Panel refuses to throw out Chicago cops' lawsuit against Sun-Times over police lineup story

By Jonathan Bilyk | Feb 10, 2015


While within its rights to pursue allegations of corruption, the Chicago Sun-Times may have violated a federal law in obtaining and publishing certain identifying information of five Chicago Police officers who the newspaper alleged were put in a police lineup to confuse witnesses in the investigation of the 2004 death of a man punched by Richard Vanecko, a city cop and nephew of former Mayor Richard Daley.

The U.S. Seventh Circuit Court of Appeals in Chicago on Feb. 6 ruled in favor of the police officers, upholding the decision of U.S. District Judge Harry D. Leinenweber to reject the Sun-Times’ motion to dismiss the case.

Judge Joel M. Flaum wrote the panel's opinion that rebuffed the Sun-Times’ constitutional concerns and sent the case back to Chicago's federal court for further proceedings on the officers’ allegations against the newspaper. Judges William J. Bauer and John Daniel Tinder concurred in the ruling.

“Sun-Times’ publication of the officers’ personal details both intruded on their privacy and threatened their safety, while doing little to advance Sun-Times’ reporting on a story of public concern,” the panel held.

The case stems from an article published by the Sun-Times in November 2011, several months after the Chicago Police Department closed its investigation into the death of David Koschman, who died after a drunken altercation with Vanecko on Division Street.

Witnesses said Koschman, who was significantly smaller than Vanecko, was the victim of a single punch thrown by the nephew of then-Mayor Daley. Koschman died 12 days later.

Several weeks after Koschman died, police placed Vanecko in a lineup. Citing the failure of witnesses to positively identify Vanecko as the man who threw the punch, police declined to charge Vanecko at that time.

Eventually, however, a special prosecutor was appointed in the case, and Vanecko pleaded guilty to involuntary manslaughter. He was sentenced to 60 days in jail, and ordered to pay Koschman’s family $20,000.

Because of Vanecko’s connections to Daley, the investigation was extensively covered by Chicago media, including the Sun-Times, which criticized the police’s work in the case.

In the November 2011 article, the Sun-Times critiqued the police lineup, noting that the five innocent cops chosen to stand with Vanecko in the lineup – the so-called “fillers” – bore close resemblance to Vanecko in most respects, which the newspaper said made the witnesses’ task of identifying him difficult.

To support the assertion, the Sun-Times published with the article the names and photographs of the officers legally obtained under the Freedom of Information Act, as well as the officers’ birth dates, height, weight, and eye and hair colors allegedly obtained from motor vehicle records kept by the Illinois Secretary of State’s office.

Soon after publication, the five officers sued the newspaper, claiming the Sun-Times’ acquisition and use of the information from the Secretary of State’s records violated the federal Driver’s Privacy Protection Act, which prohibits knowingly obtaining or disclosing “personal information from a motor vehicle record.”

The officers asked the court to award them actual and punitive damages and order the paper to “permanently remove their information from its publications.”

The Sun-Times asked the court to dismiss the suit, contending the law was not intended to include the information published and that the prohibition against the use of such information violated journalists’ constitutional free press and speech rights, as it “restricts the news media’s ability to gather and report the news.”

The lower court disagreed and dismissed the Sun-Times’ request to toss the cops' suit. In its recent ruling, the federal appeals court backed that decision.

The Seventh Circuit judges said the plain reading of the law – which ostensibly was intended to prevent would-be stalkers from obtaining information about their potential victims from motor vehicle records – covers the information about the five officers the paper obtained and published.

Further, the panel held that the law did not violate the First Amendment in this case, as it does not restrict journalists’ ability to obtain and publish such identifying information about the officers, if obtained from other legal sources.

And the judges further noted, in this case, the Sun-Times is alleged to have knowingly both obtained the information from an illegal source, and then published that information.

“Sun-Times … cites no authority for the proposition that an entity that acquires information by breaking the law enjoys a First Amendment right to disseminate that information,” the judges wrote.

“Although Sun-Times claims that, in acquiring and disclosing truthful information, it engaged only in ‘perfectly routine, traditional journalism,’ it cannot escape the fact that it acquired that truthful information unlawfully.”

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