Walden v. City of Providence, R.I.

• Decision Date: 23 February 2010
• Docket Number: No. 08-2417.,No. 08-1536.,No. 08-1534.,No. 08-1535.,08-1534.,08-1535.,08-1536.,08-2417.
• Citation: 596 F.3d 38
• Parties: Thomas WALDEN, et al., Plaintiffs, Appellees, Cross-Appellants, v. CITY OF PROVIDENCE, RHODE ISLAND, by and through its Treasurer, Stephen Napolitano; David Cicilline, in his official capacity as Mayor and Acting Public Safety Commissioner for the City of Providence; Colonel Dean Esserman, in his official capacity as the Chief of Police for the City of Providence, Defendants, Appellants, Cross-Appellees. Thomas Walden, et al., Plaintiffs, Appellees, Cross-Appellants, v. Mary Lennon, individually and in her former official capacity as the Chief of Operations of the Communications Department, Defendant, Appellant, Cross-Appellee. Thomas Walden, et al., Plaintiffs, Appellees, Cross-Appellants, v. Manuel Vieira, individually and in his former official capacity as the Communications Director, Defendant, Appellant, Cross-Appellee. Thomas Walden, et al., Plaintiffs, Appellees, Cross-Appellants, v. City of Providence, et al., Defendants, Appellants, Cross-Appellees.
• Court: U.S. Court of Appeals — First Circuit

596 F.3d 38

Thomas WALDEN, et al., Plaintiffs, Appellees, Cross-Appellants, v. CITY OF PROVIDENCE, RHODE ISLAND, by and through its Treasurer, Stephen Napolitano; David Cicilline, in his official capacity as Mayor and Acting Public Safety Commissioner for the City of Providence; Colonel Dean Esserman, in his official capacity as the Chief of Police for the City of Providence, Defendants, Appellants, Cross-Appellees.

Thomas Walden, et al., Plaintiffs, Appellees, Cross-Appellants, v. Mary Lennon, individually and in her former official capacity as the Chief of Operations of the Communications Department, Defendant, Appellant, Cross-Appellee.

Thomas Walden, et al., Plaintiffs, Appellees, Cross-Appellants, v. Manuel Vieira, individually and in his former official capacity as the Communications Director, Defendant, Appellant, Cross-Appellee.

Thomas Walden, et al., Plaintiffs, Appellees, Cross-Appellants, v. City of Providence, et al., Defendants, Appellants, Cross-Appellees.

No. 08-1534.

No. 08-1535.

No. 08-1536.

No. 08-2417.

United States Court of Appeals, First Circuit.

Heard November 5, 2009.

Decided February 23, 2010.

Carolyn A. Mannis with whom Mark A. Fay was on brief for the appellees/cross-appellants.

Kevin F. McHugh, Senior Assistant City Solicitor, with whom Joseph M. Fernandez City Solicitor, and Michael A. Calise, Assistant City Solicitor, were on brief for the appellants/cross-appellees City of Providence, David N. Cicilline, and Dean Esserman.

Peter J. Comerford with whom Coia & Lepore, Ltd. was on brief for the appellant/cross-appellee Manuel Vieira.

Dean G. Robinson for the appellant/cross-appellee Mary Lennon.

Before LYNCH, Chief Judge, BOUDIN, Circuit Judge, and SAYLOR,^* District Judge.

LYNCH, Chief Judge.

In July 2004, two groups of current and former employees of the Police and Fire Departments of the City of Providence, Rhode Island, and their families, sued the City and several City employees in their personal capacities. An automatic recording system at the City's new Public Safety Complex ("Complex"), which housed the Police and Fire Departments, recorded all telephone calls into and out of the Complex from the time the telephone system began operating in May 2002 until February 2003.

Plaintiffs claimed these defendants were responsible for putting the recording system in place and that the recording of the calls violated their rights. Specifically, plaintiffs claimed the recordings violated their Fourth Amendment rights under the United States Constitution and Rhode Island's equivalent constitutional provision, Article I, Section 6; the federal wiretap statute, 18 U.S.C. § 2511 et seq.; Rhode Island's wiretap laws, R.I. Gen. Laws §§ 11-35-21, 12-5.1-13; and the state's privacy act, id. § 9-1-28.1. None of the defendants ever listened to any of the plaintiffs' calls, nor do plaintiffs claim otherwise.

The first group of plaintiffs, the "Walden plaintiffs," consists of 116 current and former employees of the Providence Fire Department who worked in the Complex and their family members. The second group, the "Chmura plaintiffs," consists of nineteen current and former civilian and sworn police officer employees of the Providence Police Department who worked in the Complex. The two plaintiff groups brought suit together and were represented by the same counsel.

The individual defendants were Manuel Vieira, Director of the City's Department of Communications until February 2003, and Mary Lennon, Chief of Operations in the Department of Communications until February 2003. Urbano Prignano, who was Chief of Police in Providence until his retirement on January 31, 2001, was dismissed from the case following the presentation of plaintiffs' evidence.¹

Following a twenty-six-day trial in February and March 2008, a jury found defendants liable, and plaintiffs were awarded over $1 million in damages and attorney's fees. The City, Vieira, and Lennon now appeal, challenging, inter alia, the district court's denial of their Fed.R.Civ.P. 50 motions for judgment as a matter of law on qualified immunity and municipal liability, as well as errors in the jury instructions and verdict forms.²

We find defendants are entitled to qualified immunity on some claims, vacate the jury verdicts, and direct entry of an order of dismissal with prejudice of all federal claims. As to the pendent state claims, the state wiretap act claims against the City are dismissed with prejudice. We dismiss without prejudice the verdict under the state wiretap and privacy act against Vieira and do the same as to the verdict under the privacy act against Lennon and the City.

I.

To the extent relevant to the issues on review, we review the facts of this case in the light most favorable to the jury's verdict. Cruz-Vargas v. R.J. Reynolds Tobacco Co., 348 F.3d 271, 275 (1st Cir.2003).

This case concerns the recording of calls at the City's new Public Safety Complex, which opened in 2002 to house parts of the City's Department of Public Safety. That department is run by a City Commissioner and contains the Police Department, headed by the Chief of Police; the Fire Department, headed by the Fire Chief; and the Department of Communications, headed by a Director. See City of Providence, Home Rule Charter ("Charter"), art. X, § 1001, available at http: //library8.municode.com/default-test/home.htm? infobase=14446 & doc_action=whatsnew. The Complex was built to provide office space for the Commissioner, the Chief of Police, and the Fire Chief, and their staffs, as well as to contain a police station and a fire station.

A. Policies and Practices as to Recording Calls before the Complex Opened

Before the Complex opened, the City already recorded calls made by public safety employees at the Emergency Operations Center ("EOC") as a matter of policy. The EOC served both the Police and Fire Departments but was physically separate from the police and fire stations around the City; it would route emergency calls to the relevant facility when required. Emergency calls and responses, calls about information from the National Crime Information Center and vehicle registry checks, and the talk-around channel on the police radio frequency were all recorded through a Dictaphone system at the EOC, covering fifteen to twenty lines in all. EOC employees were informed when they began their jobs that their conversations would be recorded and potentially reviewed.³ The EOC was not relocated to the new Complex.

Before the summer 2002 move to the Complex, the central Police and Fire Departments were located at two separate facilities within the City's old Public Safety Center. The telephone calls at both of these facilities were not recorded.

The old telephone system for the police operated differently than did the new system at the Complex. There was a central station area where a desk sergeant sat and where clerks answered telephone calls to the station. Some calls were routed from the City's EOC; others were emergency and nonemergency calls that came directly to the station. Some employees used the phone for law enforcement and administrative work and had their own telephone lines. Others used shared lines. Police Department employees also regularly used the phones for personal calls.

The setup at the firefighters' old facility was different. This facility contained telephones that could only be used to make calls between the different fire stations. Emergency calls were not routed to the station through the telephones but rather through an intercom system that broadcast to everyone at the station. There was also a separately installed telephone that the firefighters themselves arranged with the telephone company and paid for so that they could make personal calls while on duty at the station.

B. The New Public Safety Complex

Construction and planning for the new Complex began more than a year and a half before it opened. Among the intended features of the Complex was a state-of-the-art telephone system, with a number of functions, including call recording.

The specifications for this new telephone system, including plans for a recording system, were discussed during planning meetings. Members of the Police Department command staff attended these planning meetings, as did the Police Chief on occasion,⁴ representatives from the Fire Department, the Finance Department in City Hall, the Planning Committee, architects and engineers, and defendant Vieira, who had been Director of Communications since 1993. The meetings were held in the office of the Commissioner of Public Safety, John Partington, who sometimes attended as well.

It was decided at these meetings that the new Complex should include a telephone system capable of recording calls to and from the Police and Fire Departments. Attendees Vieira and Major Dennis Simoneau, the commander of all uniformed police officers, testified to several reasons for this decision. First, planners wanted a system that could record emergency calls that came in on lines other than 911 lines.⁵ Second, a recording system was needed to enable monitoring of how public safety employees were handling calls from the public, including on nonemergency lines, so that citizen complaints about public safety officials' behavior on these lines could be investigated. Third, the telephone system needed a cost-accounting feature to reduce costs and prevent employees from abusing their phones. Under the old system, public safety employees' personal long distance calls and calls to sex lines cost the City $5,000 to $6,000 a month. Fourth, the experience of New York City's public safety officers following the terrorist attacks on September 11, 2001, had underscored the desirability of a redundant system that could, in the event that a component of the communications system failed, maintain direct communication among police, fire, hospital, and emergency response agencies, including internal calls between lines on the...