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.
