Clements-Jeffrey v. City of Springfield, Case No. 3:09–cv–84.

• Decision Date: 22 August 2011
• Docket Number: Case No. 3:09–cv–84.
• Citation: 810 F.Supp.2d 857
• Parties: Susan CLEMENTS–JEFFREY, et al., Plaintiffs, v. CITY OF SPRINGFIELD, OHIO, et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

810 F.Supp.2d 857

Susan CLEMENTS–JEFFREY, et al., Plaintiffs,

v.CITY OF SPRINGFIELD, OHIO, et al., Defendants.

Case No. 3:09–cv–84.

United States District Court,S.D. Ohio,Western Division.

Aug. 22, 2011.

John Spenceley Marshall, Michael Garth Moore, Columbus, OH, for Plaintiffs.

Jerome Mark Strozdas, City of Springfield Law Director, Springfield, OH, William Charles Curley, James Quinn Dorgan, III, Weston Hurd LLP, Columbus, OH, Charles Joseph Faruki, Thomas Robert Kraemer, Lindsay Marie Potrafke, Faruki Ireland & Cox P.L.L., Dayton, OH, Jules L. Kabat, Marc A. Fenster, Nathan D. Meyer, Raquel Vallejo, Russ August & Kabat, Los Angeles, CA, for Defendants.

DECISION AND ENTRY SUSTAINING MOTION FOR PARTIAL SUMMARY JUDGMENT OF DEFENDANTS CITY OF SPRINGFIELD, GEOFFREY ASHWORTH AND NOEL LOPEZ (DOC. # 70); OVERRULING DEFENDANTS ABSOLUTE SOFTWARE, INC.'S AND KYLE MAGNUS' NOTION FOR SUMMARY JUDGMENT (DOC. # 78)

WALTER HERBERT RICE, District Judge.

Plaintiffs Susan Clements–Jeffrey and Carlton Smith filed suit against The City of Springfield, Springfield police officers Geoffrey Ashworth and Noel Lopez (collectively “the Springfield Defendants”), Absolute Software, Inc. (“Absolute”), and Absolute's theft recovery officer, Kyle Magnus (collectively “the Absolute Defendants”). In Count I of the Third Amended Complaint, Plaintiffs seek relief under 42 U.S.C. § 1983 against Ashworth and Lopez, alleging violations of the Fourth and Fourteenth Amendments. In Count II, Plaintiffs allege that Defendants violated the Electronic Communications Privacy Act (“ECPA”), 18 U.S.C. § 2511, and the Stored Communications Act (“SCA”), 18 U.S.C. § 2701. In Count III, Plaintiffs allege that Ashworth, Lopez, Magnus, and Absolute intentionally invaded their privacy.

This matter is currently before the Court on the Springfield Defendants' Motion for Partial Summary Judgment (Doc. # 70), and the Absolute Defendants' Motion for Summary Judgment (Doc. # 78).¹

I. Background and Procedural History ²

The Clark County School District purchased laptop computers, one of which was issued to a vocational student, Dusty Ray Powell. On April 9, 2008, when Powell was at the Springfield Public Library, someone stole that laptop. That same day, Powell reported the theft to the City of Springfield Police Department. Parr Aff. ¶¶ 2–4; Ex. to Springfield Defs.' Mot. Partial Summ. J.

Christopher Lebaroff, a ninth grade student at Kiefer Alternative School, subsequently purchased that same laptop for $40 at a bus station, suspecting that it was stolen. Lebaroff Dep. at 9–10, 21, 28. Lebaroff later approached Plaintiff Susan Clements–Jeffrey, a long-term substitute teacher at Kiefer, and offered to sell her the laptop for $60. Clements–Jeffrey Dep. at 72, 74. He told her that he no longer needed it because his aunt and uncle had given him a new laptop. Id. at 72. He also told her that his parents had given him permission to sell it. Id. at 82–83. Lebaroff informed her that the laptop was currently “messed up” and inoperable, but that Albert Apple, another Kiefer teacher, was trying to fix it. Id. at 74–75. Clements–Jeffrey agreed to buy the laptop if Apple could repair it. Id. at 81.

Apple testified that Lebaroff told him that he had accidentally wiped the hard drive clean and could not reinstall the operating system because his aunt, who lived out of state, had the necessary discs. Apple Dep. at 25–28. Apple was able to reinstall the operating system using his own discs. He also reinstalled other software that was freely available. Id. at 44–45. After Apple repaired the computer, Lebaroff tried to rescind his offer to sell it, but Clements–Jeffrey insisted that he follow through with the deal. Clements–Jeffrey Dep. at 102–104. In June of 2008, Clements–Jeffrey paid Lebaroff for the laptop and took it home. Id. at 85.

Clements–Jeffrey, 52, was a widow. She had recently renewed a high school romance with Plaintiff Carlton “Butch” Smith, who lived in Boston. Because of the geographical distance separating them, they maintained their relationship largely through phone calls and the Internet. Smith Dep. at 15–17. They often exchanged sexually explicit images via webcams attached to their computers. They also exchanged sexually explicit email messages and instant messages. Id. at 19, 24. Plaintiffs believed that these communications were secure and private because their computers were password-protected. Id. at 85–87.

Unfortunately for Plaintiffs, this belief was unfounded. When the school district purchased the laptops, it also entered into a contract with Absolute Software, Inc., a theft recovery service. After Powell filed his police report, Jason Graver, an information technology employee for the school district, contacted Absolute. Graver provided Absolute with a copy of the police report and, on April 21, 2008, authorized Absolute to proceed with gathering information to try to identify the user of the stolen laptop. Graver Dep. at 9, 14.

According to Timothy Smail, Absolute's manager of forensic and investigative services, the laptops were equipped with “LoJack for Laptops,” a combination of hardware and software, that enabled Absolute to track stolen laptops. Smail Dep. at 16–22. Once Graver gave permission, Absolute activated a “silent alarm,” in essence telling the laptop that it had been stolen. The stolen laptop was directed to report its IP address to Absolute the next time the laptop was connected to the Internet. Id. at 37–38. Once the IP address was identified, Absolute would generally assist in obtaining a warrant subpoena, directing the Internet service provider to provide identifying information about the computer user. Id. at 85; Magnus Dep. at 74–75, 139.

Absolute also caused the stolen laptop to download certain software, allowing theft recovery officers to gain remote access and to intercept email and other electronic communications sent to and from the stolen laptop. These interceptions would occur in “real time” without the user's knowledge. The officers could also capture screen shots of images from the computer's monitor. Smail Dep. at 41–43, 61–62, 67–68, 73–74. The software also recorded all keystrokes and stored them on Absolute's server until the next time the computer was connected to the Internet, at which point the information could be retrieved by a theft recovery officer. Id. at 55–56, 59–60.

Once Clements–Jeffrey used the stolen laptop to connect to the Internet on June 8, 2008, LoJack was able to capture her IP address and transmit it to Absolute. At this point, the file was assigned to Kyle Magnus, one of Absolute's theft recovery officers. Magnus Dep. at 56–58. On June 21 and 22, 2008, Magnus captured keystrokes from the laptop and monitored Clements–Jeffrey's visits to various websites. Id. at 81–82. On June 24, 2008, over a 30–second period, while monitoring webcam communications between Clements–Jeffrey and Smith in “real time,” Magnus took three screen shots of images appearing on the monitor. Id. at 106–110. In those screen shots, Clements–Jeffrey is not wearing any clothes and Smith is naked from the waist up. In one shot, Clements–Jeffrey has her legs spread apart. Id. at 112; Clements–Jeffrey Dep. at 171.

That same day, Magnus contacted Springfield police detective Geoffrey Ashworth to provide contact information for Susan Clements–Jeffrey, the person who he believed possessed the stolen laptop. Magnus Dep. at 119–20; Ashworth Dep. at 67. Magnus also sent Ashworth an introductory letter describing Absolute's business, Clements–Jeffrey's call log, and a warrant subpoena form. Ashworth Dep. at 65. In addition, Magnus sent copies of the communications that he had captured from the stolen laptop, along with the three sexually explicit screen shots. Id. at 69–72.

Ashworth then downloaded Clements–Jeffrey's driver's license information, including her address and her picture, and compared it to the information he had received from Magnus. Id. at 68–69. On June 25, 2008, Ashworth and Springfield Police Lieutenant Noel Lopez went to Clements–Jeffrey's apartment to question her about the laptop. Id. at 89. According to Clements–Jeffrey, they knocked on her door. She was on the phone with Smith and ignored them until she heard them say “this is the police,” and “we can get a warrant.” She stepped out onto her landing. They asked her if her name was Susan and whether she had a laptop in her apartment. When she answered affirmatively, they demanded to see her laptop computer. At that point, one of the officers allegedly held up some papers and told her that they had a warrant. Clements–Jeffrey Dep. at 113–20, 123.

She went back inside. The officers followed her and looked around her apartment. At their request, she brought her laptop from the bedroom to the kitchen. Id. at 127–35. The officers noticed that the serial number had been torn off. They asked her how she had acquired the laptop. She explained that she had purchased it from Lebaroff. She denied having any idea that it was stolen. Id. at 141–43. They allegedly told her that she was stupid, and that she was under arrest. Id. at 144–45. Ashworth and Lopez told her that the laptop had been stolen, and explained how they were able to trace the laptop to her using the LoJack software. Id. at 150. Ashworth then showed her the sexually explicit screen shots that Magnus had intercepted and sent to him. Id. at 147, 150, 171. Clements–Jeffrey claims that Ashworth laughed at her, called her stupid, and told her that she should have known better than to do that kind of stuff on the webcam. Id. at 152.

Ashworth and Lopez arrested Clements–Jeffrey for receiving stolen property. They handcuffed her and took her to the police station. Id. at 154. Ashworth allegedly continued to berate her about her use of the webcam, and again showed her the pictures and instant messages she had exchanged with Smith, calling them “disgusting.” Id. at 170–72. Although she was charged...