The Washington PostDemocracy Dies in Darkness

Woman jailed two weeks for recording Chicago P.D.’s internal affairs officers can sue for a Fourth Amendment violation

From Moore v. City of Chicago (N.D. Ill. Apr. 28, 2014) — it’s a long excerpt, but it’s hard for a summary to do justice to the allegations (and the uncontested facts). Cases like this make me enthusiastic about Glenn Reynolds’s and John Steakley’s argument for “A Due Process Right to Record the Police”, though I think there’s a First Amendment right to do so, too. Have a look, and you’ll see what I mean (some paragraph breaks added, emphasis added):

Plaintiff Tiawanda Moore has sued the City of Chicago and Chicago Police Officers Jason Wilson, Luis Alejo, and Richard Plotke pursuant to 42 U.S.C. § 1983 for violating her constitutional rights under the First and Fourth Amendments to the U.S. Constitution, as well as under Illinois law for malicious prosecution. The City of Chicago, Alejo, and Plotke have moved for summary judgment. For the reasons provided herein, the Court denies Defendants’ motion.
The following facts are undisputed unless otherwise noted. On July 6, 2010, Officer Wilson and his partner responded to a police call regarding a domestic disturbance at the residence of Moore and her boyfriend. For reasons that are unclear, after arriving at the scene, Officer Wilson entered Moore’s bedroom and found her alone. Officer Wilson touched Moore’s chest and buttocks with both hands. After Moore quickly took Officer Wilson’s hands off of her, Officer Wilson wrote down his phone number on a piece of paper, set the paper on Moore’s bed, and told Moore not to tell anyone that he gave her his number.
Moore called 311 to report her allegations against Officer Wilson. Moore’s call prompted the initiation of a complaint log file, which was then assigned to the Chicago Police Department’s Internal Affairs Division, which investigates complaints of misconduct alleged against Chicago police officers. The complaint log file was assigned to Sergeant Plotke, who then asked Officer Alejo to assist him with the investigation.
On August 18, 2010, Moore met with Sergeant Plotke and Officer Alejo to discuss her complaint. Moore explained the details of what had happened, including how Wilson had touched her body, as well as where and how the incident took place. Plotke and Alejo explained that Moore had two choices. She could sign a sworn affidavit, which would mean that the investigation into Wilson’s conduct would go forward, or sign a letter of declination, which would mean that any investigation would not go forward. She showed them the piece of paper that Wilson had given her on which was written the name “Jay” and Wilson’s phone number. Plotke and Alejo then asked her if she wanted to proceed with the complaint, and she stated that she did.
At this point, Plotke and Alejo told Moore that if she tried to take the case to court, she probably would not win. Plotke also told her that they already had spoken to Wilson and his sergeant, and Alejo stated that they could almost guarantee that what Wilson did to her would never happen again. Plotke told Moore that “if it does happen again, we will already have the first complaint on file, but you can sign off on this piece of paper stating that you no longer want to proceed with the charges. You want to do that?” Alejo added, “We don’t feel like you should proceed with charges due to the fact that we already talked to the sergeant and the officer.”
Moore repeated her desire to proceed with the charges. She asked them whether there was a sergeant or supervisor in the building to whom she could speak. Plotke responded that he was the sergeant and no one else would take her case.
Plotke and Alejo then left the room, and Moore began to fill out the sworn affidavit. Because Moore felt that Plotke and Alejo were attempting to convince her to drop her complaint against Wilson, she activated a recording application on her Blackberry cell phone so that she could record the rest of the interview.
The parties dispute the sequence of the events that followed. According to Defendants, Plotke and Alejo re-entered the interview room, and Alejo observed a microphone symbol with wave bars on the screen of Moore’s Blackberry phone. Alejo believed that a voice recording application had been activated, and he then told Plotke that he needed to speak with Plotke outside of the interview room. After exiting the room, Alejo explained to Plotke what he had observed.
According to Moore, after she engaged the recording function on her phone, the officers reentered the room. At this point, she asked to leave and walked toward the door, but before she could leave the room, Plotke told her, “no, sit down…. [You are] not going anywhere.” Thus, by Moore’s account, Plotke impeded her exit from the interview before he had an opportunity to learn that Moore had been recording the conversation. As we shall see, this dispute is critical.
At one point, Alejo asked Moore whether she was recording the interview. Moore denied that she was. [Footnote: Although Moore disputes that she denied recording the interview, the portion of the record that she cites is unsupportive. Thus, she has not created a dispute regarding her denial.] Alejo told her that it was illegal to record a conversation without the consent of all parties involved. Alejo then apparently left the room, leaving Plotke alone with Moore.
Plotke asked Moore to give him the phone, which she did. According to Moore, she then told Plotke that she did not know that recording the interview was illegal, and Plotke responded that, even if she was ignorant of the law, she could still go to jail. Moore again stated she did not know that recording the interview was illegal, and when she asked Plotke, “Am I going to jail?” he replied, “Yes, you are going to jail.” Plotke left Moore alone in the interview room, taking the phone with him.
A woman then entered the room and sat with Moore. Moore told her that she wanted somebody else to investigate her complaint against Wilson because she felt that Plotke and Alejo were trying to talk her out of pursuing her complaint. The woman asked Moore for the password to her Blackberry phone, and Moore gave the woman her password so that the woman could access her phone.
Plotke and Alejo later returned to the room and officially placed Moore under arrest for two counts of felony eavesdropping, and her Miranda rights were explained to her. A search warrant was executed that day at 8:15 p.m., and a recording of Moore, Plotke, and Alejo’s conversation was subsequently recovered from the phone.
After Moore’s arrest, Plotke made a formal request to reassign the investigation of Moore’s complaint regarding Officer Wilson to other officers. The investigation was reassigned to new investigators and went forward.
As for Moore, she asserts that she spent two weeks in Cook County Jail. On August 23, 2011, a jury found Moore not guilty of the two counts of felony eavesdropping.
Federal Rule of Civil Procedure 56(a) provides that summary judgment is appropriate for cases in which “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” …
Police officers have “probable cause to arrest an individual when the facts and circumstances within their knowledge and of which they [have] reasonably trustworthy information are sufficient to warrant a prudent [person] in believing that the [suspect] had committed or was committing an offense.” “In deciding this question of law as part of a motion for summary judgment, however, we must give the non-moving party the benefit of conflicts in the evidence about what the officers actually knew at the time.”
Apropos to this motion, “probable cause is lacking if an officer has knowledge of matters tending to establish that the arrestee is entitled … [to] a statutory exemption….” See Estate of Dietrich v. Burrows, 167 F.3d 1007, 1012 (6th Cir. 1999) (holding that officers lacked probable cause at the time of arrests because they had full knowledge of facts and circumstances that established that plaintiffs were justified in carrying concealed weapons during their work); see also Hodgkins ex rel. Hodgkins v. Peterson, 355 F.3d 1048, 1061 (7th Cir. 2004) (“A police officer may not ignore conclusively established evidence of the existence of an affirmative defense, but the officer has no duty to investigate the validity of any defense.”)….
In Illinois, a person commits eavesdropping when she: “[k]nowingly and intentionally uses an eavesdropping device for the purpose of hearing or recording all or any part of any conversation or intercepts, retains, or transcribes electronic communication unless [s]he does so … with the consent of all of the parties to such conversation or electronic communication.” [Footnote: After Moore’s prosecution, the eavesdropping statute was declared unconstitutional [by the Illinois Supreme Court]. “Police are charged to enforce laws until and unless they are declared unconstitutional.”]
However, exempt from criminal liability is the “[r]ecording of a conversation made by … a person, who is a party to the conversation, under reasonable suspicion that another party to the conversation is committing … a criminal offense …, and there is reason to believe that evidence of the criminal offense may be obtained by the recording.” … According to Moore, her actions fell within this exemption because she had reason to believe that Plotke and Alejo were committing or attempting to commit official misconduct, obstruction of justice, and criminal unlawful restraint in violation of Illinois law.
A public officer commits the criminal offense of official misconduct when he “knowingly performs an act which he knows he is forbidden by law to perform.” A person commits the criminal offense of obstructing justice “when, with intent to prevent the apprehension or obstruct the prosecution or defense of any person, he … knowingly … induces a witness having knowledge material to the subject at issue to … conceal … herself.” Finally, a person commits the criminal offense of “unlawful restraint when he or she knowingly without legal authority detains another.”
Plotke and Alejo assert that because Alejo observed a microphone symbol with wave bars on Moore’s Blackberry phone, they had both arguable probable cause and probable cause to seize and arrest Moore…. [But w]hen the Court views the facts in their totality and construes all disputed facts in Moore’s favor (as it must at this stage), it concludes that summary judgment is not appropriate….
[A] reasonable jury could find that the officers knew that Moore’s actions were exempt from the Illinois eavesdropping statute. When Plotke and Alejo seized and/or arrested Moore, they knew that she had filed a complaint with the Chicago Police Department due to Wilson’s actions and had reason to believe that Moore’s account was truthful. Indeed, Moore had even showed them the note that Wilson had left with her.
Plotke stated to Moore that they had spoken to Wilson and his sergeant about the incident. Alejo told Moore that they could almost guarantee that such behavior would never happen again. And, again according to Moore, Alejo told her, “We don’t feel like you should proceed with charges due to the fact that we already talked to the sergeant and the officer.” Additionally, both officer[s] informed her that “if this goes to court or if you go to court, you won’t win your case.”
What is more, Alejo told her that if she pursued her case, officers might have to go to her workplace to ask her questions during the investigation. Finally, Moore repeatedly requested that new investigators be assigned to the case, but Plotke told her that there was no one else available.
Given these facts, a reasonable jury could find that Plotke and Alejo: (1) knew of Moore’s allegations against Wilson, (2) knew that Wilson’s conduct was criminal in nature, (3) knew that Wilson had already admitted that the incident had occurred, and (4) knew that there was a piece of paper with Wilson’s name and phone number on it that supported Moore’s complaint of misconduct. A reasonable jury could also find that, despite this knowledge, the officers took a substantial step toward thwarting a criminal investigation into Moore’s conduct [I assume from context the court actually means “into Wilson’s conduct" -EV] by telling Moore that (1) she should not proceed with the charges, (2) if she went to court, she would not win her case, and (3) officers might visit her at workplace to question her if she pursued any charges against Wilson.
Based on these facts and circumstances, a reasonable jury also could find that at the time of her seizure and/or arrest, the officers knew that Moore was recording their conversation because she suspected that they were attempting improperly to convince her to drop her complaint against Wilson and sign the letter of declination. In other words, a rational jury could conclude that reasonable officers in Plotke and Alejo’s position would have known that Moore’s recording did not violate the Illinois eavesdropping statute because she had grounds to believe that they [the police officers] were attempting to obstruct justice and commit similar offenses.
Accordingly, for the reasons stated, genuine issues of material facts exist as to whether Plotke and Alejo had probable cause or arguable probable cause to seize and arrest Moore for eavesdropping. Therefore, Defendants’ motion for summary judgment as to Moore’s Fourth Amendment claim and state law malicious prosecution claim is denied….

The court also concluded that the First Amendment analysis, for retaliatory arrest, rises or falls on the same questions as the Fourth Amendment analysis.