Nicholas Narducci v. Gregory Moore ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 06-3427
N ICHOLAS N ARDUCCI,
Plaintiff-Appellee,
v.
G REGORY M OORE and D ONALD L EMM,
Defendants-Appellants.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 01 C 1425—Milton I. Shadur, Judge.
A RGUED M AY 7, 2009—D ECIDED JULY 9, 2009
Before
FLAUM and W ILLIAMS, Circuit Judges, and
LAWRENCE, District Judge.Œ
F LAUM, Circuit Judge. Nicholas Narducci, at one time
the comptroller for the Village of Bellwood, is suing
Œ
The Honorable William T. Lawrence, United States District
Court Judge for the Southern District of Indiana, sitting by
designation.
2 No. 06-3427
the Village, the former mayor, and the police chief for
violating his Fourth Amendment rights and the Fourth
Amendment rights of other plaintiffs in this class action
suit by surreptitiously recording phone calls from the
village’s finance department. He is suing under 42
U.S.C. § 1983 and Title III, a federal statute prohibiting
government officials from intercepting wire or electronic
communications. The defendants moved for summary
judgment in the district court, which was granted in
part and denied in part. They now appeal the denial of
summary judgment, arguing that they are entitled to
qualified immunity on both the § 1983 and Title III claims.
For the following reasons, we affirm the district court.
I. Background
In 1993, Joe Lagen, the comptroller of the Village of
Bellwood, began to worry about irate residents
threatening employees of the village’s finance depart-
ment over the phone (usually because the residents had
failed to pay their utility bills and had seen the city shut
off their water service). And that was not Lagen’s only
worry. He was also concerned about finance depart-
ment employees making personal calls on the village’s
time and over the village’s phone lines. Lagen proposed
to the village’s board of trustees at a “pre-board” meeting
that the village record calls to and from the finance de-
partment on the same system used to record calls to the
police and fire departments.
“Pre-board” meetings, which were usually attended by
Bellwood’s mayor (Donald Lemm), the board of trustees,
No. 06-3427 3
the village attorney and the village clerk, were a
common means by which the board of trustees clarified
its agenda in advance of the twice-monthly board
meetings and heard proposals; it was unusual, but not
unheard of, for the board to adopt policy at a “pre-board”
meeting. The board of trustees apparently agreed to
Lagen’s proposal at the meeting, and authorized him to
begin recording the finance department telephone lines.
Lemm supported the idea as well, having recently heard
some complaints about finance department employees
being rude to residents calling the village.
The board requested that the Bellwood Emergency
Telephone System Board, the board overseeing the
village’s 911 operations, connect the finance department
phone lines to the recording system for emergency calls.
Bellwood established an emergency telephone system in
1990 and the police department recorded calls to the
system. Lagen sent Gary Modrow, a sergeant in the
local police force and the chair of the Emergency Tele-
phone System Board, a memo on January 4, 1994, instruct-
ing him to add five phone lines from the finance depart-
ment to the emergency recording system. Modrow asked
a technician from Dictaphone, the manufacturer of the
village’s recording system, to connect those phone lines.
The process was completed about thirty days later.
Narducci contends that the village did not post notices
on or near the phones alerting finance department em-
4 No. 06-3427
ployees that the village was recording their phone calls.1
The village claims, however, that users of the phone
system heard an audible beep when they began using
one of the recorded lines. Narducci, citing deposition
testimony from Modrow, counters that the beep tone was
eliminated and that he, at least, never heard it when using
the affected phone lines. It appears that Lagen never
listened to any of the calls to check up on threats to depart-
ment employees or misuse of the village’s phone system,
and Lemm never followed-up with the finance depart-
ment regarding threats from customers or instances of
rude behavior from employees.
In March 1996, Gregory Moore replaced Robert Frascone
as the chief of the village’s police department. Moore
learned before taking office that the village was recording
phone lines in the finance department, but did not investi-
gate the circumstances of the recording and took no
steps to disconnect the Dictaphone from the phone lines
until Narducci, Lagen’s successor as comptroller, asked
him to. Moore argued in the district court that he had
no authority to disconnect the phone lines, although
Frascone and Lemm claimed in deposition testimony
that he did.
1
For his part, Lagen claimed in deposition testimony that he
gave a memo to the affected employees letting them know that
the village had begun recording the phone lines in the depart-
ment and that he discussed this with them in face-to-face
meetings. Because the case is before us on appeal from a
motion for summary judgment, we take the facts in the light
most favorable to Narducci.
No. 06-3427 5
Narducci took over as Bellwood’s comptroller in 1997
or 1998, replacing Lagen. He says that when he took over
he had no idea that Bellwood was recording the phone
lines in his department. Bellwood is a small unincorpo-
rated community just west of Chicago, and does not
employ a full-time comptroller; Narducci was simulta-
neously working for other nearby communities and
usually spent only a few days a week in Bellwood. When
he was in Bellwood, he frequently used the phone lines
in the finance department both for Bellwood-related
calls and also to make calls related to confidential matters
for other cities. Narducci claims that he would usually
work at whatever desk in the finance department was
open, but that for confidential matters he sought a less-
crowded place to make his calls.
Narducci learned that Bellwood was recording the
phone lines in the finance department in a meeting on
February 28, 2000. Narducci notified two trustees of the
village that he thought the taping was illegal, alerted the
FBI and the state’s attorney, and wrote a memo to Moore
directing him to stop the recording. After sending that
memo, Narducci continued to make phone calls on the
finance department phone lines but used his cell phone
for all confidential calls.
Moore instructed Modrow to disconnect the finance
department phone lines from the Dictaphone recorder.
Moore believed that the phone lines were disconnected
in March 2000. Modrow, on the other hand, said that
he believed the phones were still connected when he
left Bellwood in February 2002.
6 No. 06-3427
In February 2001, Narducci filed a lawsuit against the
Village of Bellwood, Moore, Lemm, and various unknown
trustees and employees of the village. He later dismissed
the claims against the unnamed trustees and employees,
but proceeded with the case against the three named
defendants, and later had his suit certified as a class
action on behalf of other employees of the finance depart-
ment whose phone calls were recorded. The suit brought
claims under 42 U.S.C. § 1983 and Title III of the Omnibus
Crime Control and Safe Streets Act of 1968 for, respec-
tively, violating his Fourth Amendment right not to be
subjected to illegal searches and for illegal wiretapping.
He also brought Illinois state law claims under the Eaves-
dropping Act and a tort action for intruding on a place
of seclusion. Lemm and Moore moved for summary
judgment on all claims, and specifically on the ground of
qualified immunity (although as we will see, there’s a
complicated back story to their qualified immunity
claim on the Title III count). The district court granted
summary judgment on the state law claims and on any
Title III claims involving phone calls made after
Narducci learned about the recording in February 2000.
The district court denied summary judgment on the § 1983
claims and the remaining Title III claims, finding that
there were disputed issues of fact and that the defendants
were not entitled to qualified immunity. Lemm and
Moore now appeal the district court’s denial of their
qualified immunity claims.
No. 06-3427 7
II. Discussion
We review a district court’s summary judgment
decision de novo. Chaklos v. Stevens, 560 F.3d 705, 710 (7th
Cir. 2009). Summary judgment is proper where “there is
no genuine issue of material fact and the moving party
is entitled to a judgment as a matter of law.” Fed. R. Civ.
P. 56(c).
The defendants are appealing from the district court’s
denial of qualified immunity. The doctrine of qualified
immunity protects government officials from lawsuits
for damages when their conduct did not violate
“clearly established statutory or constitutional rights of
which a reasonable person would have known.” Harlow
v. Fitzgerald, 457 U.S. 800, 818 (1982). The purpose of
qualified immunity is to provide reasonable notice to
government officials that certain conduct violates con-
stitutional rights before a plaintiff can subject them
to liability. Hope v. Pelzer, 536 U.S. 730, 739 (2002). Reason-
able notice does not require that there be a case “funda-
mentally similar” to the present case, and indeed an
officer can be on notice that his conduct violates con-
stitutional rights even in novel factual circumstances. Id.
at 741 (“Although earlier cases involving ‘fundamentally
similar’ facts can provide especially strong support for
a conclusion that the law is clearly established, they
are not necessary to such a finding. The same is true of
cases with ‘materially similar’ facts.”). For a right to be
clearly established, “its contours ‘must be sufficiently
clear that a reasonable official would understand that
what he is doing violates that right . . . in the light of
8 No. 06-3427
pre-existing law the unlawfulness must be apparent.’ ” Id.
at 739 (quoting Anderson v. Creighton, 483 U.S. 635, 640
(1987)).
When examining a qualified immunity claim, a court
examines whether a constitutional right has been
violated; and then, if a constitutional right was violated,
whether the right in question was sufficiently well estab-
lished that a reasonable officer would have been aware
of it. Saucier v. Katz, 533 U.S. 194, 200 (2001). We no
longer need to address the two portions of the qualified
immunity analysis in any specific order, and can frame
our discussion in the way that produces the clearest
decision. See Pearson v. Callahan, 129 S. Ct. 808, 821 (2009).
Here, because defendants argue that Narducci’s
Fourth Amendment rights were not violated and that
the violation of this right was not “clearly established,”
we will consider both issues in turn.
A. Fourth Amendment violation
Lemm and Moore first argue that Narducci’s § 1983
suit fails because he did not establish a violation of his
Fourth Amendment rights. 42 U.S.C. § 1983 is not an
independent source of tort liability; instead, it creates a
cause of action for “the deprivation, under color of [state]
law, of a citizen’s rights, privileges, or immunities
secured by the Constitution and laws of the United States.”
Ledford v. Sullivan, 105 F.3d 354, 356 (7th Cir. 1997). The
statute is thus a means of vindicating rights secured
elsewhere. Id.No. 06-3427 9
The underlying claim in this case is a Fourth Amend-
ment claim. “The touchstone of Fourth Amendment
inquiry is reasonableness, a standard measured in light
of the totality of the circumstances and determined by
balancing the degree to which a challenged action
intrudes on an individual’s privacy and the degree to
which the action promotes a legitimate government
interest.” Green v. Butler, 420 F.3d 689, 694 (7th Cir. 2005).
The Supreme Court has held that the Fourth Amend-
ment applies to “searches and seizures by government
employers or supervisors of the private property of their
employees.” O’Connor v. Ortega, 480 U.S. 709, 715 (1987).
With respect to the scope of Fourth Amendment rights in
the workplace, however, the Court added that “[t]he
operational realities of the workplace . . . may make some
employees’ expectations of privacy unreasonable.” Id. at
717. Practices and procedures of a particular office or
legitimate regulations may reduce the expectation of
privacy that government employees enjoy in their work-
place. Id. The circumstances of a particular case matter a
great deal, and each Fourth Amendment claim in this
context has to be examined on its own. “Given the great
variety of work environments in the public sector, the
question whether an employee has a reasonable expecta-
tion of privacy must be addressed on a case-by-case basis.”
Id. at 718.
Once an employee demonstrates a reasonable expecta-
tion of privacy, he must then demonstrate that the
search was unreasonable. “[P]ublic employer intrusions
on the constitutionally protected privacy interests of
10 No. 06-3427
government employees for non-investigatory, work-
related purposes, as well as for investigations of work-
related misconduct, should be judged by the standard
of reasonableness under all the circumstances.” Id. at 725-
26. This standard has two requirements: First, the
search must have been “justified at its inception,” and
second, it must have been “reasonably related in scope
to the circumstances which justified the interference in
the first place.” Id. at 726.
We first consider whether Narducci had a reasonable
expectation of privacy in his phone line. Lemm and
Moore argue that he did not, for two reasons. First, they
argue that Narducci did not have a reasonable expecta-
tion of privacy in a phone line in the finance department;
second, they contend that there was never a “search”
within the meaning of the Fourth Amendment because
nobody ever listened to the calls.
The district court, citing Katz v. United States, 389 U.S.
347, 353 (1967), another case involving surreptitious
recording of phone calls, found that Narducci enjoyed a
reasonable expectation of privacy in his phone line.
Lemm and Moore argue that the issue is more precise,
and that in this case the search was only unreasonable
if Narducci had a reasonable expectation of privacy
when talking on a phone line at work. According to the
defendants, Narducci could not have had a reasonable
expectation of privacy when talking on a phone line in
a crowded workplace, since anyone working nearby
could easily overhear his conversations. Additionally, they
cite Modrow’s deposition testimony that the recording
No. 06-3427 11
system emitted an audible beep at the beginning of every
phone call, which should have led users of the system
to conclude that their calls were recorded. The existence
of that beep, and what indication it gave to finance de-
partment employees about the privacy of their phone
calls, is disputed; taking the facts in the light most favor-
able to Narducci as the non-moving party, it is not a
basis for summary judgment. If the recording procedures
were as obvious as Lemm and Moore now claim that
they were, then the jury may well conclude that Narducci
did not have a subjective expectation of privacy in
his phone line. That is a factual dispute that the jury
will need to resolve, however.
Nor can this court take at face value Lemm and
Moore’s claim that Narducci could not have expected
his phone calls to remain private in a crowded work area.
Narducci claimed in his deposition testimony that
when discussing a confidential matter he “went to a
phone where there wasn’t a lot of people working
nearby.” If true, this would be sufficient for the jury to
conclude that Narducci had a subjective expectation
of privacy when using one of the village phone lines.
Lemm and Moore also argue, however, that even if
Narducci had a subjective expectation of privacy it was
not an objectively reasonable one. Their contention is
that society would not recognize a reasonable expecta-
tion of privacy in a phone line provided by the Village of
Bellwood for public purposes. Under their theory, the
need to monitor the efficient provision of public services
militates against an expectation of privacy on such a
12 No. 06-3427
phone line. This broad exclusion is in tension with lan-
guage from the Ortega opinion rejecting such a categorical
approach to workplace privacy rights. See Ortega, 480
U.S. at 717 (“Given the societal expectations of privacy
in one’s place of work expressed in both Oliver and
Mancusi, we reject the contention made by the Solicitor
General and petitioners that public employees can
never have a reasonable expectation of privacy in their
place of work.”). As the Court found in Ortega, the idea
that one could conduct confidential business at work,
and have an expectation of privacy when doing so, is not
per se unreasonable.
Lemm and Moore also argue that there was no “search”
here within the meaning of the Fourth Amendment
because, while the calls were recorded, there was no
evidence that anyone ever listened to them. Their
claim here is that if nobody ever learned about the con-
tents of the phone calls then nobody did anything that
could have run afoul of the Fourth Amendment. Narducci
argues that we cannot credit this claim at summary
judgment because there is a factual dispute about
whether anyone listened to the phone calls. Narducci has
not come forward with any evidence that anyone
listened to the calls, and is really alluding to the possi-
bility of a factual dispute more than anything else.2 Never
2
The defendant’s Local Rule 56.1 statement contains two
paragraphs relevant to this dispute. One paragraph states
that Lagen never listened to any of the recordings, and neither
(continued...)
No. 06-3427 13
theless, this is not a proper ground for summary judg-
ment. The defendants ask us to infer from the absence of
evidence in the record that nobody from the Village of
Bellwood ever listened to the recorded phone calls, but
drawing that inference would be incompatible with the
requirement that we draw all reasonable inferences in
favor of the non-moving party.
Taking the facts in the light most favorable to Narducci,
then, he has demonstrated a reasonable expectation of
privacy in his phone line at work. The next issue is
whether the workplace search in this case was con-
ducted in a reasonable manner. In Ortega, the Court
rejected a warrant or probable cause requirement for
workplace searches and instead determined that those
searches must simply be reasonable under all of the
circumstances. Id. at 721-25. “Under this reasonableness
standard, both the inception and the scope of the
intrusion must be reasonable.” Id. at 726. A search by a
superior is justified at its inception “when there are
reasonable grounds for suspecting that the search will
turn up evidence that the employee is guilty of work-
related misconduct, or that the search is necessary for
a noninvestigatory work-related purpose . . . .” Id. The
2
(...continued)
did anyone else in the finance department, while a second
paragraph states that no one was assigned to monitor the
calls. While these statements suggest that nobody listened to
the calls as a matter of course, it would take an inferential leap
for us to accept the defendants’ argument that nobody ever
listened to the calls.
14 No. 06-3427
search is reasonable in scope so long as “the measures
taken by the employer are reasonably related to the
search’s objective and they are not overly intrusive in
light of the nature of the alleged misconduct.” Gossmeyer
v. McDonald, 128 F.3d 481, 491 (7th Cir. 1997). The
district court found that the search was justified at its
inception because it was motivated by a work-related
need to record instances of customers being abusive to
employees (or vice versa) and to monitor the use of village
phone lines for personal calls. It ultimately concluded,
however, that under Narducci’s version of the facts that
recording every single phone call made on those lines for
years without ever notifying the employees was not a
reasonable scope for the search.
Lemm and Moore argue that the district court erred by
finding that the search was unreasonably expansive;
they claim that the parameters of the search were never
broadened, and so if it was reasonable at its inception it
was reasonable throughout its duration. This argument
ignores the excessive duration of the search in this case,
however. The recording here lasted at least six years
(and perhaps longer, given the discrepancy in testimony
about when the phone lines were disconnected);
Narducci worked for Bellwood for approximately two
years before he learned that the phone lines were re-
corded. He testified that he made “hundreds and hun-
dreds” of phone calls, some involving “sensitive
personal matters” that were all recorded on the village’s
Dictaphone system. Narducci testified that all of this was
done without giving any notice to the affected parties.
Ortega necessarily requires a case-by-case inquiry, and
No. 06-3427 15
we need not go beyond the facts of this case when dis-
cussing the Fourth Amendment’s applicability. Given
that the allegations in this case include the recording
of every phone call, for at least a six-year period, with no
notice to the affected employees and with the invasion
of privacy falling particularly hard on finance depart-
ment employees who used those lines every day, Narducci
has presented sufficient evidence of a violation of the
Fourth Amendment to withstand summary judgment.3
B. Whether the right was clearly established
Lemm and Moore also argue that workplace search
and seizure law was not sufficiently developed at the
time of the taping to put them on notice that their
conduct violated constitutional rights. This circuit’s case
3
We emphasize that our ruling here is centered on the fre-
quency with which Narducci used the affected phone lines, the
volume of calls that he made, as well as the lack of notice. The
district court has certified this case as a class action, with the
class including all persons who called into or out from the
phone lines during the duration of the taping. Because of the
sensitive, case-by-case inquiry of Ortega (including its limita-
tion to government employees, which some members of the
purported class are almost certainly not) we are skeptical that
Narducci’s claims are typical of the claims of the entire class
(which theoretically embraces people who made a single
phone call) and suggest that in light of the limited nature of
our ruling the district court may need to revisit the issue of
class action certification pursuant to Federal Rule of Civil
Procedure 23(c)(1)(C).
16 No. 06-3427
law, they argue, remains relatively undeveloped on the
subject of workplace searches and seizures. There have
only been two decisions in this circuit dealing with the
issue, both involving physical searches. In Shields v.
Burge, 874 F.2d 1201, 1204-05 (7th Cir. 1988), we held
that officials who searched a police officer’s desk and a
briefcase found in his car were immune from suit under
§ 1983 because the search did not violate a clearly estab-
lished right. In Gossmeyer v. McDonald, 128 F.3d 481, 491
(7th Cir. 1997), we held that a similar search of a
Child Protective Services employee’s file cabinet was
reasonably related to allegations of workplace miscon-
duct and reasonable in scope. Moreover, the panel found
that all of the officials executing the search were entitled
to qualified immunity. Id. at 495. There is thus no square
holding addressing whether recording an employee’s
phone calls violates his Fourth Amendment rights, and
only two opinions addressing the outlines of Fourth
Amendment rights in the workplace.4
4
Lemm and Moore also cite Amati v. City of Woodstock, 176
F.3d 952 (7th Cir. 1999) and Abbott v. Village of Winthrop Harbor,
205 F.3d 976 (7th Cir. 2000). Neither case supports their qualified
immunity claim on the Fourth Amendment grounds. Amati
considered only claims brought under Title III, and it involved
the recording of phone calls into and out of a police depart-
ment, which obviously involves different justifications than
recording calls into and out of a non-emergency city depart-
ment. Abbott involved both § 1983 claims and Title III claims,
but the opinion is concerned with questions of municipal
liability rather than the scope of Fourth Amendment rights.
No. 06-3427 17
Narducci does not contend that there is a decision
from this circuit or the Supreme Court addressing this
issue, but he argues that the contours of the right were
sufficiently clear. Both Katz and Ortega preceded
Bellwood’s decision to record the phone lines in the
finance department; Lemm and Moore thus should
have known that recording those phone lines was a
violation of constitutional rights. While Gossmeyer and
Shields both permitted workplace searches and found
qualified immunity, neither decision altered the
analysis courts are supposed to apply to such claims
and thus did not blur the lines drawn by Ortega and Katz.
Indeed, the opinion in Shields noted that a search may
not be reasonable if it was a “fishing expedition con-
ducted with the hope that something would turn up.”
Shields, 874 F.2d at 1205 (emphasis in original).
The district court’s summary judgment opinion, for its
part, did not find a case in this circuit holding that this
conduct or similar conduct violated a public employee’s
Fourth Amendment rights. The district court denied
qualified immunity, however, because it found that no
reasonable official could have believed that the indis-
criminate taping of all phone calls, with no notice to
the affected employees, for several years after the com-
plaints and alleged threats had ceased, was reasonably
related to the problem justifying the search. The defen-
dants point out that there is no opinion explicitly
finding such conduct to be a violation of the Fourth
Amendment, but the Supreme Court only requires that
“the unlawfulness must be apparent” in light of the
caselaw. Shields, 874 F.2d at 1205 (quoting Anderson, 483
18 No. 06-3427
U.S. at 640); see also Pelzer, 536 U.S. at 741-42 (finding that
prison officials who used a “hitching post” to punish
inmates were not entitled to qualified immunity despite
the lack of a decision addressing the precise issue).
One of our sister circuits has held that in light of Katz,
recording and disclosing a police officer’s personal phone
call to his wife on a police department telephone system
is a clear violation of the Fourth Amendment and that
the supervisor responsible for the recording was not
entitled to qualified immunity. Zaffuto v. City of Hammond,
308 F.3d 485, 489 n.3 (5th Cir. 2002). 5 Another circuit, in a
case involving text messages on a department-issued
pager, found that in circumstances similar to those in
the present case “it was clear at the time of the search
that an employee is free from unreasonable search and
seizure in the workplace.” Quon v. Arch Wireless Operating
Co., Inc., 529 F.3d 892, 909-10 (9th Cir. 2008) (citing Ortega).6
We agree with those circuits that at the time of the re-
cording in this case, it was sufficiently clear that govern-
5
The conduct in Zaffuto involved both recording and disclosing
a personal phone call, which may be a ground on which to
distinguish Zaffuto from the present case. Once again, the
parties dispute whether Bellwood made any use of the record-
ings in this case. We simply note that the Fifth Circuit found
the right to privacy in personal communications on a city-
issued phone line to be sufficiently clear to preclude a finding
of qualified immunity.
6
The Ninth Circuit in Quon ultimately found that a police
chief was entitled to qualified immunity on a ground not
applicable here. See Quon, 529 F.3d at 910.
No. 06-3427 19
ment employees enjoyed a reasonable expectation of
privacy in the workplace to preclude qualified immunity.
C. Title III claims
Lemm and Moore also moved for summary judgment
on the appellees’ claims that the Village of Bellwood
violated Title III by surreptitiously recording phone calls
from the finance department. This circuit, like a few
others, recognizes qualified immunity as a defense to a
lawsuit under Title III. See Davis v. Zirkelbach, 149 F.3d 614,
618 (7th Cir. 1998); see also Tapley v. Collins, 211 F.3d 1210,
1216 (11th Cir. 2000); Blake v. Wright, 179 F.3d 1003, 1013
(6th Cir. 1999). Lemm and Moore originally moved for
summary judgment by presenting a qualified immunity
defense to the 42 U.S.C. § 1983 claims in the complaint, but
moved for summary judgment on other grounds with
respect to the Title III claims. They then raised qualified
immunity as a defense to the Title III claims in their
reply brief.7 The district court refused to consider the
7
The defendants’ motion for summary judgment raised
several grounds for dismissing the Title III claims, including
the consent and law enforcement exceptions to Title III, the
requirement that a communication be intentionally intercepted
and, in the reply brief, qualified immunity. The district court
dismissed some of Narducci’s claims pursuant to the consent
exception but found that the law enforcement exception
did not apply and that both defendants had intentionally
intercepted calls within the meaning of Title III. On appeal,
(continued...)
20 No. 06-3427
argument; the appellants had forfeited it, the court con-
cluded, by not bringing it up in their original submission.
(The appellants have provided, in the appendix to their
appellate briefs, a second summary judgment submission
with a more fulsome qualified immunity discussion.
They filed this second motion after the district court
issued its summary judgment opinion, however, and the
district court did not grant them reconsideration.)
In proceedings before the district court, counsel for
Lemm and Moore conceded that, “when we raised the
argument of qualified immunity, we raised it only under
the section that was entitled Fourth Amendment.” That
would seem to be the end of the issue, since the district
court is entitled to find that an argument raised for the
first time in a reply brief is forfeited. Cromeens, Holloman,
Sibert, Inc v. AB Volvo, 349 F.3d 376, 389 (7th Cir. 2003)
(“Because Volvo raised the applicability of the Maine
statute in its reply brief, the district court was entitled to
find that Volvo waived the issue.”). Lemm and Moore
contend, however, that they can also appeal the denial
of qualified immunity under the collateral order doctrine.
The classic formulation of the collateral order doctrine
holds that a non-final decision of the district court can
be reviewed if it falls within “that small class which
finally determine claims of right separable from, and
7
(...continued)
defendants do not raise those issues except insofar as they
affect their qualified immunity defense, and so we only
evaluate whether the district court correctly found that the
qualified immunity defense was forfeited at summary judgment.
No. 06-3427 21
collateral to, rights asserted in the action, too important
to be denied review and too independent of the cause
itself to require that appellate consideration be deferred
until the whole case is adjudicated.” Cohen v. Beneficial
Indus. Loan Corp., 337 U.S. 541, 546 (1949). While an
appeals court can review a claim of qualified immunity
after trial, and can vacate an adverse judgment if it
finds that the officials are protected by qualified
immunity, the doctrine is a protection from suit as well as
a protection from liability. See Mitchell v. Forsyth, 472
U.S. 511, 526-27 (1985). In this way, qualified immunity
is like the right against double jeopardy; a court cannot
very well vindicate a right not to stand trial after an
official has already stood trial. Thus, an appeals court can
review a denial of summary judgment on qualified im-
munity grounds so long as the denial was not because of
a disputed factual issue. Id. at 530.
This argument does not get Lemm and Moore very far,
however, because it merely supports jurisdiction over
the appeal from the denial of summary judgment. As
discussed above, the district court was entitled to find
that Lemm and Moore waived the qualified immunity
defense in the summary judgment proceedings because
they failed to raise the issue before their reply brief. Of
course, Lemm and Moore also presented a successive
summary judgment motion to the district court, which
it refused to consider. The collateral order doctrine may
give them grounds to appeal the denial of (or rather,
refusal to consider) that second motion. Our review on
that issue is limited, because the filing of successive
summary judgment motions is a matter within the dis-
22 No. 06-3427
cretion of the district court. See Whitford v. Boglino, 63 F.3d
527, 530 (7th Cir. 1995) (“the district court may, in its
discretion, allow a party to renew a previously denied
summary judgment motion or file successive motions,
particularly if good reasons exist.”). Lemm and Moore
argue that the district court should have considered the
qualified immunity issue at summary judgment because
the defense is sufficiently important that the failure
to consider it was plain error. See Yorger v. Pittsburgh
Corning Corp., 733 F.2d 1215, 1220-21 (7th Cir. 1984) (an
argument will not be considered waived if it would
result in a plain miscarriage of justice).
The present case does not support reversal on an other-
wise forfeited ground, however. First, Lemm and Moore
were represented by counsel below, and it is not unfair
to hold them to the standards of waiver to which all
counsel are held. Second, Lemm and Moore were the
moving party for summary judgment; if they felt
entitled to terminate the proceedings because of qualified
immunity, they were required to bring that issue to the
district court’s attention. Finally, as the district court
pointed out, the present case has been litigated since
2001, while the motions for summary judgment were
submitted in 2006; five years is ample time for the defen-
dants to develop the issue and present it in their initial
motion.
We also note that Lemm and Moore have pled the
defense of qualified immunity on the Title III claims
and that it remains available as a basis for a motion
for judgment as a matter of law during the course of a
No. 06-3427 23
trial in this case, or depending on the jury’s verdict, as
the basis for an appeal afterwards.
III. Conclusion
For the foregoing reasons, we A FFIRM the district
court’s denial of the defendants’ motion for summary
judgment.
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