Tapley v. Collins

• Decision Date: 26 March 1999
• Docket Number: No. CV 698-38.,CV 698-38.
• Citation: 41 F.Supp.2d 1366
• Parties: Vickey Horton TAPLEY, Plaintiff, v. Darrell COLLINS, William Torrance, Ronnie Dixon, and the City of Vidalia, Georgia Defendants.
• Court: U.S. District Court — Southern District of Georgia

Page 1366

41 F.Supp.2d 1366

Vickey Horton TAPLEY, Plaintiff, v. Darrell COLLINS, William Torrance, Ronnie Dixon, and the City of Vidalia, Georgia Defendants.

No. CV 698-38.

United States District Court, S.D. Georgia, Statesboro Division.

March 26, 1999.

Robert P. Killian, Killian & Boyd, PC, Brunswick, GA, for Vickey Horton Tapley, plaintiffs.

Mary Mendel Katz, Chambless, Higdon & Carson, LLP, Thomas F. Richardson, Chambless, Higdon & Carson, Macon, GA, for Darrell Collins, William Torrance, Ronnie Dixon, The City of Vidalia, Georgia, defendants.

ORDER

EDENFIELD, District Judge.

I. INTRODUCTION

In this highly contentious case, see doc. # 50; # 57, exh. A-D, plaintiff Vickey Horton Tapley alleges that Vidalia, Georgia police chief Darrell Collins used an open air scanner to eavesdrop on three of her cordless telephone conversations. Doc. # 1 ¶¶ 9-15; # 33 ¶ 7. A Georgia Bureau of Investigation (GBI) agent, Tapley further alleges that Collins subsequently disclosed summaries of her conversations to others so he could interfere with her employment and inflict emotional distress. Doc. # 1 ¶¶ 16-18; # 33 ¶ 7.

There is no dispute that Collins disclosed the substance of the conversations to Vidalia's city manager, William Torrance, and its mayor, Ronnie Dixon. Both Torrance and Dixon, Tapley asserts, then joined Collins in discussing the conversations with her GBI supervisor. Id. The supervisor thereafter excluded Tapley from participating in Vidalia-area GBI investigations. Id.

Therefore, Tapley concludes, the chief, manager, mayor and the City of Vidalia violated her (a) telephone privacy rights guaranteed by 18 U.S.C. § 2510 et seq.; and (b) civil rights, as redressable under 42 U.S.C. § 1983. Doc. # 1 ¶¶ 19-32, 38-41. Plaintiff also raises an emotional distress claim. Id. ¶¶ 23, 37. Finally, she moves for partial summary judgment and to partially quash a subpoena. Doc. ## 14, 22. Defendants oppose those motions and move for complete summary judgment.¹ Doc. # 24.

II. BACKGROUND

Collins, who lives just 200 feet away from Tapley, doc. # 26 ¶ 7, owns an electronic scanner. Collins dep. at 5-6. One evening in November, 1997, the scanner — randomly set to no particular channel — intercepted a cordless telephone conversation between Tapley and Glen Meeks, a retired GBI agent and Tapley's mentor. Collins dep. at 5-8; Tapley dep., exh. 3 at 2.

Collins recognized both Tapley's and Meeks's voices and continued listening because "[Tapley] was talking about me...." Collins dep. at 9, 11. He then "pressed a `hold button' to prevent the [scanner] from scanning off that frequency," doc. # 28 ¶ 3, and later that evening captured two more Tapley telephone conversations about him. Collins dep. at 9-10. He took notes on all three calls, then typed them up on his computer. Id. at 12.

Collins's ears were especially attuned to Tapley's words because prior to that night he learned from Bobby Young, one of his police officers, that Tapley had approached Young's wife about a sting operation targeting Torrance. Collins dep. at 28, 30-31; Torrance dep. at 33; doc. # 45 at 2. Concluding that Tapley's efforts were not bona fide, Collins informed Torrance about them. Collins dep. at 31-32; see also id. at 34 ("I just told [Torrance] that Bobby had information that [Tapley] was trying [to] solicit someone that would try to do sex for drugs and try to target him"); see also Torrance dep. at 27-28, 32.²

After listening to Tapley's conversations, Collins called Torrance later that evening and disclosed to him the substance of what he intercepted. Torrance dep. at 10. He did so again the next morning in Torrance's office, where he brought his notes of the calls. Id. at 11-12. Torrance, in turn, called Greg L. Owen, Tapley's GBI supervisor, and disclosed to him the substance of the intercepted conversations. Id. at 15-16; Tapley dep., exh. 2 at 2. Owen replied that he would travel to Vidalia that day to meet with him. Torrance dep. at 13-14; see also Collins dep. at 34-36.

Torrance then informed Mayor Dixon about the upcoming meeting, Torrance dep. at 14, though Dixon did not learn of the conversations' contents until after the meeting began. Dixon dep. at 5-6, 8. When Owen met with Collins and Torrance, Dixon joined them. Torrance dep. at 20. At that time, Torrance expressed his concern over whether the Vidalia police department and the GBI could work harmoniously together. Id. at 15.³

Owen asked to see Collins's notes of Tapley's telephone conversations. Torrance dep. at 20. Collins complied. Tapley dep., exh. 2 at 4. After the men spoke about the nature of the conversations, Owen responded that he would exclude Tapley from future investigations within the Vidalia region. Collins dep. at 36; see also Torrance dep. at 21; Tapley dep., exh. 2 at 4. Owen also wondered if there might be "potential liability" with respect to Collins's telephone interception. Collins dep. at 38; see also Tapley dep., exh. 2 at 4.

III. ANALYSIS

A. Telephone Privacy Rights — Georgia Law

Generally, it is illegal for "A" to eavesdrop on a telephone conversation between "B" and "C." 18 U.S.C. § 2510 et. seq.; O.C.G.A. § 16-11-62; see generally Ann., Eavesdropping as violating right of privacy, 11 ALR3d 1296 § 3. In other words, third-party eavesdropping of a telephone conversation, absent statutory authorization, is prohibited.⁴

In that vein, Georgia's telephone privacy statutes arguably provide more privacy protections than their federal counterparts. O.C.G.A. § 16-11-62(4), for example, makes it unlawful for "[a]ny person intentionally and secretly to intercept by the use of any device, instrument, or apparatus the contents of a message sent by a telephone, telegraph, letter or by any other means of private communication." (Emphasis added); see also Granese v. State, 232 Ga. 193, 196, 206 S.E.2d 26 (1974) (Georgia's eavesdropping statute "is supplementary of the Federal statute").

In addition, O.C.G.A. § 16-11-62(6) extends that statute's reach to "[a]ny person [who] commit[s] any other acts of a nature similar to those set out in paragraphs (1) through (5) of this Code section which invade the privacy of another." (Emphasis added). Georgia law also expressly extends that prohibition to "cellular radio telephone conversations." O.C.G.A. § 16-11-66.1; see Tapley dep. at 78-79.

Eavesdropping victims can bring civil actions under Georgia's eavesdropping act. See Awbrey v. Great Atl. & Pac. Tea Co., 505 F.Supp. 604, 610 (N.D.Ga.1980) (citing what is now O.C.G.A. § 16-11-64(e)) ("A good faith reliance on a court order or legislative authorization shall constitute a complete defense to any civil or criminal action brought under this part or under any other law") (emphasis added).⁵ But Tapley's Complaint fails to expressly invoke it. See doc. # 1.

Ordinarily, neither would this Court. See U.S. v. Burkhalter, 966 F.Supp. 1223, 1225 n. 4 (S.D.Ga.1997) ("[i]t is not the province of this Court to raise issues on behalf of litigants before it"). However, Tapley's Court Interrogatory Response # 2 cites "[S]tate laws concerning invasion of privacy" and "[o]ther statutory and case law with respect to theories of tort and damages." Doc. # 2 at 2. And, "Count 2" of her Complaint expressly presents an "invasion of plaintiff's right to privacy" claim. Doc. # 1 at 6. Read together, these allegations present a claim which reasonably fits under the Georgia eavesdropping statute, thus fulfilling F.R.Civ.P. 8(a)'s requirements.⁶

B. Telephone Privacy Rights — Federal Law

Spetalieri v. Kavanaugh, 36 F.Supp.2d 92 (N.D.N.Y.1998) — a case published after the instant parties finished briefing — bears several parallels to this case. Spetalieri was head of the Kingston, N.Y., police department's narcotics bureau when he engaged in telephone conversations with a friend, Rachel Bloom. Id. at 93. Washington, a neighborhood watch program member, used a scanner to monitor police, fire and public works department communications. Id. One day her scanner intercepted Spetalieri and Bloom's telephone conversations. Id. Spetalieri used a corded telephone, but Bloom used a cordless. Id. During their conversations, Spetalieri frequently used profanity and disparaged blacks. Id.

Washington recognized Spetalieri's voice and decided "his speech was inappropriate, especially in light of his [official position]." Id. So, she "locked her scanner on the particular frequency that received [Spetalieri's] telephone conversation and tape recorded three telephone conversations...." Id. She subsequently handed her tape over to Clarke, a local NAACP branch president, who played it for other NAACP members before delivering it to the local district attorney's (DA's) investigator. Id. at 101.

However, Clarke did not advise the investigator of the tape's source. Id. She claimed that she found it in her mailbox and that "the recording came from conversations that had been inadvertently heard over someone's television." Id. The DA himself listened to a portion of the tape, then directed the investigator to copy and deliver it to the deputy chief of police. Id. The DA also recommended that Spetalieri be suspended or put on limited duty pending an internal investigation. Criminal cases in which Spetalieri was involved were then reconfigured to avoid using his testimony. Id.

The investigator next informed the police chief of the tape, who advised him to contact the city's mayor. Id. The mayor convened a police board, which ultimately recommended that Spetalieri be indefinitely suspended with pay. Id. Adverse media coverage followed. Id. at 101.

Spetalieri thereafter avoided disciplinary charges through negotiations which resulted in his retirement with financial compensation. Id. However, he subsequently brought suit under § 1983 and New York law against all involved in the tape's creation and transmission. Id. He later moved to amend his Complaint to add 18 U.S.C. § 2510-based causes of action. Id. The...