Campiti v. Walonis, 79-1213

Citation611 F.2d 387
Decision Date18 December 1979
Docket NumberNo. 79-1213,79-1213
PartiesFrancesco G. CAMPITI et al., Plaintiffs-Appellees, v. Michael A. WALONIS et al., Defendants-Appellants.
CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)

Lee Carl Bromberg, Sp. Asst. Atty. Gen., Boston, Mass., with whom Francis X. Bellotti, Atty. Gen., Boston, Mass., was on brief, for defendants-appellants.

Max D. Stern, Boston, Mass., with whom Stern & Shapiro, Boston, Mass., was on brief, for plaintiffs-appellees.

Before COFFIN, Chief Judge, CAMPBELL and BOWNES, Circuit Judges.

BOWNES, Circuit Judge.

This is an appeal by defendants-appellants from a judgment of the district court holding them liable to plaintiffs-appellees in a 42 U.S.C. § 1983 civil rights action for intercepting and disclosing a telephone conversation in violation of Title III of The Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2520. Defendants were also found liable in a pendent jurisdiction action brought pursuant to the Massachusetts statute covering the interception of wire communications, Mass.Gen.Laws ch. 272, § 99, which has a civil remedy provision, part Q, similar to the federal law.

Plaintiff Francesco Campiti was an inmate at Massachusetts Correctional Institute, Walpole (Walpole), at the time the telephone conversation was intercepted. Plaintiff Joseph Pioggia was at the Franklin County House of Correction. The defendants are Frank Hall, Massachusetts Commissioner of Corrections; Michael Walonis, an investigator for the Security Management Team (S.M.T.) of the Massachusetts Department of Corrections; Frank Gunther, Superintendent of Walpole; and Dennis Brown, Deputy Superintendent of Walpole.

The issues involve the applicability of the federal and state statutes and the defenses available under them.

The Facts

The district court's thoughtful and comprehensive opinion, Campiti v. Walonis, 453 F.Supp. 819 (D.Mass.1978), contains a detailed exposition of the facts from which we borrow heavily.

On September 13, 1975, both plaintiffs were inmates of the Franklin County House of Correction. Starting that day, the Springfield Union, a newspaper circulated in the area, printed the first of a series of articles asserting that plaintiffs, along with certain other inmates, had been improperly receiving favored treatment, such as work release privileges and furloughs, from Sheriff Martin, the person in charge of the House of Correction. Because of the articles, defendant Hall transferred Campiti to Walpole where he was placed in a maximum security unit. Pioggia was not transferred to Walpole. Hall also ordered an S.M.T. investigation of conditions at the Franklin County House of Correction. 1 After arriving at Walpole, Campiti requested permission to telephone Sheriff Martin.

On September 19, 1975, Walonis came to Walpole in connection with another S.M.T. investigation. He met with defendants Gunther and Brown in Gunther's office. During the meeting, Gunther brought up Campiti's request to call Sheriff Martin. It was agreed that permission to make the call should be given and that Walonis would monitor it. Walonis then went to the Outer Control Section of the prison where he would be able to listen to the conversation by using an extension telephone wired directly into the main switchboard. This extension phone was part of an override extension system at Walpole which can intercept any call. This system provides emergency contact with any part of the prison. It is also used to monitor inmate calls, which is done on an average of about two calls a week, or when there is reason to expect illegal inmate activity. The extension system is also used to monitor staff calls to ensure that they are not made for personal use.

Campiti was notified that he could call Sheriff Martin and was taken to Brown's office to do so. The call was put through via New England Tel. and Tel. lines by a prison officer, James Lambirth, who turned the phone over to Campiti after Martin was identified as being on the other end. After Campiti took the phone, Lambirth went into another office where he could hear the sound of Campiti's voice, but could not make out what he was saying. It was usual procedure for an officer to position himself so as to be able to hear and comprehend telephone calls made by a maximum security inmate. This was not done in this case because the officer knew the call was being monitored.

Walonis monitored the call, which took about five minutes, and made handwritten notes of the conversation. In addition to talking to Sheriff Martin, Campiti also talked to Pioggia. Walonis prepared a one page report on the call which was made part of the S.M.T. final investigation report. The contents of the call were disclosed to various individuals, including, but not limited to, defendants Hall, Gunther, and Brown. Hall specifically authorized disclosure of the substance of the call to the Attorney General of Massachusetts, the Franklin County District Attorney, and a state police officer named George Powers.

The district court made specific findings which are not challenged on appeal. None of the participants in the call consented to or was aware that it was being monitored. Although appellants do not contest this finding, they do claim that consent and knowledge should be implied from the circumstances in which the call was made. The monitoring was uncovered during discovery procedures in another case, See footnote 1, Supra. There were no regulations at Walpole informing inmates that telephone calls might be monitored. The usual method of monitoring inmate calls was by a prison officer remaining close enough to hear what the inmate said.

The district court also found that Walonis knew of the federal wiretap statute at the time he monitored the call, but thought that it only applied to a foreign device attached to a telephone line. He was unaware of the Massachusetts wiretap statute. The court noted, without making a finding, that Walonis testified that he believed then, and still believes, that monitoring an inmate call on institution equipment in a maximum security prison was perfectly legal. Defendants Gunther and Brown also held the same belief. The court found that Walonis, as a member of S.M.T., had never previously monitored a telephone call, although he had done so when he was a switchboard operator at Massachusetts Correctional Institute, Norfolk.

Appellants object to the finding of the district court that this monitoring was not reasonably related to maintaining internal security at Walpole. Our examination of the record convinces us that this finding was not clearly erroneous; in fact, it seems clearly correct.

I. The Federal Statute

The liability sections of the statute are 18 U.S.C. §§ 2511(1)(a) and 2520. Section 2511(1)(a) subjects to criminal sanctions:

any person who

(a) willfully intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire or oral communication(.)

Civil actions are authorized under section 2520:

Any person whose wire or oral communication is intercepted, disclosed, or used in violation of this chapter shall (1) have a civil cause of action against any person who intercepts, discloses, or uses, or procures any other person to intercept, disclose, or use such communications, and (2) be entitled to recover from any such person

(a) actual damages but not less than liquidated damages computed at the rate of $100 a day for each day of violation or $1,000, whichever is higher;

(b) punitive damages; and

(c) a reasonable attorney's fee and other litigation costs reasonably incurred.

A. The Claimed Exclusions

Appellants claim that, because of the equipment used and the circumstances under which the intercept was made, they come within specific exclusionary provisions of the statute. The first such provision relied on is in the definitions part of the statute, 18 U.S.C. § 2510(5)(a)(i) and (ii):

(5) "electronic, mechanical, or other device" means any device or apparatus which can be used to intercept a wire or oral communication other than

(a) any telephone or telegraph instrument, equipment or facility, or any component thereof, (i) furnished to the subscriber or used by a communications common carrier in the ordinary course of its business and being used by the subscriber or used in the ordinary course of its business; or (ii) being used by a communications common carrier in the ordinary course of its business, or by an investigative or law enforcement officer in the ordinary course of his duties(.)

Appellants argue that, since Walonis was using an extension phone furnished by the telephone company in the ordinary course of its business and that his use was in the ordinary course of business at Walpole and/or was being used by him as a law enforcement officer in the ordinary course of his duties, there was no violation of the Act. This argument assumes as a predicate the key question: whether Walonis' use was "in the ordinary course of business at Walpole and/or whether Walonis' use was in the ordinary course of his duties" as a law enforcement officer.

Before we get to this issue, we first deal with appellants' assertion that an "extension phone" exemption has been carved out of the Act, excluding the use of extension phones from its prohibition. Appellants rely primarily on four cases, none of which we find controlling. In Anonymous v. Anonymous, 558 F.2d 677 (2d Cir. 1977), the Second Circuit held that the Act did not encompass the taping of a wife's telephone calls for use in a custody fight. 2 The court reasoned that, since what was involved was purely a domestic conflict, it did not rise to the level of a violation of the statute. Id. at 679. While the court in passing did state that a husband's listening in on the telephone calls of his wife and daughter would be in the ordinary course of the user's business, Id. at 678,...

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    ...States Dep't of Justice, 497 F.Supp. 500, 504 n. 4 (D.Conn.1980); Campiti v. Walonis, 453 F.Supp. 819, 825 (D.Mass.1978), aff'd, 611 F.2d 387 (1st Cir.1979); see also Sen. Rep. No. 1097, 90th Cong., 2d Sess., 1968 U.S.Code Cong. & Admin.News 2112, 2196 ("Injunctive relief ... is not intende......
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