CHICAGO — A federal judge has squelched a lawsuit brought by two former Metropolitan Water Reclamation District police officers, who said their rights were violated with the MWRD fired them after the Illinois State Police informed their employer a private conversation between the two officers was broadcast over the state police's secure radio frequency.
On March 13, U.S. District Judge Robert M. Dow Jr. dismissed the case brought by plaintiffs Denis Lawlor and Daniel Varallo against the Illinois State Police, the Metropolitan Water Reclamation District of Greater Chicago and Motorola.
In 2015, Lawlor and Varallo, former police officers for the MWRD, held a private conversation on their radios while they said they were inadvertently tuned to the frequency that the Illinois State Police uses, which is a violation of law.
Michael Ettinger
According to the decision, state police overheard the conversation, recorded it and gave a copy to the MWRD, who then fired them. Lawlor and Varallo had claimed that their conversation was broadcast on the state police’s channel because one of their handheld radios, which was made by Motorola, had malfunctioned.
Lawlor and Varallo then filed suit against the Illinois State Police, MWRD and Motorola. They claimed that the state police and its employees violated their First and Fourth Amendment rights, due process rights and equal protection rights. They also accused the state police, the MWRD and its employees of violating the Electronic Communication Privacy Act. Additionally, the plaintiffs alleged “a number of state law claims” against all the defendants, including Motorola.
The defendants then filed motions to dismiss the suit for lack of subject matter jurisdiction and for failure to state a claim. Dow agreed, dismissing all of the plaintiffs’ claims.
Dow said the plaintiffs’ First Amendment claim was “not entirely clear.” He further wrote in the decision that they did “not allege any policy or practice of the MWRD that led to [the] plaintiffs’ alleged civil rights violation.” Dow then shot down their equal protection argument, ruling that they failed to show “that similarly situated individuals were treated differently, or… that [the] defendants acted with the requisite animus— without any rational basis,” according to the decision.
Dow also rejected the plaintiffs’ due process claims.
“[The] plaintiffs were not employed by the Illinois State Police,” he wrote in the decision. “And [the] plaintiffs do not allege that either the Illinois State Police or any of its employees played any role in the decision to terminate [the] plaintiffs’ employment. Because [the] plaintiffs do not allege that the state defendants played any role in the decision to terminate [the] plaintiffs’ employment, [the] plaintiffs fail sufficiently to allege their procedural due process claim against the state defendants.”
Dow also rejected the plaintiffs’ Electronic Communication Privacy Act claim, also known as the “Wiretap Act,” ruling that the defendants had not committed any violations.
“[The] plaintiffs admit that the state defendants did not intentionally overhear the conversation between [the] plaintiffs,” he wrote in the decision. “…Because the Wiretap Act does not apply to inadvertent interceptions… the state defendants did not violate the Wiretap Act by unintentionally overhearing the conversation… Furthermore, [the] plaintiffs do not allege facts sufficient to establish that the state defendants intended to record [the] plaintiffs’ conversation. It is likely—based on the experience of the court and common sense—that the Illinois State Police constantly record communications occurring on its private police radio channel.”
Lastly, Dow dismissed the state-law claims against all the defendants, including Motorola, “because the court is dismissing [the] plaintiffs’ federal claims.”
The plaintiffs are represented by attorneys Daniel G. Austin and John J. Downey, each of Hinsdale; Michael D. Ettinger, of Ettinger and Besbekos P.C., of Palos Hills; and Dennis Alan Berkson, of Chicago.
Motorola is represented by attorneys John H. Scheid and James J. Sipchen, of Pretzel & Stouffer, of Chicago.
The Illinois State Police and ISP defendants are defended by the Illinois Attorney General's office.
And the MWRD and its employees are represented by MWRD staff attorneys.