In re State Police Litigation, Civ. No. B-89-606 (TFGD).

CourtUnited States District Courts. 2nd Circuit. United States District Court (Connecticut)
Citation888 F. Supp. 1235
Docket NumberCiv. No. B-89-606 (TFGD).
PartiesIn re STATE POLICE LITIGATION.
Decision Date16 May 1995
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Vincent M. Musto, Christopher D. Bernard, James D. Horwitz, Koskoff, Koskoff & Bieder, P.C., Bridgeport, CT, for plaintiffs.

Carl A. Secola, Jr., Kinney, Sullivan & Secola, New Haven, CT, R. Bartley Halloran, Alfano, Halloran & Flynn, Hartford, CT, Christopher D. Bernard, Koskoff, Koskoff & Bieder, P.C., Bridgeport, CT, John R. Williams, the Law Offices of John R. Williams, Steven J. Errante, Hugh F. Keefe, Lynch, Traub, Keefe & Errante, New Haven, CT, Barry S. Zitser, Perakos, Kindl & Zitser, Jon S. Berk, Eileen McCarthy Geel, Christopher L. Slack, Gordon, Muir & Foley, Hartford, CT, Robert Nastri, Jr., Tinley, Nastri & Renehan, Waterbury, CT, and Lisa Marie Ferraro, Moore & O'Brien, Cheshire, CT, for consolidated plaintiffs.

Garrett M. Moore, Lisa Marie Ferraro, Moore & O'Brien, Cheshire, CT, William P. Yelenak, Carmody & Torrance, New Haven, CT, and M. Donald Cardwell, Cardwell, Cardwell & Smoragiewicz, Hartford, CT, for intervenors-plaintiffs.

Stephen P. Fogerty, Mark A. Newcity, Halloran & Sage, Hartford, CT, Joseph J. Patchen, Shapiro & Greenspan, New Haven, CT, Mary P. Brigham, Waterbury, CT, Mark A. Pagani, Wethersfield, CT, Stephen Richard Sarnoski, Stephen J. O'Neill, Henri Alexandre, Atty. General's Office, Public Safety & Special Revenue, Hartford, CT, for defendants.

Stephen P. Fogerty, Halloran & Sage and R. Bartley Halloran, Alfano, Halloran & Flynn, Hartford, CT, for consolidated defendants.

John B. Hughes, U.S. Attorney's Office, New Haven, CT, for movant.

William Smith, Newtown, CT, pro se.

RULING ON PENDING MOTIONS

DALY, District Judge.

This case arose after the Connecticut State Police began a policy of automatically recording all calls made into and out of each State Police barracks in the State. The policy first received public attention in November 1989, leading to the filing of the several lawsuits consolidated in this action. The Court has certified a plaintiff class, composed of all persons who unknowingly made recorded calls into or out of State Police facilities between January 1, 1978 and November 9, 1989, as well as a subclass composed of current and former State Police employees who likewise participated in recorded communications in that period and who are not named as defendants. Plaintiffs and intervening plaintiffs1 claim that the recording of their conversations violated their constitutional and statutory rights under both federal and state law. The parties have conducted thorough discovery, and now file various dispositive motions.

BACKGROUND
A. Facts

Except as noted, the parties agree on the following material facts.

1. Overview

The Connecticut State Police is a Division of the Department of Public Safety, which, inter alia, provides police services to Bradley International Airport and the eighty-four towns in the State that do not have organized police departments. The Division is organized into three districts, each commanded by a District Major, and each district is divided into four troops, commanded by Troop Commanders holding captain's rank. Each troop, in turn, operates through a barracks at which all administrative functions are performed.2

Defendant Lester J. Forst (Forst) commanded the Division during the period in question, and he held the title of Commissioner and was the agency's sole political appointee. Defendant John Mulligan (Mulligan), the Executive Officer, acted as Forst's second-in-command with the rank of lieutenant colonel from May 26, 1981 to November 1989. Beneath Forst and Mulligan in the chain of command were the District Majors, who in turn supervised the Troop Commanders. The State Police also operates a telecommunications unit, which from June 1978 to November 1989 was commanded by defendant Ronald P. Mikulka (Mikulka), who held the ranks of Lieutenant and Captain during this period. The telecommunications unit also employed Dominic Console (Console), a civilian employee responsible for the management of the Message Center at the State Police headquarters in Hartford and, later, all State Police telecommunications.

2. The Telephone Recording Systems

The State Police first installed a recording machine on its telephone lines at the Message Center at Headquarters on April 24, 1972,3 and automatic taping systems were in place at each barracks by June 26, 1978. These recorders were intended to enable the State Police to record and, if necessary, play back incoming emergency calls from the public. This would occur, for example, if a dispatcher received a request for assistance in which an essential fact (e.g., a street address) remained unclear. The systems also were intended to assist in investigations of complaints made by the public against personnel, to establish the timing of complaints and responses for major investigations, and to provide a method of ensuring that troopers and dispatchers were handling calls properly. The recorders did not distinguish between incoming and outgoing calls.

The State Police initially sought to record all telephone lines available to the public, and all radio communications, except for the Troop Commanders' private lines and the lines used by confidential informants.4 Since the recorders had limited capacities, however, the Troop Commanders were authorized to determine the lines to be recorded in their respective barracks. The recorders operated automatically on designated lines, on which a caller would be placed by the computer in the Division's "Horizon" telephone system. The recorders employed two recording tapes, one for continuous recording and one for any necessary rewinding and listening. State Police Special Order 91-A, issued in 1979, directed each barracks to change the two tapes on each machine every twenty-four hours, and to retain all tapes for sixty days before erasure and reuse.

The pre-existing communications practices in the barracks affected the operations of the recording systems. Each barracks operated several local telephone lines to provide residents within their respective jurisdictions with toll-free access. Prior to state-wide implementation of the "911" system in 1989, therefore, all requests for both emergency and non-emergency police services to a given barracks were made on regular seven-digit numbers, and these numbers continued to be used by callers after the "911" system was installed. Troopers, arrestees and others used these lines to place outgoing calls, while intra-departmental calls usually were placed on "Centrex" lines.

The recorders were connected to the telephone lines of the relevant carriers, the Southern New England Telephone Company (SNET) and the Woodbury Telephone Company (Telephone Companies). The Telephone Companies did not supply the recorders, but instead connected the telephone lines to devices known as "demarcation punch blocks" at each barracks, which in turn were connected to the recorders. These devices, which were leased from the Telephone Companies, enabled the telephone system in each barracks to work equally well with or without the recorders running. The physical connection of individual lines at a punch block to a recorder in the barracks was not performed by the Telephone Companies, but was the responsibility of the State Police. In addition FCC regulations required the use of a coupler between the recorders and the telephone line, because the recorders were not FCC-approved. These couplers emitted beep tones at 15-second intervals, and the telephone lines could be recorded even if a coupler's beep tone was not functioning.

The 20-channel Dictalog recorders installed by the State Police in 1978 could not record all designated lines in all barracks. A May 1985 status report noted that many of these recorders were malfunctioning completely or were at various levels of function. The State Police decided to replace them, and received a budgetary allocation for five new Stancil recorders in 1986. These new recorders, each of which had a 40-channel taping capacity, were installed by the Division's service company at Troops B, C, I, and W, and at the Headquarters Message Center. The Stancil recorders were FCC-approved and did not require couplers to be connected to the telephone lines. Instead, these machines had built-in beep tone generator chips. The Division directed its service company to remove these chips during April and May 1988.5

Another internal survey of the recording system, completed on February 23, 1988, determined that several of the older Dictalog recorders had ceased to function and that the remaining Dictalog recorders were at various levels of repair. The State Police decided to purchase eight new 40 channel Dictalog recorders to replace the older Dictalog recorders at Troops A, D, E, F, G, H, K, and L. As with all prior purchases of telephone recorders, these machines were obtained through the normal state bidding process, which required the publication of requests for bids in major state newspapers. As of November 9, 1989 only one of these new Dictalog recorders had been installed, at Troop A. This recorder had beep tones.

Prior to December 1986 the State Police relied on the beep tones to notify State Police personnel and members of the public of the recording of telephone conversations. By 1986 some lines at various troops emitted beep tones but were not recorded, while some recorded lines did not have beep tones. Defendants further assert that the public was advised in local area telephone books that calls to police, fire and other emergency facilities could be recorded without the need for beep tones or permission of the caller. Defendants do not assert, however, that this notification applied to calls made from State Police facilities....

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