Judge: Questions in Chicago cops' privacy lawsuit vs Sun-Times limited to whether paper broke law

By Scott Holland | Oct 10, 2016

A federal judge has handed wins to five Chicago police officers in the latest rounds of proceedings in their lawsuit against the Chicago Sun-Times over the paper’s publication of the officers’ photos and other information as part of the paper’s exposé of the investigation of the 2004 death of a man punched by Richard Vanecko, a city cop and nephew of former Mayor Richard Daley. 

The officers sued the paper about a story published 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. The officers alleged the Sun-Times had violated the federal Driver’s Privacy Protection Act in obtaining and publishing certain identifying information. The paper had alleged the police department used the officers in a suspect lineup because they so closely resembled Vanecko, so as to intentionally confuse witnesses. 

U.S. District Judge Harry D. Leinenweber had rejected the Sun-Times’ motion to dismiss the case. The U.S. Seventh Circuit Court of Appeals in Chicago on Feb. 6, 2015, upheld that ruling, finding the paper had no right to obtain or publish the information. After remanding the case, the paper filed an answer to the officers’ complaint with nine affirmative defenses. Then the officers moved for judgment on the pleadings in their favor and to either dismiss the defenses or have them stricken, while also seeking “a protective order limiting discovery to the issue of whether the Sun-Times violated the DPPA.” 

Leinenweber issued his opinion on the motions Sept. 29. He wrote the newspaper “in its answer and affirmative defenses, wants to reargue all of the same points that it argued before the Seventh Circuit” and also tried to distinguish its reporting as a matter of public safety that legally trumps DPPA’s nondisclosure language. He also noted the question of whether the paper obtaining the records was justified because the CPD, according to the Attorney General, violated the Freedom of Information Act by being slow to turn over photos from the suspect lineup. 

While acknowledging the Sun-Times did not have the lineup photographs at the time it obtained the officers’ information, Leinenweber noted the paper did get those photos three days before publishing the private data. The Sun-Times also argued it got the information from the Secretary of State’s Office, not the Department of Vehicles, but Leinenweber points out that argument “goes nowhere” because in Illinois the two are synonymous. Further, he noted none of the more than 25 references to public safety in the Illinois Vehicle Code can be linked to investigations of police misconduct. 

Leinenweber denied a motion for judgment on the pleading as regarding the claim that obtaining the information violated the DPPA, but granted it with respect to the publishing. He made the same split on the First Affirmative Defense with respect to obtaining the data from the Secretary of State’s Office, granting the motion in regards to publishing. 

He explained, “The DPPA prohibits a person ‘knowingly to obtain or disclose personal information from a motor vehicle record.’ The Sun-Times acknowledged that it did so.” 

The judge further granted motions for judgment on eight other Affirmative Defenses, frequently quoting the Seventh Circuit’s holdings, then partially granted the protective order. He concluded by writing, “Discovery is limited to the obtaining and publishing of the plaintiffs’ personal information and the issue of damages claimed by the plaintiffs. Since Vanecko was subsequently indicted, pled guilty, and is currently incarcerated, there is no need to retrace all of the manipulation of the Vanecko investigation.”

The plaintiff officers are represented in the case by attorneys Ronald C. Dahms and Sean Starr, each of Northfield.

The Sun-Times is represented by the firm of Funkhouser Vegosen Liebman & Dunn, of Chicago.

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Chicago Sun-Times Funkhouser Vegosen Liebman & Dunn Ltd. Law Offices of Sean Starr Ronald C. Dahms

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