CHICAGO — The city of Evanston and its police chief can't shake at least parts of lawsuits over accusations the chief improperly posted suspects' photos to Snapchat, a federal judge has ruled.
Evanston and Police Chief Demitrous Cook face two lawsuits alleging Fourth and 14th amendment violations, defamation and infliction of emotional distress, among other counts. According to the plaintiffs, Cook posted photos to his personal, public Snapchat account on Feb. 17, as well as their birthdates and last known addresses. The complaints say all the photos were connected to police investigations, and some had “in custody” or “DOA” written next to their images.
Kevin Logan, who sued as an individual, said his photo included the handwritten words “pending” and “HIV.” The Snapchat post allegedly made its way to Facebook and personal text messages. Logan said he hadn’t been diagnosed with or tested for HIV, but he did take a test Feb. 22 that came back negative.
On Feb. 21, Cook removed the photos from his Snapchat story and issued a statement saying the photos were taken to aid him in the investigation and that he didn’t realize they could so easily be made public.
Cook and the city asked Judge Matthew Kennelly to dismiss Logan’s complaint, as well as the class action from five named defendants. In an opinion issued Oct. 12, Kennelly agreed to strike the claims alleging willful and wanton conduct, as well as state law claims against the city, Logan’s alleged violations of the Illinois Constitution and the class group’s 14th Amendment due process claim.
Kennelly said the defendants didn’t address the Fourth Amendment claim in their opening briefs, thereby forfeiting any challenge to legal sufficiency.
The judge agreed with the defendants that the class group failed to state a valid 14th Amendment due process claim because it didn’t show any harm suffered as a result of the photo posting. But Kennelly sided with Logan because his allegation included a reference to a potential medical condition, which constitutes protected “highly personal information.”
Kennelly also agreed with the group plaintiffs concerning the 14th Amendment equal protection claims, rejecting the city’s argument they were obligated to show how white suspects were treated differently. While the allegations don’t prove the group’s argument, Kennelly said they are sufficient to survive a motion to dismiss.
Logan made similar successful arguments — that Cook didn’t post photographs of white arrestees, the judge said. Kennelly also noted Logan’s reference to Cook’s statement regarding the incident “does not mean that he has adopted it or conceded its accuracy."
"And at this point in this lawsuit, Logan is not required to prove that Cook acted intentionally; he need only allege it," the judge said.
Kennelly also refused to dismiss claims seeking to hold the city liable for Cook’s conduct because of his role as a final policymaker, in part pointing to Cook’s own statement his actions occurred “during the course of a criminal investigation.” He further rejected Cook’s invocation of qualified immunity protection at this stage of litigation, noting neither he nor the city mentioned the phrase in opening briefs.
On the state law claims, Kennelly said Logan can continue with his defamation claim against the police chief, for including the note concerning HIV with his photo. Kennelly said such baseless implications of his HIV status cannot reasonably be construed to be innocent when the defamatory meaning is more reasonable.
Kennelly, however, dismissed Logan’s state law claims regarding privacy, due process and individual integrity, finding Illinois doesn’t allow private actions on such grounds.
But the judge said he will allow all plaintiffs to bring their indemnification claims against the city, noting Evanston didn’t argue “Cook acted outside the scope of his employment.”
Kennelly gave Evanston and Cook until Nov. 3 to address the remaining claims.
The class plaintiffs are represented by attorneys Andrew M. Hale, of Hale Law LLC, of Chicago; and Shawn W. Barnett, of Hale & Monico LLC, of Chicago.
Logan is represented in the action by attorneys Ilia Usharovich, of Wheeling, and Sheldon M. Sorosky, of Wilmette.
Cook is represented by attorney Hubert O. Thompson, of Brothers & Thompson P.C., and attorney Charles E. Pinkston, both of Chicago.
Evanston is represented by attorney Nicholas E Cummings, of Evanston, and attorneys with its Department of Law.