

secretive manner, avoiding the use of the Lanier

representative who made all of the service

repairs to the system and asking the independent

contractor who performed the hook-up not to tell

anyone what he had done. Furthermore, Miller did

not ask to have an audible beep put on the line

so that callers would know that the line was

being recorded and none was put on. 

 The decision to connect the 3868 line to the

911 system was made without the knowledge or

consent of the ETSB, the mayor and the Village

trustees, and they never found out about the

recording because neither Miller nor his

contractor ever submitted a bill for the work.

Indeed, the only persons that Miller told about

the recording of the 3868 line were

Telecommunications Supervisor Ortiz and Deputy

Chief Commons. Ms. Ortiz was instructed by Miller

that she should listen to conversations recorded

on the 3868 if she thought they might be "of

interest" to him.

 During the next three months, Ortiz made a tape

of a call made by plaintiff Jodie Abbott and gave
it to Miller. She also transcribed other

conversations for him. On occasion, Miller would

make remarks to his employees about the substance

of the recorded conversations. When asked where

he got his information, on one occasion, Miller

replied that "a little bird" told him. 

 The secret recordings continued for three months

until the department employees learned from a

Lanier service representative that the line was

tapped. Even then, the recording continued. The

3868 line was not disconnected from the Lanier

recorder until May, 1993, when Miller learned of

a lawsuit in McHenry County regarding the

recording of a phone line without notice. 

 Miller testified that as police chief he

believed he was the person with decision-making

authority regarding the telephone system. He

stated that one of the reasons why he tapped the

3868 line was because he was concerned that

employees spent too much time away from work on

the phone. He also claimed to be concerned about

the long distance personal calls being made by

employees. The District Court found these reasons

to be pretextual and not within the protective

ambit of the Federal Wiretap Act’s law

enforcement exemption as the recording was not

done in the ordinary course of police business.

Indeed, the District Court made a specific

finding that Miller’s motivation was personal,

"to intercept the private calls of his

employees." Statutory damages of $10,000 per

plaintiff were awarded, along with attorneys’

fees and costs. 

 In concluding that the Village was also liable

under sec.1983, the District Court noted that the

decision to connect the 3868 line to the 911

system was a matter that affected the "internal

operation" of the police department, and pursuant

to local ordinance the police chief was allowed

to make rules and regulations that affected the

internal operation of the police department.

Therefore, the Court reasoned, because he, and

not someone else within the Village, had the

final policy-making authority on decisions about

whether to record police lines, his actions

subjected the Village to liability. No additional

damages were awarded to the plaintiffs for the

sec.1983 violation.

II. DISCUSSION

 This case was tried, without a jury, to the

District Court. We review the District Court’s

conclusions of law de novo. Eyler v. C.I.R., 88

F.3d 445, 448 (7th Cir. 1996). Factual

determinations, as well as the application of

legal principles to those factual determinations,
are reviewed for clear error. Estate of Whittle

v. C.I.R, 994 F.2d 379, 381 (7th Cir. 1993);

Business Records Corp. v. Lueth, 981 F.2d 957,

959 (7th Cir. 1992).

 A. The Federal Wiretap Act

 Congress enacted the Federal Wiretap Act "for

the dual purpose of protecting the privacy of

wire and oral communications, and delineating the

conditions under which such communications may be

intercepted." Jandak v. Village of Brookfield,

520 F.Supp. 815, 819 (N.D. Ill. 1981) (citing S.

Rep. No. 1097, 90th Cong., 2d Sess. (1968)). The

Village, found liable for Miller’s secret tape

recording, challenges the judgment against it,

arguing that the Act is inapplicable to

municipalities. The plain language of the statute

bears that out. 

 The Act provides that "any person who--(a)

intentionally intercepts, endeavors to intercept,

or procures any other person to intercept or

endeavor to intercept, any wire, oral or

electronic communication" shall be found in

violation of the statute and subject to civil or

criminal penalties. 18 U.S.C. sec.2511(1)(a).

"Person" is defined 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. sec.2510(6). As

written, the statute does not include a

municipality within its definition of "person."

Absent a clearly expressed legislative intent to

the contrary, the statutory language must be

regarded as conclusive. Milwaukee Gun Club v.

Schulz, 979 F.2d 1252, 1255 (7th Cir. 1992)

(citation omitted).

 Plaintiffs argue that the Act’s specific

provision for recovery of civil damages against

any "person or entity" who violates the Act is

contrary proof that Congress intended to subject

municipalities to liability. See 18 U.S.C.

sec.2520(a). As enacted in 1968, the Act

authorized recovery of civil damages only against

a "person" and made no mention of an "entity." In

1986, however, Congress amended portions of the

Act, and inserted "entity" into sec.2520.

Plaintiffs believe this means that Congress now

intends for governmental units to be liable to

those whose wire, oral or electronic

communication are wrongly intercepted. We

disagree.

 The legislative history is silent as to the

reason behind the addition of the term "entity"

in sec.2520(a). As the court in Amati v. City of
Woodstock, 829 F.Supp. 998 (N.D. Ill. 1993)

concluded, "[i]t is unreasonable to conclude that

Congress intended to subject an entire class of

defendants to potential liability without any

expression of that intent in the legislative

commentary." Id. at page 1003. In an excellent

discussion of the history of the Federal Wiretap

Act, the Amati court also recounts the numerous

proofs that Congress intended to exclude

governmental entities from those subject to

liability under the Act. Id. at 1001-03. We, too,

are persuaded that municipalities are immune from

suit, not only because of the corroborating

testimony in the legislative history, but simply

because Congress has never amended the definition

of "person" in sec.2510(6). That definition

unequivocally excludes local governmental

entities from its definition of person and

continues to apply to the entire chapter. 

 Contrary to plaintiffs’ assertions, our holding

in Davis v. Zirkelbach, 149 F.3d 614 (7th Cir.

1998), does not create a cause of action against

municipalities under the Federal Wiretap Act. In

that case, we did not reach the question of

whether governmental entities come within the

ambit of entity liability in sec.2520 because we

found that the plaintiff had presented no

evidence "that the City had a policy or practice

of unlawfully using intercepted communications in

violation of the Federal Wiretap Act . . . or

sec.1983," a prerequisite to a finding of

liability under either statute. Id. at 621. Since

there was no evidence for us to consider, we did

not decide, implicitly or explicitly, whether

municipalities were amenable to suit under the

Federal Wiretap Act.

 B. Section 1983

 The plaintiffs contend that the interception of

their phone calls violated their Fourth Amendment

rights, giving rise to a cause of action under

sec.1983. The Fourth Amendment guarantees

citizens the right to be free from unreasonable

search and seizure. See Katz v. United States,

389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576

(1967). The Village argues that it did nothing to

deprive the plaintiffs of any federally protected

right and therefore it cannot be civilly liable

to them. Winthrop Harbor maintains that it was

Miller’s departure from its policies, not the

policies themselves, that caused plaintiffs’

harm. 

 In order to find a municipality liable under

sec.1983, the plaintiffs must prove that a

municipal policy or custom caused their injury.

City of St. Louis v. Praprotnik, 485 U.S. 112,
108 S.Ct. 915, 99 L.Ed.2d 107 (1988); Pembaur v.

Cincinnati, 475 U.S. 469, 480-81, 106 S.Ct. 1292,

1298-99, 89 L.Ed.2d 452 (1986). This is because

"[m]unicipalities are answerable only for their

own decisions and policies; they are not

vicariously liable for the constitutional torts

of their agents." Auriemma v. Rice, 957 F.2d 397,

399 (7th Cir. 1992), quoting Monell v. New York

Department of Social Services, 436 U.S. 658, 98

S.Ct. 2018, 56 L.Ed.2d 611 (1978). Following

these principles, we must decide whether the

plaintiffs’ injury was inflicted solely by Chief

Miller, or whether the harm was done pursuant to

some municipal policy or custom, keeping in mind

that "a local government may not be sued under

sec.1983 for an injury afflicted solely by its

employees or agents. Instead, it is when

execution of a government’s policy or custom,

whether made by its lawmakers or by those whose

edicts or acts may fairly be said to represent

official policy, inflicts the injury that the

government as an entity is responsible under

sec.1983." Monell, 436 U.S. at 693.

 Courts have identified three ways in which a

municipality can be liable to a plaintiff for a

civil rights violation resulting from government

policy:

(1) an express policy that, when enforced,

causes a constitutional deprivation; (2) a

widespread practice that, although not authorized

by written law or express municipal policy, is so

permanent and well-settled as to constitute a

custom or usage with the force of law; or (3) an

allegation that the constitutional injury was

caused by a person with final policymaking

authority.

Baxter v. Vigo County School Corp., 26 F.3d 728,

735 (7th Cir. 1994) (internal quotations and

citations omitted). Plaintiffs here must, then,

demonstrate either that it was the official,

written policy of the government to violate

employees’ privacy, that it was a widely accepted

and known custom of the Village to listen in on

its employees’ private conversations, or that

Chief Miller had the final authority to decide

whether to furtively record employees’ telephone

calls without notice to the callers. 

 We do not see any evidence in the record before

us that it was the policy of the Village of

Winthrop Harbor to secretly record employees’

telephone conversations. Nor do we find that

there was a widespread practice or pervasive

pattern of such conduct. Thus, we turn our

attention to the question of whether Miller had

the final policymaking authority for the decision

to connect the 3868 line to the 911 system’s
recorder so as to subject the Village to sec.1983

liability. We begin by noting that whether Miller

was a person with final policymaking authority is

a question of state law. Pembaur, 475 U.S. at

483.

 The Village argues that the final policymaking

authority regarding the 3868 line belonged to the

ETSB, not Miller. They note that pursuant to law,

an Emergency Telephone System Board must be

established to plan the new emergency telephone

system. 50 ILCS 750/15.4. The Illinois

legislature charges the ETSB with the

responsibility of "planning" the system,

"coordinating and supervising the implementation,

upgrading or maintenance of the system,"

"receiving monies from the surcharge or tax,"

"authorizing all disbursements from the fund" and

"hiring" any persons necessary to install or

maintain the system. 50 ILCS 750/15.4(1)-(5).

This is a very broad grant of authority which

seems to encompass all facets of the Village’s

911 system.

 Nonetheless, the District Court determined that

Miller had final policymaking authority to

connect the 3868 line into the 911 system.

Relying on a local ordinance which gives the

police chief the authority to "make or describe

such rules and regulations for the internal

operation of the police department as he sees fit

and proper," the Judge found that the decision to

connect the 3868 line to the 911 recording system

affected the internal operation of the police

department, and was not something that the chief

needed to have approved by other Village

authorities. The Court cited as support the fact

that on neither occasion, either when connecting

or disconnecting the 3868 line to the 911

recorder, did Miller seek the Board’s approval.

The Judge also was persuaded by Miller’s

testimony that, pursuant to his authority to run

the police department, he made decisions on all

matters except personnel and the budget. 

 These facts, however, have little to do with

where the law places the authority for the

decision. "[A] federal court would not be

justified in assuming that municipal policymaking

authority lies somewhere other than where the

applicable law purports to put it." Praprotnik,

485 U.S. at 126. Here, the Illinois legislature

has placed the final policymaking authority with

the ETSB, not with the police chief. 50 ILCS

750/15.4. Also, the Illinois courts have held

that a municipality’s 911 system is an emergency

service, not a police protection service. Barth

by Barth v. Board of Education, 141 Ill.App.3d

266, 279-280, 490 N.E.2d 77, 85-86, 95 Ill.Dec.

604, 612-613 (1st Dist. 1986); City of Peoria v.
Illinois Commerce Commission, 132 Ill.App.3d 835,

838-39, 477 N.E.2d 749, 751, 87 Ill.Dec. 623, 625

(3rd Dist. 1985). Thus, consistent with these

authorities, we find that the final policymaking

authority to authorize the connection of a

telephone line to the 911 system rested with the

ETSB and not the police chief. Although the

police chief may have sweeping powers to conduct

his department as he sees fit, those powers are

limited, in this case by the Illinois Commerce

Commission’s and the ETSB’s authority to regulate

the content of Winthrop Harbor’s 911 emergency

system. Once Miller connected the 3868 line to

the recorder, it became part of the 911 system

and under the control of the ETSB.

 This finding is buttressed by the fact that the

ETSB was required to, and did, fill out paperwork

identifying the content of the system, its

purpose, what lines were a part of it and what

equipment was to be used, and submitted it to the

ICC for approval. Any alteration to the 911

system would have required an amendment to the

Village’s application. Thus, we are convinced

that it was the ETSB, and not Miller, who was

authorized to establish the Village’s policy with

regard to the recording of the 3868 line. The

Village chose not to record the line. Miller’s

actions frustrated rather than implemented that

policy. 

 Finally, we note that the District Court

specifically found that Miller’s purpose for

taping the 3868 line was "not related to the

ordinary course of police business," and that his

primary motivation was "to intercept the private

calls of his employees." In other words, the

District Court believed that Miller’s actions

were done for personal reasons. This conclusion,

that Miller was implementing no policy other than

his own, ensures victory for the Village.

III. CONCLUSION

 For the foregoing reasons, the judgment of the

District Court is reversed and this cause is

remanded to the District Court with instructions

to enter judgment in favor of the Village of

Winthrop Harbor and against the plaintiffs on

both the Federal Wiretap Act count and the

Section 1983 count.

REVERSED.

/1 Only the claims under the Federal Wiretap Act, 18

U.S.C. sec.2510 et seq., and the claims under the

Civil Rights Act of 1871, 42 U.S.C. sec.1983, for

the Fourth Amendment violations are at issue

here.
/2 All of the recorded telephone lines had a beep

tone on them to signal callers that the lines

were being recorded. However, no beep tone was

put on the recorded radio channels. 

/3 This is consistent with the paperwork submitted

by the ETSB to the ICC which showed that the 3868

line was supposed to be unrecorded.