Abraham v. County of Greenville

• Decision Date: 02 November 2000
• Docket Number: No. 00-1150,00-1150
• Citation: 237 F.3d 386
• Parties: (4th Cir. 2001) MICHAEL B. ABRAHAM; SHIRLEY B. KEATON; DON HENSLEY; HARRY H. NELSON; MILDRED J. STOKES, individually and on behalf of all others similarly situated, Plaintiffs-Appellees, v. COUNTY OF GREENVILLE, South Carolina, Defendant-Appellant, and PERRY EICHOR; JAMES E. MCDONALD; JAMES M. DORRIETY; DAVID WALKER, Defendants. . Argued:
• Court: U.S. Court of Appeals — Fourth Circuit

Page 386

237 F.3d 386 (4th Cir. 2001)

MICHAEL B. ABRAHAM; SHIRLEY B. KEATON; DON HENSLEY; HARRY H. NELSON; MILDRED J. STOKES, individually and on behalf of all others similarly situated, Plaintiffs-Appellees, v. COUNTY OF GREENVILLE, South Carolina, Defendant-Appellant, and PERRY EICHOR; JAMES E. MCDONALD; JAMES M. DORRIETY; DAVID WALKER, Defendants.

No. 00-1150.

UNITED STATES COURT OF APPEALS, FOR THE FOURTH CIRCUIT.

Argued: November 2, 2000.

Decided: January 10, 2001.

Appeal from the United States District Court for the District of South Carolina, at Greenville.

G. Ross Anderson, Jr., District Judge. (CA-98-3201-6-13) COUNSEL ARGUED: Brent Overton Edgar Clinkscale, WOMBLE, CARLYLE, SANDRIDGE & RICE, Greenville, South Carolina, for Appellant. James Edward Bradley, WILSON, MOORE, TAYLOR & O'DAY, West Columbia, South Carolina, for Appellees. ON BRIEF: Jacquelyn D. Austin, Riche T. McKnight, WOMBLE, CARLYLE, SAN-DRIDGE & RICE, Greenville, South Carolina; Boyd B. Nicholson, Jr., HAYNSWORTH, MARION, MCKAY & GUERARD, L.L.P., Greenville, South Carolina, for Appellant. S. Jahue Moore, David L. Thomas, WILSON, MOORE, TAYLOR & O'DAY, West Columbia, South Carolina, for Appellees.

Before WILKINSON, Chief Judge, and WILKINS and MOTZ, Circuit Judges.

Affirmed by published opinion. Chief Judge Wilkinson wrote the opinion, in which Judge Wilkins and Judge Motz joined.

OPINION

WILKINSON, Chief Judge:

Several state court judges brought suit against the County of Greenville, South Carolina, under the federal wiretapping statute (Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510 et seq.). Plaintiffs allege that the County illegally recorded the telephone calls they made from their offices in the County's Detention Center. Greenville County argues that its conduct was excused by the "law enforcement exception" to Title III, which permits wiretapping conducted by an "investigative or law enforcement officer in the ordinary course of his duties." 18 U.S.C. § 2510(5)(a)(ii). The district court rejected this argument as a matter of law. Because the County did not record the judges' phone conversations in the ordinary course of its law enforcement duties, and because the district court otherwise acted within its discretion, we affirm the judgment in favor of plaintiffs.

I.

In 1994, Greenville County, South Carolina completed construction on its new Detention Center. The Detention Center contained a jail, visitation facilities, and offices for law enforcement and administrative personnel. A separate section of the Detention Center con tained offices and courtroom facilities for city and county judges. This area was known as the Judicial Corridor.

While building the new facility, the County installed a recording system in the Detention Center. The system recorded incoming and outgoing telephone calls, seven days per week, twenty-four hours a day. According to the County, the system was intended to record the calls of the Detention Center's administrative personnel and the guards in the jail. The County contends that it installed the system for safety reasons and to ensure that Detention Center employees were properly carrying out their duties. In the past, private citizens had called the Detention Center complaining about prisoner mistreatment and other illegal conduct by the guards. The County believed that recording incoming calls would allow it to more fully investigate these complaints. Greenville County notified the guards and the administrative personnel in the Detention Center about the recording system. The County required these employees to sign consent forms acknowledging that their phone conversations might be monitored.

The system did not record all calls into the Detention Center. For instance, it excluded phones meant for use by inmates and attorneys. Nor did it record the pay phones in the Detention Center's lobby. However, the system did record the telephones in the Judicial Corridor. These included the lines used by the city and county judges. Whether the County intentionally or mistakenly recorded the judges was vigorously disputed at trial. Whatever the reason, it is clear that Greenville County never notified the judges that their calls were being recorded. In early 1998, the County installed a new recording system at the Detention Center. Again, this system recorded telephones in the Judicial Corridor.

In August 1998, Michael B. Abraham, a City Administrative Judge, began to suspect that his phone in the Judicial Corridor was wiretapped. On September 3, 1998, James McDonald, the jail administrator, confirmed Abraham's suspicions. McDonald informed Abraham that it was not possible for the County to remove the telephone lines in the Judicial Corridor from the recording system. According to McDonald, the recording system was attached to a single trunk line. Since the judges' extensions were part of that trunk line, they could not be individually removed from the system. On September 30, 1998, Greenville County deactivated the Detention Center's entire recording system.

Abraham and several other judges subsequently brought suit against Greenville County and four individual defendants in state court under the federal wiretapping statute (Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510 et seq.). The defendants removed the suit to federal district court. A jury trial then commenced. On October 5, 1999, the district court declared a mistrial after determining that Greenville County had committed discovery abuses. The district court ordered Greenville County to engage in additional depositions and other discovery. Subsequently, plaintiffs agreed to dismiss the individual defendants in the case.

At the new trial in November 1999, the jury awarded plaintiffs $276,660.00 in damages. Greenville County subsequently moved, pursuant to Fed. R. Civ. P. 50(b), 59(a), and 59(e), for either a judgment as a matter of law, a new trial, or a remittitur and an amendment to the judgment. On November 24, 1999, plaintiffs filed a petition for attorneys' fees and costs pursuant to 18 U.S.C.§ 2520(b)(3). The district court denied Greenville County's motion in its entirety and granted plaintiffs' petition. Greenville County now appeals.

II.

A.

Title III of the Omnibus Crime Control and Safe Streets Act provides a civil remedy against any person who "intentionally intercepts" another person's wire, oral, or electronic communications. See 18 U.S.C. § 2520(a) & 18 U.S.C. § 2511(1)(a); see also Sanders v. Robert Bosch Corp., 38 F.3d 736, 739-40 (4th Cir. 1994). The term "intercept" means the acquisition of such communications through the use of any "electronic, mechanical, or other device." 18 U.S.C. § 2510(4). However, Title III creates a law enforcement exception by defining "electronic, mechanical, or other device" to exclude equipment "being used by . . . an investigative or law enforcement officer in the ordinary course of his duties." 18 U.S.C.§ 2510(5)(a)(ii).

Protecting the privacy of individuals who use the specified means of communication "was an overriding congressional concern [in enacting Title III]." Gelbard v. United States, 408 U.S. 41, 48 (1972). Title III commands respect for conversational privacy by requiring resort to the same system of warrants and neutral and detached review that has historically been used to safeguard the integrity of the person and of property. See 18 U.S.C. § 2516 (requiring a warrant for electronic eavesdropping not within one of the statutory exclusions). Title III represents an attempt by Congress to establish a system of electronic surveillance subject to rigorous safeguards. It protects an individual from all forms of wiretapping except when the statute specifically provides otherwise.

B.

Greenville County claims that the law enforcement exception excuses its recording of plaintiffs' telephone calls. However, monitoring the judges' calls simply was not part of the"ordinary course" of the County's law enforcement duties. See 18 U.S.C. § 2510(5)(a)(ii).^* The County did not have an established policy of monitoring plaintiffs' calls. Indeed, the County contends that it recorded the judges only by mistake. Likewise, several of the individuals responsible for the installation and maintenance of the recording system testified that they knew that it was wrong to record the judges. Furthermore, the County has not suggested that it had any valid, law-enforcement related reason to record the judges. The judges were not under investigation and they were not suspected of breaking any law in the past. The County argues, however, that the pertinent question under the law enforcement exception is not whether the recorded conversations relate to the County's law enforcement duties, but whether the recording device itself is being used in the ordinary course of the County's duties. The County contends that it has satisfied the only relevant inquiry under the law enforcement exception: namely, it has shown that it installed the recording device in the Detention Center for a legitimate law enforcement purpose. The County maintains that the fact that the system innocently captured some additional conversations is irrelevant.

While the law enforcement exception is indeed generous in scope, the County's argument proves too much. The law enforcement exception does not authorize all conversations to be recorded by a wiretapping device so long as the device captured some conversations in the ordinary course of a law enforcement officer's duties. Rather, the law enforcement exception specifically focuses on whether the device is "being used . . . by an investigative or law enforcement officer in the ordinary course of his duties." 18 U.S.C. § 2510(5)(a)(ii) (emphasis added). Under the exception, some uses of the recording device are excused, while other uses are not. Thus, the incidental recording of guards' personal...