No Emotional Distress for Records Disclosure of HIV

April 5, 2012 in Uncategorized by Gina | No comments

In a 5-3 decision, the U.S. Supreme Court ruled that the Privacy Act of 1974 does not authorize suits for mental or emotional distress when the government violates the Act.

In FAA v. Cooper, Cooper lost his pilot license after the FAA was told by the Social Security Administration that he had received disability benefits because of an illness.  The records were disclosed to the FAA as part of an “Operation Safe Pilot” probe targeting medically unfit pilots.  At the time Cooper was receiving benefits, the FAA did not give licenses to anyone taking medication for the AIDS virus.

Cooper’s suit did not allege economic harm in his complaint.  He did however sue for “humiliation, embarrassment, mental anguish, fear of social ostracism, and other severe emotional distress.”

Writing for the majority, Justice Alito stated that the Privacy Act of 1974 provides for “actual damages” if the United States intentionally or willfully violates the law.  However, the term “actual damages” varies based on the statute being interpreted, and under the Privacy Act damages can only be recovered for pecuniary loss.

In a vigorous dissent, Justice Sotomayor wrote that the majority opinion “cripples the Act’s core purpose of redressing and deterring violations of privacy interests.”  She criticized the majority’s interpretation of actual damages, as the majority conceded that its interpretation was not compelled by the plain text of the Act nor required “by any other traditional tool of statutory interpretation.”

You can read the full opinion here.

Gina M. Spada is an attorney practicing in Chicago and the surrounding counties handling privacy related matters for both individuals and businesses.  You can learn more about her here: www.gspadalaw.com.

Illinois House Rejects Amendment to Eavesdropping Law

March 22, 2012 in Eavesdropping, First Amendment, Illinois, Legislation by Adele Nicholas | 1 comment

The Illinois House of Representatives voted down a bill on March 21 that would have amended the state’s eavesdropping law to permit citizens to make audio recordings of police officers doing their jobs in public places. Illinois’ strange eavesdropping law, which I’ve written about in the past, has been used by police in several high-profile incidents to charge civilians with felonies when they tried to record police misconduct.

Rep. Elaine Nekritz introduced a bill to amend the statute. Her bill, H.B. 3944, would have brought Illinois in line with other states, which, by and large, permit audio and video recording with the consent of one party to the conversation. Moreover, the bill reflected the reality that police officers really shouldn’t have an expectation of privacy when they perform public duties in public places. But, disappointingly, opponents of the bill shot it down in a 59-45 vote.

Meanwhile, on March 2, Cook County Judge Stanley Sacks found the eavesdropping law unconstitutional in the case of the artist Christopher Drew who was charged with a felony under the law for having a friend videotape his arrest. Judge Sacks noted: “The Illinois Eavesdropping Statute potentially punishes as a felony a wide array of wholly innocent conduct. A parent making an audio recording of their child’s soccer game, but in doing so happens to record nearby conversations, would be in violation of the Eavesdropping Statute.”

Seven Officers Fired for Misconduct

January 25, 2012 in City of Chicago, Internal Investigations by Adele Nicholas | No comments

The Chicago Sun-Times reported Monday that the Chicago Police Board terminated seven officers over the past four months for a variety of infractions, some of which are pretty out there. Here are some highlights:

> William Whelehan was fired for throwing a bag of dog feces on his neighbor’s porch and pointing a gun at the neighbor after a 2009 argument about whether Whelehan’s dog had urinated on the neighbor’s lawn. Whelehan is also a defendant in the case Geinosky v. City of Chicago, in which he and other officers in Unit 253 of the CPD issued two dozen false parking tickets to Mark Geinosky. Whelehan had been recommended for termination in connection with the Geinosky investigation, but the feces/aggravated assault case came up first.

> Two officers were fired for carrying their guns around while drunk. Dale Prince shot a gun in his backyard while he was drunk and off-duty in 2007. When other (on duty) officers came to investigate the gunfire, they found seven unregistered guns in Prince’s home. Prince said he was investigating a possible intruder. Brian Gentzle was carrying his duty weapon around while drunk in 2008 when police stopped him and another armed man in an apartment building near Fullerton and Clybourn.

> Kevin Carey was driving drunk when he pointed a gun at a civilian in another vehicle. When on-duty officers arrived, they ordered Carey to drop his gun, which he refused to do. Carey, whose BAC was determined to be more than twice the legal limit, called the man he was chasing a racial epithet. He was charged with DUI and aggravated assault, and ultimately pled guilty to the DUI only.

> The weirdest one is Matthew Riley. He was present during an illegal raid of a home with officers from the disgraced Special Operations Section in 2004. Without a warrant, officers broke down a door and searched a Northwest side home and stole $13,000 from the residents. Ultimately, though, Riley wasn’t fired for his role in the illegal search but rather for allegedly lying to investigators about the presence of a supervisor on the scene.

City Pays $3.9 Million in Lockup Death Cases

December 15, 2011 in City of Chicago, Denial of Medical Attention, Settlement by Adele Nicholas | No comments

The City agreed Monday to pay nearly $3.9 million to the families of people who died in Chicago police custody after police officers or lockup personnel ignored obvious signs of medical distress.

City council approved a settlement of more than $2 million in the case Cobige v. City of Chicago, 06 C 3807. Patricia Cobige died in the CPD’s 25th District lockup on June 12, 2006, two days after her arrest on drug charges. Her cell mate testified that Cobige was repeatedly asking for help and complained of severe abdominal pain, but was ignored by lockup personnel. Testimony at trial showed that the officers refused to take Cobige to bond court because she was so ill. According to court documents, medical evidence at trial established that Cobige had uterine tumors that would have caused pain. A doctor testified that her severe pain elevated epinephrine levels in her system, aggravating her pre-existing heart condition, and ultimately causing her death.

A Northern District jury awarded Ms. Cobige’s adult son Maurice $5 million after a jury trial before Judge Amy St. Eve. The city appealed to the Seventh Circuit, which upheld the verdict on liability, but remanded for a new trial on damages, finding that certain evidence of Ms. Cobige’s criminal history should have been admitted as relevant to damages. The Seventh Circuit opinion is available here. Rather than roll the dice again, the City settled.

City Council also approved a $1 million settlement in McMullan v. City. In that case, a 52-year-old man died in CPD’s central detention. He was found dead in full rigor mortis, hours after he passed away. According to news reports, other people in the lock up were prepared to testify that he had been screaming in pain for a long time, but received no medical attention.

Tribune coverage here.

$1.38 Million Verdict for Elderly Victim of CPD Abuse

October 21, 2011 in City of Chicago, Excessive Force, False Arrest, Intentional Infliction of Emotional Distress, Malicious Prosecution, State Court, Verdict by Adele Nicholas | 4 comments

A Cook County jury returned a verdict of $1.38 million on October 14 for a 67-year-old woman who suffered a heart attack and stroke after being shoved to the ground by 25th District Chicago police officer Jorge Cerda.

According to Plaintiff’s attorneys Jeff Neslund and Michael Robbins, Officer Cerda was trying to arrest the plaintiff’s daughter on the porch of her home when he shoved the plaintiff to the ground in the doorway. Plaintiff’s head hit the marble floor, causing subdural bleeding. When the plaintiff went to the police station to complain about the rough treatment, Cerda arrested her, charged her with aggravated assault and threatened to have her deported.

Plaintiff had a heart attack while in the police lock up and was hospitalized for two days. Only an hour after she was discharged, she was readmitted to the hospital, suffering an ischemic stroke, which left her permanently paralyzed on her left side.

The plaintiff asserted claims for battery, false arrest, malicious prosecution and intentional infliction of emotional distress.

The City of Chicago employed its foolish “no settlement” policy and offered the Plaintiff nothing to resolve the case prior to trial.

Are Routine Strip Searches Constitutional?

October 12, 2011 in Cook County, Cook County Jail, Fourth Amendment, Illegal Search, Supreme Court by Adele Nicholas | No comments

Albert Florence thought he was going out to dinner with his wife and kids to celebrate the purchase of their new home one evening in 2005 when he was pulled over by New Jersey police officers and arrested on a warrant for an unpaid traffic ticket. Florence had paid the fine two years before, but the warrant had never been removed from the courts’ computer systems. Instead of a celebratory dinner, Florence found himself in a humiliating six day ordeal in which he was held in county jails in Essex and Burlington counties in New Jersey while the courts sorted out the faulty record-keeping that led to his mistaken arrest. Adding to his horrible experience, Florence was strip searched at both jails. The Supreme Court of the United States heard oral argument today in the case Florence v. Burlington County, 10-945, in which Florence argues that the strip searches were unconstitutional.

In 1979, the high court held in Bell v. Wolfish that it was constitutional for jails to strip search every inmate after contact with a visitor. Attorneys for Florence argue that the issues are different when it comes to someone like Florence, who was arrested on sight by police for a minor ticketable offense and there is little risk that he’d be trying to smuggle contraband into the jail. They argue that it was unreasonable to strip search Florence in the absence of any reasonable suspicion that he was carrying concealed drugs or weapons.

The lower courts are divided on this question with the 9th and 11th Circuits siding with jails’ unconditional right to strip search all arrestees without regard to the presence of reasonable suspicion, and seven other circuit courts favoring a requirement that strip searches be supported by a reasonable basis to believe the arrestee is smuggling contraband. In Florence’s case, the 3rd Circuit sided with the jails.

Supreme Court rockstar Carter Phillips represents the jails. Susan Chana Lask represents Florence.

Strip search litigation has received a lot of attention here in Chicago in the past few years. In 2010, Cook County reached a $55.3 million settlement with detainees who were unnecessarily strip searched. In January 2011, the County agreed to pay another $4.2 million to compensate people who were strip searched after a judge had already dismissed their cases and found that they should be released.

New Case: Montejano v. Chicago, 11 C 6838

October 2, 2011 in City of Chicago, Excessive Force, New Case by Adele Nicholas | No comments

According to a new case recently filed in the Northern District of Illinois, on September 29, 2010, Chicago police officers arrested George Montejano. While in a police lockup, Montejano became ill due to his diabetes and needed to be transported to the hospital. Defendant-Officers Benjamin Sanchez and Scott Pietryla allegedly put a handcuffed Montejano in the back seat of a squad car without a seat belt and then deliberately drove wildly so that Montejano would be injured while in the back seat. The complaint asserts claims under Section 1983 for excessive force and failure to intervene, along with state law claims for battery, negligence and willful and wanton conduct.

The case is George Montejano vs City of Chicago, 11 C 6838. Plaintiff Montejano is represented by Mark Parts and Faith Spencer. The complaint is available here.

Do Police Need A Warrant to Track Your Movement Via GPS?

October 2, 2011 in Fourth Amendment, Illegal Search, Supreme Court by Adele Nicholas | No comments

The U.S. Supreme Court has several important civil rights cases on its docket for the fall term which started this week. Among the most interesting cases is United States v. Jones, No. 10-1259, in which the court will decide whether police need a warrant to attach a GPS device to a suspect’s car.

In September 2005, FBI agents planted a GPS tracking device on Antoine Jones’ car while his vehicle was parked in a public lot in Maryland. Jones was suspected of involvement in drug trafficking. The GPS device tracked Jones’ movements for an entire month, transmitting his whereabouts to law enforcement every 10 seconds. After the device tracked Jones repeatedly frequenting a stash house where a lot of narcotics were stored, Jones was arrested and charged in a drug conspiracy.

The FBI had obtained a warrant to put the device on Jones’ car within ten days within the District of Columbia. But ultimately, they didn’t install the device until the 11th day, and did so in Maryland, not Washington, D.C. So essentially, the government is now arguing that it has the right to track people via GPS without a warrant at all.

In the trial court, Jones’ motion to quash was denied (except to the extent the device captured data while Jones’ car was parked in his private garage). Jones was convicted. On appeal, the U.S. Court of Appeals for the District of Columbia found that monitoring Jones’ car 24 hours a day was an unreasonable search that violated the Fourth Amendment. The Supreme Court granted cert and will hear oral argument on November 8, 2011.

Solicitor General Donald Verrilli (whom I met and interviewed way back when he was a Jenner & Block partner) will argue for the government. Skadden partner Michael Scudder will appear for Jones.

“Eavesdropping” Update

September 28, 2011 in ACLU, Eavesdropping, First Circuit, Internal Investigations, Seventh Circuit by Adele Nicholas | 1 comment

Illinois has a quirky “eavesdropping” statute, 720 ILCS 5/14-1, which makes it criminal to make an audio recording without all recorded parties’ consent. Most states require the consent of only one participant. The statute has been used by Chicago police in several instances to prosecute citizens who’ve used cell phones to record police misconduct. There have been several recent developments that call into question this outdated statute.

In one recent case, a Cook County jury found 20-year-old Tiawanda Moore not guilty of violating the statute. She was charged with two felonies for secretly recording her interview with two police officers from the Chicago Police Department’s internal affairs division. She caught the officers on tape trying to talk her into dropping her sexual harassment claim against an officer who responded to a domestic disturbance at her house. The officer allegedly groped Moore and gave her his phone number. When the internal affairs officers tried to pressure her into dropping the complaint, Moore took out her Blackberry and started recording. Moore faced a possible jail term of 15 years. On August 24, 2011, the jury returned a “not guilty” verdict in less than an hour.

Meanwhile, the American Civil Liberties Union is challenging the eavesdropping statute in federal court in the case ACLU v. Alvarez, 11-1286. The lawsuit argues that the statute is unconstitutional because it makes it a felony for ACLU employees to record police activities at demonstrations, protests and other public events in which citizens are exercising their First Amendment rights. The Seventh Circuit heard oral argument in the case on September 13. Judges Posner, Sykes and Hamilton were on the panel that heard the case. Judge Posner was vocally hostile to the ACLU challenge, peppering attorney Richard O’Brien (a Sidley Austin partner who appeared on behalf of the ACLU) with hypothetical scenarios in which the eavesdropping statute would protect innocent citizens from dissemination of private conversations. O’Brien argued that it is unconstitutional for a statute to criminalize the activity of a citizen who records a public employee performing public duties in a public place. He also points out that citizens are not prohibited from photographing or video-recording police officers; the outdated eavesdropping law reaches audio recordings only. Judges Sykes and Hamilton seemed more sympathetic to the ACLU’s challenge.

Audio of the oral argument in the case (recorded with the knowledge and implied consent of all involved!) is available here.

The First U.S. Circuit Court of Appeals (which encompasses Boston) ruled August 26 in Glick v. City of Boston, 10-1764, that Boston police violated the constitutional rights of Simon Glick when they arrested him for using his cell phone to film police officers making an arrest on the Boston Common. Glik was charged with violation of Massachusetts’s wiretap statute. The Court wrote:

We conclude, based on the facts alleged, that Glik was exercising clearly-established First Amendment rights in filming the officers in a public space, and that his clearly-established Fourth Amendment rights were violated by his arrest without probable cause.

The full text of the decision is available here. Hopefully, Illinois courts move in the same logical direction.

Judge Zagel: Civilian Complaint Records Should Not Be Private

August 25, 2011 in City of Chicago, FOIA, Independent Police Review Authority, Internal Investigations, Office of Professional Standards, Public Access to Records by Adele Nicholas | No comments

As I’ve recently discussed, there has been a great deal of litigation about whether internal investigation files reflecting complaints of police misconduct should be accessible to the public.

Yesterday, Judge James Zagel issued a very helpful decision in the case Henry et al. v. Centeno, 10 C 6364. The City of Chicago challenged Magistrate Judge Maria Valdez’s decision that complaint registers (police department records reflecting civilian complaints of police misconduct, usually called “CRs”) should not be subject to a protective order prohibiting the parties from distributing and discussing the records. Judge Zagel upheld Judge Valdez’s decision, writing:

Privacy interests will often be sufficient to establish good cause for a protective order. Where the information at issue relates solely to the public duties of a public employee, however, the claim to that privacy interest is far more tenuous.

Judge Zagel rejected the City’s argument that records of “unsustained” or “unfounded” complaints (those that the department terminated in the officer’s favor) should be kept private because they were nothing more than allegations of misconduct. Judge Zagel approvingly cited the Illinois Appellate Court decision in Gekas v. Williamson, 912 N.E.2d 347 (Ill. App. Ct. 2009), in which the court explained:

…[C]itizens might want to see whether the Division is performing a fair and objective investigation of complaints. They might want to see whether complaints that the Division determined to be unfounded are really unfounded. Obviously, citizens cannot perform this critique … if so-called “unfounded” complaints are exempt from disclosure for the tautological reason that the public body decided they were unfounded.

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