official policy, inflicts the injury that the government as an
entity is responsible under §1983.” In that respect Abbott, 205
F.3d at 981 has reconfirmed three possible bases for municipal
liability under Section 1983:

(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.

Here Narducci has provided sufficient evidence that the
taping scheme could “fairly be said to represent official
policy,” as Monell requires, by demonstrating that the taping was
an “express policy.” Both Mayor Lemm and the Bellwood Board--who
together set Bellwood policy--expressly authorized the taping of
Finance Department phone calls. Hence Bellwood itself as well as
the individual defendants must face the Section 1983 music.**

Title IIT Claims

As stated at the outset, Narducci also charges that Moore

and Lemm violated Title III, which in part provides a civil

remedy against any person who “intentionally intercepts,

endeavors to intercept, or procures any other person to intercept

1 oN, Mem. 12-14 also asserts that the taping constituted
“a custom and practice with the force of law” and that the taping
was devised and implemented by “individuals with final policy
making authority.” Those alternative grounds appear persuasive
as well, but they need not be explored fully under the
circumstances.

20


2. As to the class members whom Narducci represents,
any rulings against defendants that may hereafter follow
under the circumstances referred to in Paragraph 1 may give
rise to offensive issue preclusion. Whether or not such is
the case, counsel for the parties are also expected to
discuss the procedure and timing for addressing the class
claims.

Finally, this action is set for a status hearing at 8:45 a.m.

August 22, 2006.

x:
(hor? eau

Milton I. Shadur
Senior United States District Judge

Date: August 11, 2006

37


recording would qualify as “work-related.” In general, work-
related searches are those “focused primarily on the need to
complete the government agency’s work in a prompt and efficient
manner,” rather than on pursuing a particular criminal
investigation (Q’Connor, 480 U.S. at 721 (plurality opinion)).
Each of the suggested reasons for taping--ending the intimidation
of Finance Department employees by customers and reducing
employee misconduct, either in terms of excessive personal calls
or rude and unprofessional behavior--clearly fits that
description.

But even under the less rigorous reasonableness standards
that govern work-related workplace searches, Narducci has
tendered enough evidence to support a ruling that Lemm and
Moore’s actions violated his Fourth Amendment rights. Defendants
do appear to have had a number of legitimate justifications for
initiating the recording scheme, such that the first element of
“reasonableness” is met. But they fail to satisfy the second
element of reasonableness, for “the measures taken by [them]”
were not “reasonably related to the search's objective,” and they
were “overly intrusive” (Gossmeyer, 128 F.3d at 491).

For example, as to the primarily asserted purpose of
addressing threats to Finance Department employees, no
justification has been offered for the failure to notify the

employees (and perhaps the parties to whom those employees were

14


County of Greenville, 237 F.3d 386, 392 (4 Cir. 2001)).

Even though Moore had no role in the initial taping decision
or the initial implementation of the taping scheme, Narducci has
provided evidence, which must be credited for this purpose,

(1) that Moore later became aware of that scheme, (2) that he had
the power to stop it and (3) that he failed to do so. That
adequately supports an inference that Moore’s action, or failure
to act, was “intentional” under Section 2511(1) (a). Summary
judgment as to the Title III claim on that ground must be and is
denied.

3. “Law Enforcement” Exception

Defendants also contend that recording the Finance
Department phone calls qualifies for the “law enforcement
exception” under Section 2510(5) (a) (ii). Under that exception
the recording of communications “by an investigative or law
enforcement officer in the ordinary course of his duties” does
not give rise to Title III liability. But a communication is not
viewed as having been recorded in the “ordinary course” of an
officer’s duties if it is done to further a particular

investigation or target a particular individual (Amati, 176 F.3d

at 955-56). Instead it must be part of a “routine
noninvestigative recording” of communications (Amati, 176 F.3d at
955). For example, the routine taping of all calls into and out

of a police station (id.) or the taping of all prison inmates

24


Department and managed by the “service commander” (N. Add. St.
q{31-32).

In 1993 Joe Lagen (“Lagen”) was Bellwood’s comptroller (D.
St. 930), Robert Frascone (“Frascone”) was its Chief of Police
(N. Add. St. 4147), Paul Keller (“Keller”) was a trustee and
served as chair of the Finance Committee (D. St. 9984, 94),
Modrow was the Police Department’s service commander (N. Add. St.
434) and Lemm began to serve his first term as Mayor (D. St.
9117). That cast of characters was in place when, sometime
before January 4, 1994, Finance employees began to be threatened
by irate customers (D. St. 9947-52). In response Lagen came to a
“pre-board” meeting to propose that calls on the Finance
Department lines also be recorded (id. 91997, 101; N. Add. St.
9173). Lagen added as a secondary reason that “employees in the
finance department were on the phone too much making personal
calls” (D. St. 954). Lemm and the entire Board, among others,
were present at that meeting (N. Add. St. 4174). There the Board
authorized Lagen to carry out the proposed recording of calls (D.
St. 9108-110; N. Add. St. 9179). Lemm also approved the plan
(D. St. 9171) and also supported the taping, at least in part
because his office had received complaints about disrespectful
and unprofessional behavior by Finance Department employees (id.
99157-59).

Next the Board requested that the “Emergency Board” connect


from Narducci’s state law claims.

Moore’s entitlement or disentitlement to immunity calls for
a more complex analysis. In his case it is the failure to stop
the recording that Narducci alleges caused his injury. But in
order to lose the possible benefit of the state-decreed statutory
immunity in that respect, Moore would have to lack the authority
to order the recording to be stopped--after all, it would be
necessary that he possess such authority to begin with before his
failure to act in that regard could be the result of an “exercise
of personal deliberation and judgment” (Wrobel, 318 I11.App.3d at
394-95, 742 N.E.2d at 406). In the absence of such authority
(and only in the absence of such authority), Moore’s bid for
Section 2-201 immunity would have to be denied.

But that would impale Narducci on the other horn of a
dilemma. It will be recalled that both the Eavesdropping Act and
the state common law claim share the requirement that Moore’s
inaction--his failure to stop the recording of phone calls-~~had
to be intentional. But if Moore lacked the authority to do so
(which is the just-stated precondition to Narducci’s escaping the
clutches of the Immunity Act), Moore cannot be tagged with an
“intentional” failure in that regard--and that would directly
spell doom for both of Narducci’s state law claims. Hence
whatever view is taken as to Moore’s authority or lack of it,

Narducci’s state law claims against him succumb as a matter of

35


or endeavor to intercept, any wire, oral, or electronic
communication” (18 U.S.C. §2511(1) (a)'*). Protecting the privacy
of individuals “was an overriding congressional concern” in

enacting Title III (Gelbard v. United States, 408 U.S. 41, 48

(1972)), and to effectuate that purpose Section 2511 instituted a
stringent standard for wiretaps, foreclosing their use unless
explicitly excepted.

In response to Narducci’s Title III claims, Moore and Lemm
have raised several defenses, contending that qualified immunity
again applies, that Moore lacked the requisite intent and that
the complained-of actions fall under both the “law enforcement”
and “consent” exceptions to Title III liability. Analysis shows,
however, that none of those arguments warrants dismissal of
Narducci’s Title III claims.

1. Qualified Immunity

Defendants’ reply memorandum raises, for the first time in
the Rule 56 proceeding, a qualified immunity defense to
Narducci’s Title III claims. While our Court of Appeals (see

Davis v. Zirkelbach, 149 F.3d 614, 618 (7 Cir. 1998)) does

appear to agree with the Eleventh Circuit (Tapley v. Collins, 211
F.3d 1210, 1216 (11 Cir. 2000)) and Sixth Circuit (Blake v.

Wright, 179 F.3d 1003, 1013 (6 Cir. 1999) that qualified

2 Further citations to Title III will take the form
“Section --,” omitting the repeated reference to 18 U.S.C.

21


steps inconsistent with consent to the taping” (such as ceasing
to make “confidential or private calls” from Finance Department
phones while also (1) demanding that the taping cease and

(2) informing the FBI and the State’s Attorney), any post-
discovery calls he may have made were instituted with the
knowledge that they were being taped, thus arguably falling under
the consent exception to Title III liability. Even under that
view, of course, any recordings of Narducci’s calls made before
that date can enjoy no such protection.”

State Law Claims

In addition to his federal claims, Narducci has asserted
both that defendants violated the Eavesdropping Act and that they
tortiously intruded into his “seclusion” in violation of Illinois
common law. In response defendants have argued (1) that Moore’s
lack of “any knowledge whatsoever” about the recording of Finance
Department phone calls precludes liability under the
Eavesdropping Act, (2) that Narducci has failed to establish all
the elements of an intrusion-upon-seclusion claim and (3) that in
any case the Illinois Local Government and Governmental Employees
Tort Immunity Act (“Immunity Act”) (745 ILCS 10/1-101 to 10/10-

101) insulates Moore and Lemm from liability for both alleged

M4 Narducci points out accurately that the consent

standards would apply equally to the interceptions of calls to or
from “vendors, citizens, employees and other” class members, So
that any calls in which neither party was aware of the
interception would not qualify for the consent exception.

27


Trs. v. Ind, Univ., 453 F.3d 390, 395 (7 Cir. 2006) and Hart v.

Transit Mgmt. of Racine, Inc., 426 F.3d 863, 867 (7° Cir.

2005) (per curiam)) that parties who raise arguments for the first
time in a reply memorandum rather than in their initial
submission--thereby denying the opposing party an opportunity to
respond--are deemed to have waived (or, more accurately,
forfeited) those arguments. That principle has extra force here,
for defendants were obviously aware of the concept of qualified
immunity (their initial Mem. 10-11 raised that defense as to
Narducci’s Section 1983 claims), yet they said not a word on that
score in the context of Title III. Under the circumstances that
potential defense has been forfeited and will not be entertained.
2. Moore’s Intent

As Moore points out, liability under Section 2511(1) (a)
depends on defendant’s having “intentionally” intercepted a
communication. In other words, the interception “must have been
the result of defendant’s conscious objective rather than the

product of a mistake or an accident” (United States v. Townsend,

987 F.2d 927, 930 (2d Cir. 1993)}). That does not, however,
require any intent to violate the law, or even any knowledge that
the interception would be illegal (Earley v. Smoot, 846 F.Supp.
451, 453 (D. Md. 1994)). Nor is an affirmative act, rather than
an omission, required. It is enough to be aware that such

interception is occurring and to fail to stop it (see Abraham v.

23


law.
Conclusion

This opinion’s lengthy analysis has revealed genuine
questions of material fact as to many of the issues in this case.
This Court therefore denies defendants’ Rule 56 motion except as
to (1) Narducci’s state law claims against both Lemm and Moore
and (2) any Title III claims based on calls made after Narducci
became aware that those calls were being recorded.

Two other matters have been brought into sharp focus by the
current analysis and the related question of “where do we go from
here?”:

1. It has become clear that Narducci’s evidence has
not only proved sufficient to prevent defendants from
prevailing on summary judgment but has also raised serious
questions--at a minimum--as to defendants’ ultimate ability
to prevail at trial, particularly as to Lemm’s and
Bellwood’s liability under Section 1983.'* Counsel should
be prepared to discuss that subject at the next status

hearing.

19 This opinion has repeatedly stressed that it has

credited Narducci’s version of the facts for present purposes
(Narducci did not counter with a cross-motion for summary
judgment, so this opinion was not called upon to adopt a Janus-
like dual perspective as to any disputed factual matters). But
the Background section of this opinion does not appear to suggest
that any inference drawing, let alone any resolution of differing
views of the facts, is needed to establish Narducci’s entitlement
to prevail on his claims that have survived the current motion.

36


that the taping scheme was reasonably related to its purported
purposes. To recap the bidding, none of the rationalizations
voiced by defendants could reasonably justify the lack of
notice,’ the indiscriminate taping of both incoming and outgoing
calls and the maintenance of the scheme well after the complaints
and threats had ceased. Defendants’ failure ever to review, let
alone to use, the products of that scheme only further
underscores its obviously unnecessarily broad and intrusive
contours.

In an attempted defense of their qualified immunity claims,
each of Moore and Lemm contends that it was not clear that
Narducci would have had a “reasonable expectation of privacy” in
the workplace, so that their search thus would not have been
illegal. But even if that were so (a doubtful proposition in any
event), Shields, 874 F.2d at 1203-04 and Gossmeyer, 128 F.3d at
490-91 make it plain that although the absence of an expectation
of privacy may make a warrant and probable cause unnecessary,
such absence does not alter the requirements of O’Connor’s

reasonableness standard.

9 D., R. Mem. 4-5 does briefly claim that Moore had reason

to think the taping was legal because “based on his own
experience, [he] believed that notice was given that the lines
were being recorded via use of an audible signal on the phone
line.” But defense counsel have to know better: They cite no
evidentiary support, nor does their LR 56.1 filing justify any
statement either that Moore believed that the employees had
notice or that he believed there was a signal on the line.

18


the implementation of that decision.®

To be sure, Section 1983 liability “require[s] personal
involvement in the alleged constitutional deprivation” (Palmer v.
Marion County, 327 F.3d 588, 594 (7** Cir, 2003)). At first
blush, then, the fact that Moore had no direct role in the
initial approval or implementation of the taping might indeed
suggest that he cannot be held liable. But that standard is not
applied as strictly as its language--and Moore--might suggest.

In fact, “direct participation in the deprivation [of a
constitutional right] is not required” (Rascon v. Hardiman, 803
F.2d 269, 274 (7 Cir. 1986), quoting Smith v. Rowe, 761 F.2d
360, 369 (7 Cir. 1985})). Instead “[a]n official satisfies the
personal responsibility standard of section 1983 if [he] acts or
fails to act with a deliberate or reckless disregard of
plaintiff’s constitutional rights” (Rascon, 803 F.2d at 274). It
is enough for a defendant to have “know[n] about the conduct and
facilitate[d] it, approve[d] it, condone[d] it, or turn[ed] a
blind eye” (Gentry v. Duckworth, 65 F.3d 555, 561 (7*" Cir.

1995), quoting Jones v, City of Chicago, 856 F.2d 985, 992 (7

S Defendants’ R. Mem. 2-3 also suggests that Moore is not

liable because even if he was aware of the taping he “had no
knowledge that the taping was illegal.” That contention really
previews his qualified immunity defense that is addressed later.
For now it suffices to note that qualified immunity “focuses on
the objective legal reasonableness of the action, not the state
of mind or good faith of the officials in question” (Erwin v.
Daley, 92 F.3d 521, 525 (7% Cir. 1996))

10


to an emergency call are not “discretionary” decisions because
they are not unique to the trooper’s position but are made by all
drivers (Currie v. Lao, 148 I11.2d 151, 167, 592 N.E.2d 977, 984
(1992)). Policy-determining acts, on the other hand, “require...
[an] employee to balance competing interests and to make a
judgment call as to what solutions will best serve each of those

interests” (Harrison v. Hardin County Cmty. Unit Sch. Dist.

No. 1, 197 Ill.2d 466, 472, 758 N.E.2d 848, 852 (2001)). In
applying those standards Illinois courts have found that a fire
marshal’s actions in planning and conducting a fire drill
(Harinek, 181 I11.2d at 342-43, 692 N.E.2d at 1181-82), a shop
teacher’s removal of a safety shield from a table saw (Courson v.

Danville Sch. Dist. No. 118, 333 Il1l.App.3d 86, 91, 775 N.E.2d

1022, 1026 (4 Dist. 2002)) and even the filling of potholes by
city maintenance workers (Wrobel, 318 Ill.App.3d at 394-96, 742
N.E.2a at 405-07) all qualified as both exercises of discretion
and determinations of policy.

Once the dual criteria have been met, the immunity bestowed
by Section 2-201 is absolute, extending even to “wiliful and
wanton” actions by an employee. While Illinois courts at one
time interpreted Section 2-201 immunity to contain such an
exception, that line of cases has been explicitly overruled by in

re Chicago Flood Litig., 176 I11.2d 179, 196, 680 N.E.2d 265, 273

(1997).

33


Defendants’ contention that the taping of Finance Department
phone calls is not sufficiently--that is, “highly”--offensive can
be quickly dispensed with. Eavesdropping via wiretapping has
been conspicuously singled out on several occasions as precisely
the kind of conduct that gives rise to an intrusion-on-seclusion
claim (see, e.g., Lovgren, 126 Ill.2d at 417, 534 N.B.2d at 989;
Thomas v. Pearl, 998 F.2d 447, 452 (7 Cir. 1993); Restatement
(Second) of Torts §652B cmt. b).

Nor can it be said that Narducci has provided insufficient
evidence of “anguish and suffering.” To satisfy that element
Narducci must show that the intrusion itself caused an “actual
injury in the form of, for example, medical care, an inability to
sleep or work, or a loss of reputation and integrity in the
community” (Schmidt, 329 I1l.App.3d at 1035, 768 N.E.2d at 316).
As the following discussion reflects, a trier of fact could
reasonably so conclude.

To begin with, Narducci (whose testimony must be credited at
this point) has sworn that he found the taping “objectionable”
and that he, like one of the plaintiffs in Schmidt (see id. at
1036-37, 768 N.E.2d at 317), stopped using work phones for his

private calls, particularly his confidential business calls to

intentionally to be actionable (Restatement (Second) of Torts
§652B). But just as in the Eavesdropping Act context, any
contention as to the absence of intentional action on Moore’s
part fails.

30


While Lemm and Frascone claim that Moore had the power to stop
the taping (N. Add. St. 919109, 157), Moore contends that he did
not (D. St. 991274, 280-81) .‘

In 1997 or 1998 Narducci replaced Lagen as Bellwood’s
comptroller (D. St. 991-2). During Narducci’s tenure he received
no complaints of rude or unprofessional behavior by Finance
Department employees, nor were there any reports of threats (N.
Add. St. 4923-25). Narducci served as an independent contractor
and worked at Bellwood two to three days a week, making phone
calls from “wherever there was an open desk” (D. St. 91, 5-6).
In addition to Bellwood-related calls, Narducci would also make
private calls--including calls conducting confidential business
with other villages for which he worked--using Finance Department
phones as well as his cell phone (id. (114, 18; N. Add. St. 11).
Narducci would generally make those calls in the “open area” of
the Finance Department (D. St. 9718), but when making a
confidential call he would move to a less congested area to
ensure the privacy of his conversation (Narducci Dep. 58-59).

Narducci first became aware that calls on the Finance

Department’s phones were being recorded during a meeting with

4 There is no single answer as to which of those versions

each supported by the record, is most advantageous to Narducci.

For some claims it will be better for Narducci if Moore had the

authority to stop the taping, while for others it will be better
if he did not. This opinion will adjust its factual assumptions
accordingly in the legal analysis that follows.

7


the Finance Department lines to the 911 recorder, and the
Emergency Board approved that request (N. Add. St. (968-69).
Lagen then had his secretary send Modrow a January 4, 1994 memo
instructing Modrow to begin recording five specific Finance
Department lines (D. St. 4165-66). Within 30 days the lines were
connected to the 911 recorder overseen by Modrow (id. 959; N.
Add. St. 9963-65). No notice of the recordings was posted on or
near the phones, and while initially there may have been an
audible beep on the recorded lines, it was eventually removed and
Narducci never heard one (N. Add. St. 91919, 50, 78, 159, 181,
203). No one was assigned to monitor those recordings, and Lagen
himself never listened to any of them (D. St. 9161-62}. Nor did
Lemm ever follow up with Lagen or anyone else as to the
effectiveness of the recordings (id. 4179).

In March 1996 Moore replaced Frascone as Police Chief (D.
St. 9257). As Chief Moore had the power to “enact police
policies and procedures” and to instruct Police Department
employees to do specific tasks (N. Add. St. 919133, 38). At some
point before taking office, Moore had been told that Finance
Department phone calls were being recorded (D. St. 91267). Once
he became Chief, even though he was unaware of any warrant having
been obtained, he took no steps to verify that such taping was
going on, nor did he act to stop the taping until instructed to

do so by the comptroller (id. 49270, 286; N. Add. St. 936).


Moore also argues that he could reasonably have presumed his
actions not to violate the Fourth Amendment because they were
legal under a federal statute--Title III. To begin with, his
premise of Title III legality is simply wrong (a subject
addressed later). But even were that not so, the contention is
certainly unreasonable when advanced in the face of the directly
relevant and already cited Fourth Amendment precedent to the
contrary.'°
3. Municipal Liability

Monell v. New York Dep’t of Soc. Servs., 436 U.S. 658, 690

(1978) established that municipalities are considered “persons”
for Section 1983 purposes and can therefore be subjected to

Section 1983 liability. But that liability must be direct and
not vicarious--Monell, id. at 694 teaches that the municipality
“may not be sued under §1983 for an injury inflicted 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

10 Nor can Moore and Lemm draw any comfort from their

appeals to Amati_v. City of Woodstock, 165 F.3d 952 (7 Cir.
1999) and Abbott v. Village of Winthrop Harbor, 205 F.3d 976 (7
Cir. 2000). Neither case clarified or modified the principles
previously established by Q’Connor, Gossmeyer and Shields.
Indeed, Amati does not even discuss the constitutional claim, for
that part of the verdict was not challenged on appeal (176 F.3d
at 954), and Abbott, 205 F.3d at 981-83, while mentioning the
underlying constitutional violation, does so in only the most
perfunctory manner before quickly moving on to focus on municipal
liability.

19


memorandum, however, has now voluntarily--and properly--dismissed
those claims, for he has failed to name any such additional
trustees or employees within the applicable statute of
limitations.

Claims Under 42 U.S.C. §1983

Narducci charges that each of the remaining defendants is
liable under 42 U.S.C. §1983 (“Section 1983”). Although not
itself a source of substantive rights, Section 1983 provides a
remedy where (1) there has been a violation of constitutional or
other federal rights and (2) those rights were violated by a

person acting under color of state law (Hanania_v. Loren-Maltese,

212 F.3d 353, 356 (7 Cir. 2000)). Here Narducci’s predicate
for the alleged Section 1983 violation is the taping of calls on
the Finance Department’s phone lines, which he claims constituted
an unreasonable search in violation of the Fourth Amendment.
While defendants raise a variety of counterarguments that they
claim entitle them to dismissal, none of those arguments warrants
such a result.
1. Moore’s Liability

Moore first contends that he cannot be held liable under
Section 1983 because he “had no involvement whatsoever with the
taping of the finance department telephone lines” (D. Mem. 5).
Moore notes in particular that he had no role in or knowledge of

either the initial decision to tape calls on those phone lines or


calls (United States v. Feekes, 879 F.2d 1562, 1565-66 (7'” Cir.

1989)) has commonly been held to come within that exception.

Here the actual recording was carried out by police officer
Modrow, and the phone lines were connected to the 911 emergency
system (which was located in, and overseen by, the Police
Department). Nevertheless, as explained below, the recordings
were not conducted in the “ordinary course” of law enforcement
duties as understood in this context, so that the law enforcement
exception does not insulate defendants against liability.

To the extent that the recording was done in an effort to
check up on asserted misbehavior by Finance Department employees,
it plainly did not come under the rubric of law enforcement. It
involved Finance Department lines rather than prison or police
department lines. Relatedly, the recording was done at the
request of the head of the Finance Department rather than of a
law enforcement official, and the recording was done for a
specific non-law-enforcement purpose. Nothing about Modrow’s
involvement or the hookup to the 911 system changes that
analysis.

As for the alternative basis proffered for the recording--as
part of an investigation of threats made against Finance
Department employees (a basis about which Narducci has certainly
raised a genuine question of fact in any case)--it too does not

qualify for the law enforcement exception. While such recording

25


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
NICHOLAS NARDUCCI,
)
Plaintiff, )
)
v. ) No. 01 C 1425

)
VILLAGE OF BELLWOOD, et al., )
)
)

Defendant.

MEMORANDUM OPINION AND ORDER

Nicholas Narducci (“Narducci”) has brought a four-count
class action Complaint against the Village of Bellwood
(“Bellwood” or “Village”), Bellwood’s Police Chief Gregory Moore
(“Moore”), Bellwood’s Mayor Donald Lemm (“Lemm”) and Unknown
Trustees and Employees of Bellwood, charging them with violations
of the Fourth Amendment,! of Title III of the Omnibus Crime
Control and Safe Streets Act of 1968 (“Title III”), of the
Illinois Eavesdropping Act (“Eavesdropping Act”) and of the
Illinois common law duty to refrain from unlawful intrusion into
the seclusion of another. After this Court had granted class
certification under Fed. R. Civ. P. (“Rule”) 23 and dismissed

Narducci’s Title III claim against Bellwood, all defendants filed

1 As this Court has frequently remarked, precision would

require all such constitutional claims against “state actors” to
be labeled solely in Fourteenth Amendment terms. As a matter of
convenience (and to assist in the exposition of due process
claims that draw their substance from the Bill of Rights), this
opinion will follow the universal practice of citing instead to
the underlying Bill of Rights provision, even though its
incorporation by the Fourteenth Amendment is what Narducci really
invokes.


served by action taken with independence and without fear of

consequences” (Harlow v. Fitzgerald, 457 U.S. 800, 819 (1982)

(internal quotation marks and citation omitted)). Once a
defendant has raised a qualified immunity defense, plaintiff
bears the burden of demonstrating that such immunity is not

applicable (Erwin, 92 F.3d at 525).

In assessing such a defense, a court must generally
undertake a two-step evaluation. First it must determine whether
the facts, taken in the light most favorable to the plaintiff,
demonstrate that defendant's actions amounted to a violation of a
federal right (Saucier v. Katz, 533 U.S. 194, 200-01 (2001)). If
such a violation has taken place, the court must determine
whether that right was “clearly established” (id.). As discussed
below, Narducci has succeeded in demonstrating both the violation
of a federal right and that the right was “clearly established.”

A. Violation of a Federal Right

Narducci asserts that Lemm and Moore violated his rights
under the Fourth Amendment, which “protects people from
unreasonable government intrusions into their legitimate

expectations of privacy” (United States v. Chadwick, 433 U.S. 1,

7 (1977}). In most cases “reasonableness” requires that a search
be conducted pursuant to a judicial warrant issued upon probable

cause (Skinner v. Ry. Labor Executives Ass’n, 489 U.S. 602, 619

(1989)). But when a government employer conducts a search of an

12


Cir. 1988)).

Here, while Moore may not have been involved in initiating
the taping, he admits that he had been told that there was taping
going on even before he took office. Yet after Moore became
Chief of Police, he took no action to stop the taping,® nor did
he even bother to confirm whether it was actually happening.
These facts certainly raise a genuine question as to whether
Moore acted (or failed to act) with deliberate indifference or
“turned a blind eye” to the taping, and summary judgment as to
Narducci’s Section 1983 claim on this ground must therefore be
denied.

2. Qualified Immunity

Next both Lemm and Moore assert that they are entitled to
“qualified immunity” from Narducci’s Section 1983 claims. That
defense offers protection “where an official’s duties
legitimately require action in which clearly established rights

are not implicated,” so that “the public interest may be better

6 What is said here, consistently with the obligation to

treat disputed matters most favorably to nonmovant Narducci,
operates on the premise that Moore was empowered to stop the
taping. On that score all that has been submitted by the parties
is the testimony of Lemm, Frascone and Moore reflecting their
respective opinions--but without any grounding in the kind of
objective evidence (a job description or a course of conduct or
what have you) that would produce a reliable decision (see, e.g.,
Riley v. Blagojevich, 425 F.3d 357, 364-65 (7 Cir. 2005)). As
will be seen later in this opinion, that divergence in the
witnesses’ understandings leads to different treatment of another
of Narducci’s claims.

11


with both the position held by the municipal employee and the

action performed by that employee” (Arteman v. Clinton Cmty. Sch.

Dist. No. 15, 198 Ill1.2d 475, 484, 763 N.E.2d 756, 763 (2002)).
In those respects the employee must “hold[ ] either a position
involving the determination of policy or a position involving the
exercis[e of] discretion,” and the plaintiff’s injury must
“result{ ] from an act performed or omitted by the employee in
determining policy and in exercising discretion” (Harinek v. 161

N. Clark St. Ltd. P’ship, 181 Il1.2d 335, 341, 692 N.E.2d 1177,

1181 (1998) (emphasis in original)).

Discretionary acts are those that “involve the exercise of
personal deliberation and judgment in deciding whether to perform
a particular act, or how and in what manner that act should be

performed” (Wrobel v. City of Chicago, 318 I1ll.App.3d 390, 394-

95, 742 N.E.2d 401, 405-06 (1% Dist. 2000)). In contrast,
“ministerial acts” are “those which a person performs on a given
state of facts in a prescribed manner, in obedience to the
mandate of legal authority, and without reference to the
official’s discretion as to the propriety of the act” (Harinek,
181 Tll.2d at 343, 692 N.E.2d at 1182, quoting Snyder v. Curran
Twp., 167 Ill.2d 466, 474, 657 N.B.2d 988, 993 (1995)).
Discretionary acts must further be “unique to a particular
public office,” so that for example a state trooper’s judgments

as to which route to take and how fast to drive when responding

32


his other clients, once he discovered the intrusion.

In that respect Narducci testified that he was concerned in
particular about the recording of those private confidential
calls with his other clients, and he added that those other
clients were themselves concerned about the breach of
confidentiality. Such evidence could certainly allow a
factfinder to infer that Narducci had suffered a “loss of

reputation and integrity in the community.” This evidentiary
showing--though arguably (as in Schmidt, id.) “a bit thin”--would
be enough to raise a genuine question of fact and would thus
require the denial of summary judgment.

But what has been said as to Moore’s potential liability or
nonliability under the Eavesdropping Act applies with equal force
to Narducci’s common law claim. So here too a suspension of
judgment is called for pending the following analysis as to the
Illinois Immunity Act.

3. Immunity Act

Both Lemm and Moore invoke 745 ILCS 10/2-201 (“Section 2-
201”) to seek statutory immunity from Narducci’s state law
claims:

Except as otherwise provided by Statute, a public

employee serving in a position involving the

determination of policy or the exercise of discretion

is not liable for an injury resulting form his act or

omission in determining policy when acting in the

exercise of such discretion even though abused.

As that language suggests, “section 2-201 immunity is concerned

31


Modrow and Moore, among others, on February 28, 2000 (D. St. Q97-
9). After that meeting Narducci informed two trustees that he
believed the taping was illegal, notified the State’s Attorney
and the FBI and wrote a March 1, 2000 memo to Moore directing him
to stop the recording (N. Add. St. 7910, 13-14). In the meantime
Narducci continued to use those Finance Department phones for
Bellwood business, but he used his cell phone for all
confidential calls (D. St. ${19-20). When Narducci informed his
other municipal clients that some of their phone calls had been
recorded, many of those clients, like Narducci himself, were
concerned about that breach in confidentiality (id. 918; Narducci
Dep. 84-85, 91-92).

After receiving Narducci’s memo, Moore instructed Modrow to
disconnect the Finance Department phone lines from the recording
equipment (D. St. 9286). Moore understood the lines to have been
disconnected sometime in March 2000, and to his knowledge they
were never reconnected (id. §291). According to Modrow, however,
the lines remained connected at least until he left Bellwood in
February 2002 (N. Add. St. 91975, 161). On February 28, 2001
Narducci filed this action.

Unknown Trustees and Employees of Bellwood

Narducci’s Complaint initially alleged wrongdoing not only
by named defendants Moore, Lemm and Bellwood but also by “unknown

trustees and employees” of Bellwood. Narducci’s responsive


immunity may protect an official from Title III liability,
defendants’ belated presentation of that defense does not merit
consideration.

This 5-1/2-year-old action is by a comfortable margin the
oldest actively litigated lawsuit on this Court’s calendar.
Defendants’ Answer to Narducci’s Complaint was filed in August
2001, when they were of course obligated to assert any
affirmative defenses'*--and one such defense advanced at that
time was that of qualified immunity under Title III. Years then
elapsed while the parties were engaged in extended and hotly
contested discovery and class action issues, after which
defendants launched their current Rule 56 motion on September 16,
2005, followed by a series of requests on Narducci’s part for
extensions of his time to respond. Yet no qualified immunity
defense as to Narducci’s Title III claim was advanced in
defendants’ opening presentation seeking summary judgment. Only
after Narducci had filed his Rule 56 response on May 30, 2006
{eight months after defendants’ opening gun) did defendants
attempt to inject qualified immunity into the case as a live
issue via their June 27 reply.

Our Court of Appeals has regularly held (see, e.g., Porco v.

13° In that respect it should be remembered that the purpose
of a qualified immunity defense, as expressed in the seminal
Harlow v. Fitzgerald opinion, is to spare a defendant not only
the burden of going to trial but also the burden of having to
defend the litigation to begin with (457 U.S. at 817-18 & n.29).

22


state offenses.'5 As discussed below, summary judgment on the
state law claims is ultimately granted as to both Lemm and Moore.
1. Eavesdropping Act'®

Just as in the Section 1983 and Title III contexts, Moore’s
contentions as to lack of knowledge of the recording are
misplaced. Certainly he is correct that the Eavesdropping Act
requires an eavesdropper to have acted “knowingly and
intentionally” (720 ILCS 5/14-2). But this opinion has already
referred to evidence that Moore knew about the recording when he
became Chief and that, despite his assertedly having the power to
stop it, he did not do so. Such failure to act in those
circumstances would once again support a reasonable inference
that Moore’s omission was “intentional” and thus within the
Eavesdropping Act’s prohibition.

From that perspective alone, then, Narducci would succeed in
staving off summary judgment on his Eavesdropping Act claim
against Moore. But as n.6 has foreshadowed, such a potential
victory is Pyrrhic indeed, for it would compel Narducci’s loss on
that claim because it is hereafter shown that Moore would then

prevail on immunity grounds. Hence a ruling on the subject just

1 As D. R. Mem. 5 acknowledges, the Immunity Act “has no
bearing on [Narducci’s] federal claims.”

16 Because Lemm has raised no issue under the Eavesdropping
Act, instead relying solely on the Immunity Act {discussed later
for his defense to the state law claims, the next paragraph of
the text deals only with Moore.

28


authority to direct and supervise them, including veto power over
changes they might otherwise institute in operating procedures or
policies (id. 99123-25).

In the Finance Department the Village comptroller serves as
department head, and the department is further overseen by a
Finance Committee, which comprises a chairman and two rotating
members, all drawn from the Board and appointed at the Mayor’s
discretion (D. St. 9931, 88-89, 138; N. Add. St. 9168}. Some
Finance Department policies and procedures can be approved by the
Mayor alone, while others such as “budgetary things” must be
brought before the Board (D. St. 99141-44).

Board meetings are held twice a month (D. St. 989), often
preceded by informal “pre-board meetings” among the Board, the
Mayor, the Village attorney and the Village clerk (id. 99131,
133). Those informal sessions are normally just “preparatory”
meetings used to clarify agenda items, and no votes are taken or
formal approvals given until the formal meeting (id. 9134). In
at least some instances, however, Village policies are set during
the “pre-board meetings” (id. 7109; N. Add. St. 9166-67).

In 1990 Bellwood began to operate a 911 emergency phone
system, overseen by the Bellwood Emergency Telephone System Board
(“Emergency Board”) (Gary Modrow (“Modrow”) Dep. 919148-49). Phone
calls on the lines attached to the emergency system were

recorded, with the recording equipment being kept in the Police


speaking as well), or at least Narducci as department head, that
the calls were being recorded. That analysis would apply with at
least equal force to the recording of outgoing calls. Nor would
there seemingly be a need to have continued the taping long after
employees stopped reporting any threats.

As for the other claimed goal of curbing employee
misfeasance, either in terms of customer service or excessive
personal calls, no justification has been suggested for the
failure to inform employees or their supervisor Narducci of the
taping--instead notification would play a positive role, that of
potential deterrence. And again there would seem to be no reason
to extend the taping well after any complaints of rudeness by
employees had stopped. Finally, that suggested purpose is
negated by the total failure to review the recordings so that any
misbehaving employees could be identified and dealt with.

In sum, sufficient evidence supports the likelihood that the
scope of the search conducted here, though perhaps originally
justified by legitimate government interests, later exceeded the
needs of those interests and so violated Narducci’s Fourth
Amendment rights. This opinion turns then to the second branch
of the qualified immunity analysis.

B. Clearly Established Law

Once a constitutional violation has been identified, the

dispositive question for a qualified immunity defense is whether

15


did in the end find the search to have been “reasonable in
scope,” the court conspicuously noted that the search was
narrowly focused, specifically targeting only those places where
the items being sought would likely be found (id.). As for
Shields, although it did not in the end decide whether the search
there was reasonable,’ the court did take pains to note its
disfavor of, and the likely unreasonableness of, searches that
were mere open-ended “fishing expedition[s]” undertaken long
after an investigation had failed to bear fruit (874 F.2d at
1204-05).

As Gossmeyer, 128 F.3d at 496 observed in its discussion of
qualified immunity, “there is surprisingly little case law”
addressing just what counts as reasonable conduct in work-related
workplace searches.? This case adds to the mix a situation in

which it is plain that no reasonable officer could have believed

’ Shields, 874 F.2d at 1205-06, which also involved the
search of an employee’s desk, actually dismissed the plaintiff’s
Fourth Amendment claims on qualified immunity grounds. But at
that time, unlike the relevant time in this case, O'Connor had
not yet established the requirements for workplace searches.

® Oddly, Gossmeyer, 128 F.3d at 495-97 addressed qualified
immunity despite the court’s having held that there had been no
constitutional violation to begin with. While Gossmeyer found
that qualified immunity would have applied had it been necessary
to resolve that issue, the question there was whether defendants
had been reasonable in assuming that all their search required
was O’Connor “reasonableness” instead of some more rigorous
standard (id. at 496-97). Here the issue is rather whether, in
applying the O’Connor standard, defendants could reasonably have
thought their search was “reasonably related” to the
justifications for that search.

17


What follows is a summary of the facts viewed in the light most
favorable to Narducci, but only so long as those facts are
supported by record evidence.’
Background

Bellwood is an incorporated village in Cook County,
Illinois. Its day to day operations are overseen by a Mayor
acting much “like a CEO” (D. St. 94120), while policy is set by
both a six-member Board of Trustees (“Board”) and the Mayor, who
serves as Board President (id. 197118-19, 120, 122). Beneath the
Mayor and the Board, Bellwood’s governance is divided into
various departments such as the Fire, Police and Finance
Departments, each with its own head (id. 949120, 125, 137). Each

department head reports to the Mayor, who has the ultimate

3 While properly disputed facts must be viewed in his

favor, Narducci has failed to adduce adequate support for his
denials of some of defendants’ LR 56.1 statements. Rather than
providing “specific references to the affidavits, parts of the
record, and other supporting materials” upon which a given denial
relies (as LR 56.1(b) (3) (A) requires), sometimes Narducci either
cites materials that do not actually refute a claim (see, e.g.,
N. St. 9946, 54) or simply fails to cite anything at all (see,
e.g., N. St. 4961-63). Such cases as Ammons v. Aramark Uniform
Servs. Inc., 368 F.3d 809, 817-18 (7'* Cir. 2004) have made clear
that district courts are entitled to strict adherence to LR 56.1
and may penalize violations by disregarding a party’s
noncompliant factual statements or by simply adopting the
opposition’s version. Hence all of defendants’ factual
assertions that Narducci has thus failed to contest properly have
been deemed admitted for present purposes (Smith v. Lamz, 321
F.3d 680, 683 (7? Cir. 2003)). But Narducci has not been
similarly penalized where his denials do not cite directly to the
supporting materials, but refer instead to paragraphs of his own
LR 56.1(b) (3) (B) statement that in turn cite supportive portions
of the record (see, e.g., N. St. 9954, 57, 58).

3


might be said to be related to law enforcement, it would also be
precisely the sort of targeted “investigative” recording that
does not fall under the exception. As Amati, 176 F.3d at 955
points out, if interceptions used for particular criminal
investigations could qualify under the law enforcement exception,
much of Title III’s protections would be eviscerated, a result
that “was surely not Congress’ intent.”
4. Consent Exception

Title III also expressly provides that interceptions by a
person acting under color of law are “not unlawful...where,...one
of the parties to the communication has given prior consent to
such interception” (Section 2511(2)(c)). Such consent need not
be explicit, but may rather be implied from “actual notice” of
the interception (Amati, 176 F.3d at 955). In other words,
someone who makes calls despite knowledge that they are being
intercepted is considered to have consented to the interception

(United States v. Von Poyck, 77 F.3d 285, 292 (9'" Cir. 1996)).

To that end “{a] party may consent to the interception of only
part of a communication or to the interception of only a subset
of its communications” (In_re Pharmatrak, Inc., 329 F.3d 9, 19
(1%* Cir. 2003)).

Here Narducci has testified that he first found out that
Finance Department phone calls were being recorded on

February 28, 2000. While Narducci may well have taken “immediate

26


a Rule 56 motion for summary judgment on the remaining claims.
For the reasons articulated below, that motion is denied in part
and granted in part.
Summary Judgment Standards

Every Rule 56 movant bears the burden of establishing the
absence of any genuine issue of material fact (Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986)).* For that purpose courts
"consider the evidentiary record in the light most favorable to
the nonmoving party...and draw all reasonable inferences in his

favor” (Lesch v. Crown Cork & Seal Co., 282 F.3d 467, 471 (7th

Cir. 2002)). But to avoid summary judgment a nonmovant “must
produce more than a scintilla of evidence to support his
position” that a genuine issue of material fact exists (Pugh v.
City of Attica, 259 F.3d 619, 625 (7th Cir. 2001)) and “must set
forth specific facts that demonstrate an issue of triable fact”
(id.). Ultimately summary judgment is appropriate only if a
reasonable jury could not return a verdict for the nonmovant

(Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).

2 To that end this District Court’s Local Rule (“LR”) 56.1
calls for evidentiary statements by the movant and itemized
responses by the nonmovant--in each case with record
citations--to highlight the existence or nonexistence of factual
disputes. This opinion cites to defendants’ LR 56.1(a) (3)
statement as “D. St. 9--,” to Narducci’s LR 56.1(b) (3) (A)
responsive statement as “N. St. %--” and to Narducci’s LR
56.1(b) (3) (B) statement of additional facts as “N. Add. St. 9--.”
Each side’s initial memorandum (“Mem.”) will use the same “D.”
and “N.” abbreviations, with “D. R. Mem.” denoting defendants’
reply memorandum. All depositions are cited “Dep. I--.”

2


In this case both Mayor Lemm and Chief of Police Moore held
positions that plainly involved both the exercise of discretion
and the determination of policy for Section 2-201 purposes. Lemm
set ultimate Bellwood policy (along with the Board) and exercised
discretion, such as in running Bellwood’s day to day operations
and in appointing trustees to the Finance Committee. Moore had
both the authority to “enact police policies and procedures” and
to exercise discretion in directing the activities of Police
Department employees.

At least in Lemm’s case, the action alleged to have caused
Narducci’s injury--the authorization of the recording of Finance
Department phone calls--was certainly both discretionary and a
policy determination under Section 2-201. In deciding to
authorize the taping, Lemm had to balance the interests that
prompted the recording against the privacy of Finance Department
employees and the cost in resources, time and money that such a
program would require. Furthermore, Lemm’s authorization could
hardly be said to have been given “in obedience to the mandate of
legal authority” (Harinek, 181 Ill.2d at 343, 692 N.E.2d at
4182). And it was Lemm’s job as Bellwood’s CEO to exercise his
judgment in deciding among potential courses of action and to
authorize the one he thought best. In sum, Lemm’s authorization
of the recording was surely both discretionary and policy-

determinative, so that Section 2-201 provides him with immunity

34


discussed must be held in suspension until the analysis in the
Immunity Act section of this opinion is completed.

2. Tortious Intrusion into the Seclusion of Another

According to Lovgren v. Citizens First Nat’1l Bank of

Princeton, 126 I11.2d 411, 417, 534 N.E.2d 987, 989 (1989), an
intrusion upon seclusion involves at its core “the offensive
prying into the private domain of another” (see also Restatement
(Second) of Torts §652B). To sustain such a claim a plaintiff

must establish (Schmidt v. Ameritech Ill., 329 I11.App.3d 1020,

1030-31, 768 N.E.2d 303, 312 (1% Dist. 2002)):
(1) an unauthorized intrusion or prying into the
plaintiff's seclusion; (2) an intrusion that is
offensive or objectionable to a reasonable person;"’
(3) the matter upon which the intrusion occurs is

private; and (4) the intrusion causes anguish and
suffering.

In this instance defendants urge that Narducci has failed to
provide evidence either that the intrusion was sufficientiy
“offensive” or that it caused “anguish and suffering.” But the
evidence adduced by Narducci, together with the required

reasonable inferences in his favor, preclude summary judgment on

this claim.!?

17

[Footnote by this Court] Later on the same page Schmidt
confirms “that the standard of conduct to which this tort applies
is highly offensive” (emphasis in original). This opinion will
of course adhere to that standard.

18 Moore also raises the argument, although briefly, that
his lack of knowledge of the taping also precludes liability,
given that an “intrusion upon seclusion” must be done

29


employee’s “workplace”--defined as “includ[ing] those areas and
items that are related to work and are generally within the
employer’s control” (O’Connor v. Ortega, 480 U.S. 709, 715 (1987)
(plurality opinion)) for “work-related” purposes, such as “to
retrieve government property or to investigate work-related

misconduct” (Gossmeyer v. McDonald, 128 F.3d 481, 490 (7° Cir.

1997)), neither a warrant nor probable cause is required (id.).
Such searches are instead lawful as long as they are
“reasonable[ ] under all the circumstances” (Shields v. Burge,
874 F.2d 1201, 1203 (7°? Cir. 1989), quoting O'Connor). And
reasonableness in that context depends upon (1) whether the
action was “justified at its inception” and (2) whether it was
“reasonably related in scope to the circumstances that prompted
the search” (Gossmeyer, 128 F.3d at 490 (internal quotation marks
and citation omitted)).

There is no doubt that the taping of Finance Department
phone calls qualifies as a “work-related workplace search.”
Certainly the Finance Department phones, no less than a desk or
filing cabinet, are “items related to work and are generally
within the employer’s control” (see Gossmeyer, 128 F.3d at 490).
And as Katz v. United States, 389 U.S. 347, 353 (1967) teaches,
the recording of oral conversations is no less governed by the
Fourth Amendment than rifling through a desk drawer.

By the same token, all of the claimed reasons for such

13


the law was “clearly established” when the official acted, such
that a reasonable official would know that his conduct was
unlawful (Saucier, 533 U.S. at 201-02). To that end a plaintiff
must “point to closely analogous cases” or show that the right is
“so clear...that no one thought it worthwhile to litigate the

issue (Dunn _v. City of Elgin, 347 F.3d 641, 650 (7 Cir. 2003)

in part quoting Brokaw v. Mercer County, 235 F.3d 1000, 1022 (7
Cir. 2000)). That requires a showing of more than a mere “broad
general proposition” (Saucier, 533 U.S. at 201). Instead “the
right the official is alleged to have violated must have been
‘clearly established’ in a more particularized, and hence more
relevant, sense: The contours of the right must be sufficiently
clear that a reasonable official would understand that what he is
doing violates that right” (Anderson v. Creighton, 433 U.S. 635,
640 (1987)).

In those terms Moore’s and Lemm’s invocation of qualified
immunity must be rejected. Two earlier-cited cases from our
Court of Appeals (Shields, 874 F.2d at 1203-04 and Gossmeyer, 128
F.3d at 490-91)--each of them decided well before the events at
issue here--clearly adopted O’Connor’s two-prong “reasonableness”
test for work-related workplace searches, expressly including the
requirement that the measures taken must be “reasonably related”
to the purposes behind the search. While Gossmeyer, 128 F.3d at

491, involving a search of an employee’s desk and filing cabinet,

16