Wilmette man asks court to reconsider if cops violated his rights to photo, video neighbors in public

By Scott Holland | Mar 4, 2019

CHICAGO - A Wilmette man is asking the U.S. Seventh Circuit Court of Appeals to reconsider his lawsuit accusing the village of Wilmette of violating his constitutional rights by asking him to stop tracking his neighbors’ activities to prove they were violating condo association rules.

Seventh Circuit judges William Bauer, Michael Kanne and Michael Brennan issued their opinion Feb. 14 upholding the decision of U.S. District Judge Sara Ellis, who dismissed the complaint Marshall Spiegel filed against the village and his neighbor, Corrine McClintic. 

In affirming Ellis’ finding, the panel said conspiracy allegations fail because Spiegel didn’t say the Wilmette police agreed to arrest Spiegel at McClintic’s direction, and that a private citizen giving information to law enforcement doesn’t mean they worked together, even if an unconstitutional arrest ensues. Saying police didn’t consider Spiegel’s explanations for why he was acting within the law is insufficient to establish a conspiracy, the court ruled.

In his petition for a rehearing, Spiegel emphasized how “disorderly conduct statutes are directed solely at unreasonable conduct that actually causes public disturbances” and can’t be used to curb First Amendment rights. He said the panel’s ruling is an open-ended interpretation that would allow law enforcement agencies to abuse disorderly conduct ordinances.

According to court documents, Spiegel believed McClintic and her husband, William McClintic, are improperly renting the unit they bought in 2015 in a building where he’s lived for 22 years. Spiegel said the couple doesn’t live in the building but uses the pool almost daily. After he began photographing and filming them, Corinne McClintic filed police reports from June-October 2016. In a June 2016 incident, she said Spiegel jumped in front of her car to photograph her. Although Spiegel wasn’t arrested, Wilmette police threatened a disorderly conduct arrest, prompting his lawsuit.

In support of his petition, Spiegel cited a 2012 Seventh Circuit opinion in ACLU v. Alvarez, in which the court determined audiovisual recording is “included within the free speech" guarantees of the U.S. Constitution, and a 2016 Seventh Circuit opinion in Catledge v. Chicago that established the irrelevancy of some “suspicious circumstances” that might “suggest disorderly conduct.”

Spiegel said the court should have required McClintic and the village to fully define the circumstances that elevated his lawful public recording into a crime or probable cause a crime was committed. He further said the way Wilmette police demanded he stop recording — alleging he was threatened with arrest on three occasions — is enough to establish a municipal policy that abridges the right to use a camera in public.

In addressing his allegations that the village conspired with McClintic, Spiegel pointed to “numerous conversations” between the parties and said whether a conspiracy or complicity existed is a factual issue for a jury to decide, not the trial judge.

Even if McClintic’s reports to police were false, Spiegel asserted, “Wilmette cannot arrest Spiegel for photographing or videotaping McClintic in public if the ‘disorderly conduct’ was McClintic didn't like what Spiegel was doing.”

Spiegel also said the panel erred in the standard it imposed for him to amend his complaint and, further, that it should’ve applied federal pleading rules for damages in his claim of intrusion upon seclusion against McClintic, which rise from his allegation she violated state law by photographing the inside of his condo without consent.

He wants the panel to reverse its Feb. 14 decision, reverse Ellis’ earlier decisions and assign a new judge to the case once it is remanded to federal court.

Spiegel is represented by the Law Office of John S. Xydakis, of Chicago.

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U.S. Court of Appeals for the Seventh District Village of Wilmette

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