JUMBA BAKER v. CITY OF PITTSBURGH

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

COLLEEN JUMBA BAKER, et al,

Plaintiffs, Civil Action No. 2:24-cv-461

v. Hon. William S. Stickman IV

CITY OF PITTSBURGH, et al,

Defendants.

MEMORANDUM OPINION

WILLIAM S. STICKMAN IV, United States District Judge

Plaintiffs, Colleen Jumba Baker, Brittany Mercer, Matthew O’Brien, Jonathan Sharp,

Matthew Zuccher, Christopher Sedlak, and Devlyn Valencic Keller (collectively “Plaintiffs’’),

brought this action against the City of Pittsburgh (“the City”), Larry Scirotto (“Scirotto’’), Lee

Schmidt (“Schmidt”), and Matthew Lackner (“Lackner”) (collectively “Defendants”). (ECF No.

21). At Count I of Plaintiffs’ Amended Complaint, Plaintiffs allege that Defendants violated the

Wiretapping and Electronic Surveillance Control Act (“WESCA”) and Title III of the Omnibus

Crime Control and Safe Streets Act of 1968 (“federal Wiretap Act”). Ud. 34-44). At Count IT,

Plaintiffs allege that Defendants violated 42 U.S.C. § 1983 through the impingement of Plaintiffs’

statutory rights under the wiretap statutes as well as Plaintiffs’ constitutional rights under the

Fourth and Fourteenth Amendments. (/d. J 45-56). Lackner filed a motion to dismiss Plaintiffs’

claims under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), (ECF No. 26), and a

supporting brief, (ECF No. 27). Likewise, the City, Scirotto, and Schmidt filed a motion to dismiss

Plaintiffs’ claims, (ECF No. 32), and a supporting brief, (ECF No. 33). For the reasons articulated

below, the Court will grant the City, Scirotto, and Schmidt’s motion. The Court will grant in part

and deny in part Lackner’s motion. Specifically, the Court dismisses the Count II § 1983 official

capacity claims against Lackner, and the Count I statutory wiretap claims against Lackner in

relation to the alleged recording that occurred in Lackner’s office between Lackner and Plaintiff

Christopher Sedlak (“Sedlak”) on September 27, 2023. The rest of Plaintiffs’ claims against

Lackner survive Lackner’s motion to dismiss.

I. FACTUAL BACKGROUND

Plaintiffs are police officers employed by the City of Pittsburgh Bureau of Police (“PBP”’)

assigned to Zone 2. (ECF No. 21, 25-26). Defendants are the City of Pittsburgh, Chief of

Police Larry Scirotto, Director of Public Safety Lee Schmidt, and former Zone 2 Commander

Matthew Lackner. (Id. ۤ 19-23). In the early fall of 2023, Lackner was the highest-ranking police

officer stationed in Zone 2. Ud. § 23). Plaintiffs allege that from September 27, 2023, through

October 4, 2023, Lackner utilized body worn cameras (“BWCs”), owned by the City, to record

their private conversations. (Id. § 28). With one exception, all of the surveillance allegedly

occurred in unmarked police vehicles where Lackner was not present. One recording allegedly

occurred in Lackner’s office where Lackner was a direct party to the conversation. (ECF No. 21-

1, p.6).! Lackner allegedly made eleven separate recordings totaling approximately seventy-five

hours of footage. (/d at 5). Plaintiffs further allege that Lackner used the global positioning

system (“GPS”) component of the BWCs to track Plaintiffs’ locations. (ECF No. 21, § 28).

Plaintiffs were allegedly unaware that Lackner was utilizing the BWCs to surveil their

conversations and locations. (/d. J 30). Plaintiffs did not consent to such surveillance. (Ud. §

'Tn deciding a motion to dismiss, courts may consider exhibits attached to the complaint. Pension

Ben. Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993).

31-32). On October 5, 2023, when Lackner was confronted regarding his BWC surveillance,

Lackner allegedly claimed that he was a part of a confidential federal investigation into one of the

detectives. (ECF No. 21-1, p. 11). Lackner instructed PBP officers not to communicate with

anyone else regarding the purported federal investigation. (/d.). The federal investigation did not

exist. (/d.). Later that day, Lackner was placed on administrative leave, effective immediately.

(id.). As aresult of his actions, Lackner was charged by the Commonwealth of Pennsylvania with

four counts of [legal Use of Wire or Oral Communications in violation of 18 Pa. C.S. § 5703(1).

(ECF No. 21, § 37). Lackner subsequently entered the Allegheny County Accelerated

Rehabilitative Disposition Program (“ARD”) in relation to his criminal charges. □□□ {| 38).

Defendants moved to dismiss both counts of Plaintiffs’ Amended Complaint under Rules 12(b)(1)

and 12(b)(6). (ECF No. 27); (ECF No. 33).

Il. STANDARD OF REVIEW

A. Rule 12(b)Q)

Under Federal Rule of Civil Procedure (“Rule”) 12(b)(1), a court must grant a motion to

dismiss if there is a lack of subject matter jurisdiction. FED. R. Civ. P. 12(b)(1). A plaintiff bears

the burden of persuasion that federal jurisdiction is present. Saint Vincent Health Ctr. v. Shalala,

937 F. Supp. 496, 501 (W.D. Pa. 1995) (citing Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d

1406, 1409 (3d Cir. 1991)). The threshold to survive a motion to dismiss under Rule 12(b)(1) is

lower than that under Rule 12(b)(6). Lunderstadt v. Colafella, 886 F.2d 66, 70 (3d Cir. 1989).

This is because dismissal for lack of jurisdiction cannot be predicated on the mere probability that

a plaintiffs legal theories are false; a court will only dismiss for a lack of jurisdiction ifa plaintiff's

legal theories 1) are solely proffered to obtain federal jurisdiction but otherwise are immaterial, or

2) are “insubstantial on their face.” Growth Horizons, Inc. v. Del. Cnty., Pa., 983 F.2d 1277, 1280

(3d Cir. 1993) (quoting Bell v. Hood, 327 U.S. 678, 773, 776 (1946)). “A motion to dismiss for

want of standing is . . . properly brought pursuant to Rule 12(b)(1), because standing is a

jurisdictional matter.” Ballentine v. United States, 486 F.3d 806, 810 (3d Cir. 2007). A court lacks

jurisdiction if a plaintiff cannot establish Article III standing. See Davis, 824 F.3d at 346 (“Absent

Article III standing, a federal court does not have subject matter jurisdiction to address a plaintiff's

claims, and they must be dismissed.”’).

B. Rule 12(b)(6)

A motion to dismiss filed under Rule 12(b)(6) tests the legal sufficiency of the complaint.

Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). A plaintiff must allege sufficient facts that,

if accepted as true, state a claim for relief plausible on its face. See Bell Atl. Corp. v. Twombly,

550 U.S. 544, 555 (2007); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A court must

accept all well-pleaded factual allegations as true and view them in the light most favorable to a

plaintiff. See Doe v. Princeton Univ., 30 F 4th 335, 340 (3d Cir. 2022); see also Fowler v. UPMC

Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). Although a court must accept the allegations in the

complaint as true, it is “not compelled to accept unsupported conclusions and unwarranted

inferences, or a legal conclusion couched as a factual allegation.” Baraka v. McGreevey, 481 F.3d

187, 195 (3d Cir. 2007) (citations omitted).

The “plausibility” standard required for a complaint to survive a motion to dismiss is not

akin to a “probability” requirement but asks for more than sheer “possibility.” Iqbal, 556 U.S. at

678 (citing Twombly, 550 U.S. at 556). In other words, the complaint’s factual allegations must

be enough to raise a right to relief above the speculative level, on the assumption that all the

allegations are true even if doubtful in fact. Twombly, 550 U.S. at 555. Facial plausibility is

present when a plaintiff pleads factual content that allows the court to draw the reasonable

inference that a defendant is liable for the misconduct alleged. Iqbal, 556 U.S. at 678. Even if the

complaint’s well-pleaded facts lead to a plausible inference, that inference alone will not entitle a

plaintiff to relief. Jd. at 682. The complaint must support the inference with facts to plausibly

justify that inferential leap. Jd.

I. ANALYSIS

The Court begins by noting that Plaintiffs’ Amended Complaint does the bare minimum to

comply with the requirements of Federal Rule of Civil Procedure 8 (“Rule 8”). Under Rule 8, a

pleading must contain “a short and plain statement of the claim showing that the pleader is entitled

to relief.” Fep. R. Civ. P. 8(a). Rule 8(d)(1) provides that each allegation in a pleading “must be

simple, concise, and direct.” FED. R. Civ. P. 8(d)(1). The purpose of Rule 8 is to prevent

complaints that are ambiguous or vague so as to impede the defendant’s ability to form a

responsive pleading. See Schaedler v. Reading Eagle Publications, Inc., 370 F.2d 795, 798 (3d.

Cir. 1967). While the pleading requirements of Rule 8 are liberally construed, courts have

consistently held that disorganized and highly repetitive complaints fail to satisfy Rule 8. See

Parker y. Learn the Skills Corp., No. 03-6936, 2004 WL 2384993, at *2 (E.D. Pa. October 25,

2004) (stating that while excessive length alone is not a sufficient reason to dismiss a complaint,

when accompanied by a lack of clarity, a dismissal is proper); Burton v. Peartree, 326 F. Supp.

755, 758-59 (E.D. Pa. 1971) (holding that “a lengthy rambling complaint which contains little

more than demands, charges and conclusions . . . is not a short and plain statement of the case and

flagrantly violates” Rule 8). Liberally construing the requirements of Rule 8, the Court will not

dismiss Plaintiffs’ Amended Complaint in its entirety. However, the Court notes that the Amended

Complaint is far from the model of clarity. It is disorganized, lacks detail, and is generally

unartfully pled. The Court should not be forced to engage in mental gymnastics to discern

Plaintiffs’ claims. In the Court’s estimation, at Count I, Plaintiffs allege that Defendants violated

WESCA and the federal Wiretap Act by engaging in unauthorized interception of Plaintiffs’ oral

communications. (ECF No. 21, §§ 34-44). Plaintiffs allege that the City, Scirotto, and Schmidt

are vicariously liable for the acts of Lackner, their representative. Ud 4] 43-44). At Count II,

Plaintiffs allege that Defendants violated 42 U.S.C. § 1983 by violating Plaintiffs’ Fourth and

Fourteenth Amendment rights under the United States Constitution as well as the wiretap statutes.

(Id. {| 45-56).

A. Count One — Statutory Claims under WESCA and the Federal Wiretap Act

1. Article I Standing

i. Injury in Fact

Defendants contend that Plaintiffs do not have Article [I standing to bring their claims

under the federal Wiretap Act and WESCA because Plaintiffs did not plead that they suffered any

concrete injury. (ECF No. 27, pp. 25-26); (ECF No. 33, pp. 5-9). More specifically, Defendants

assert that Spokeo, Inc. v. Robins, 578 U.S. 330 (2016) and TransUnion LLC v. Ramirez, 594 U.S.

413 (2021) direct the Court to hold that Plaintiffs did not suffer an injury in fact because Plaintiffs

did not allege that the electronic interceptions revealed private information, caused Plaintiffs

economic harm, or affected any other part of Plaintiffs’ lives. (Ud). According to Defendants,

Lackner’s alleged surreptitious interception of Plaintiffs’ private conversations did not constitute

a concrete harm as required by Article III. (/d.). Plaintiffs respond that they suffered an injury

sufficient to confer Article III standing since, in addition to the wiretap violations, their Fourth and

Fourteenth Amendment rights were allegedly violated, and Plaintiffs were “victims of bad acts.”

(ECF No. 35, pp. 16-18). The Court holds that Plaintiffs have adequately alleged that they suffered

an injury in fact sufficient to establish Article III standing at this early stage of the proceedings.

Article III standing is conferred when a plaintiff has (1) suffered an injury in fact, (2) that

is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed

by a favorable judicial decision. Mielo v. Steak ’n Shake Operations, Inc., 897 F.3d 467, 478 (3d

Cir. 2018). The plaintiff bears the burden of showing the required elements. /d. (internal citations

omitted). The parties primarily dispute the first element of standing —whether Plaintiffs have

suffered an injury in fact. More specifically, the parties dispute whether Plaintiffs suffered a

concrete harm. Defendants argue that merely being the victim of a statutory wiretap violation is

not a concrete harm under Spokeo. (ECF No. 33, p. 7).

“The primary element of standing is injury in fact, and it is actually a conglomerate of three

components.” Mielo, 897 F.3d at 478 (internal citations omitted). An injury in fact is shown when

a plaintiff establishes that he or she suffered an invasion of a legally protected interest. Jd.) When

evaluating whether a plaintiff has suffered an invasion of a legally protected interest, the court

must separate its standing inquiry from any evaluation of the merits of the claim. Jd. at 478-79.

Additionally, the injury must be concrete and particularized, and actual or imminent——not merely

conjectural or hypothetical. Jd.

In Spokeo, the Supreme Court of the United States explained that “Congress’[s] role in

identifying and elevating intangible harms does not mean that a plaintiff automatically satisfies the

injury-in-fact requirement whenever a statute grants a person a statutory night and purports to

authorize that person to sue to vindicate that right.” Spokeo, 578 U.S. at 341. In evaluating

whether a harm qualifies as an injury in fact, Spokeo guides federal courts to inquire whether “an

alleged intangible harm has a close relationship to a harm that has traditionally been regarded as

providing a basis for a lawsuit in English or American courts.” Jd. Spokeo also directs federal

courts to look at Congress’s judgment, as it has the power to “elevat[e] to the status of legally

cognizable injuries concrete, de facto injuries that were previously inadequate in law.” Jd. (quoting

Lujan, 504 U.S. at 578) (internal quotation marks omitted).

Later, in TransUnion, the Supreme Court reinforced the notion that, although harder to

discern, intangible harms can qualify as concrete injuries under Article III, especially ones

traditionally recognized, such as “reputational harms, disclosure of private information, and

intrusion upon seclusion.” TransUnion, 594 U.S. at 425. The Court also emphasized that

Congress may not enact an injury into existence that otherwise would not exist. [d. at 426. While

“Congress’s views may be instructive,” TransUnion bolstered the Spokeo principle that “Article

III standing requires a concrete injury even in the context of a statutory violation.” Jd In

evaluating standing, the Supreme Court did not create such a high bar to Article III that it precludes

causes of action for statutory violations where harm is clearly defined by statute and conceptually

analogous to recognized harms. TransUnion instructs federal courts to filter out litigants who

allege intangible harms derived from bare procedural violations that are not “remotely harmful” in

a traditional sense. In the Court’s view, neither TransUnion nor Spokeo prevents Congress from

legislating enforceable statutory rights where the nature of the harm is akin to one traditionally

recognized by the law. Plaintiffs’ cause of action is clearly defined by WESCA and the federal

Wiretap Act. Thus, the issue in this case is whether having a private conversation surreptitiously

recorded is conceptually analogous to a recognized harm.

“Privacy torts have become ‘well-ensconced in the fabric of American law.’” In re: Google

Ine. Cookie Placement Consumer Priv. Litig., 934 F.3d 316, 325 (3d Cir. 2019) (quoting Jn re

Horizon Healthcare Servs. Inc. Data Breach Litig., 846 F.3d 625, 638 Gd Cir. 2017)). One

variation of invasion of privacy is intrusion upon seclusion. At common law, intrusion upon

seclusion generally requires a plaintiff to show that the defendant intentionally intruded “upon the

solitude or seclusion of another or his private affairs or concerns,” and that such intrusion “would

be highly offensive to a reasonable person.” Farst v. AutoZone, Inc., 700 F. Supp. 3d 222, 229

(M.D. Pa. 2023). Of particular relevance to the instant case, the Second Restatement of Torts

recognizes that intrusion upon seclusion may occur through “use of the defendant’s senses, with

or without mechanical aids, to oversee or overhear the plaintiff's private affairs, as by . . . tapping

his telephone wires.” RESTATEMENT (SECOND) OF ToRTS § 652B cmt. b (AM. L. INST. 1977).2 The

common law tort of intrusion upon seclusion, the federal Wiretap Act, and WESCA address the

same underlying interest: keeping one’s private conversations private. As alleged, Lackner

sutreptitiously recorded around seventy-five hours of Plaintiffs’ conversations without Plaintiffs’

knowledge or consent. Plaintiffs contend that this intrusion violated their expectation of privacy,

albeit in the workplace, in a manner that could be highly offensive to a reasonable person.

Plaintiffs’ have alleged a harm to their privacy interests.

Defendants contend that Plaintiffs’ alleged harm cannot be concrete because none of the

information was highly sensitive or resulted in adverse consequences to Plaintiffs. (ECF No. 27,

pp. 25-26); (ECF No. 33, pp. 5-9). But intrusion upon seclusion does not require public disclosure

of private information or adverse consequences to the person whose right to privacy was invaded.

Therefore, at this early stage of the proceedings, Plaintiffs have adequately alleged that they

suffered a harm with a close relationship to intrusion upon seclusion, a harm associated with the

historically recognized right to privacy.

* It is not necessary for a plaintiff asserting a claim to plead the elements of a traditional cause of

action. Petris v. Sportsman’s Warehouse, Inc., No. 2:23-CV-1867, 2024 WL 2817530, at *6

(W.D. Pa. June 3, 2024). It is only necessary that an analogous harm exists. Jd.

ii. Causation

The City, Scirotto, and Schmidt further argue that there is “a break in the chain of causation

between the Plaintiffs’ injuries and the City Defendants.” (ECF No. 38, p. 4). They argue that

since Plaintiffs failed to plead that Plaintiffs’ injuries are traceable to the City, Scirotto, and

Schmidt’s conduct, Plaintiffs have not plausibly alleged the causation element of standing. (/d. at

4-5), The Court agrees and holds that Plaintiffs have not established standing with respect to the

City, Scirotto, and Schmidt in relation to Count I of the Amended Complaint.

As discussed above, the “irreducible constitutional minimum” of Article II] standing

consists of three elements — all of which must be met for a plaintiff to establish standing. Toll

Bros. v. Twp. of Readington, 555 F.3d 131, 137-38 (3d Cir. 2009). The second requirement for

Article III standing is “traceability.” /d. at 142 (internal citations omitted). “Ifthe injury-in-fact

prong focuses on whether the plaintiff suffered harm, then the traceability prong focuses on who

inflicted that harm. The plaintiff must establish that the defendant’s challenged actions, and not

the actions of some third party, caused the plaintiffs injury.” Jd This causal connection need not

be as close as the proximate causation needed to succeed on the merits of a tort claim. Pub. Interest

Research Group of N.J., Inc. v. Powell Duffryn Terminals Inc., 913 F.2d 64, 72 (3d Cir. 1990).

Rather, “an indirect causal relationship will suffice,” so long as there is “a fairly traceable

connection between the alleged injury in fact and the alleged conduct of the defendant.” Toll Bros.,

555 F.3d at 142 (internal citations omitted).

In Count I, Plaintiffs plausibly allege that they suffered an injury in fact that was fairly

traceable to Lackner’s conduct. However, they did not allege that the City, Scirotto, or Schmidt

took direct action to violate WESCA or the federal Wiretap Act. Instead, Plaintiffs argue that the

City, Scirotto, and Schmidt are liable for Lackner’s misconduct through a theory of vicarious

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liability. (See ECF No. 21, 43 (“Based upon the agency relationship, City of Pittsburgh, Larry

Scirotto, Lee Schmidt and Matthew Lackner are vicariously liable for the acts and/or admissions

of its representatives.”’).

Assuming for the sake of this analysis that municipalities and government employees can

be vicariously liable for violations of WESCA and the federal Wiretap Act, Plaintiffs failed to

plausibly allege and plead theory. “It is well established that traditional vicarious liability rules

ordinarily make principals or employers vicariously liable for acts of their agents or employees in

the scope of their authority or employment.” Meyer v. Holley, 537 U.S. 280, 285 (2003) (emphasis

added). Plaintiffs did not plead any facts showing that Lackner’s acts were within the scope of his

employment. Lackner’s actions violated the City’s BWC policy. PBP’s BWC policy states that

(1) “Members shall not use BWC equipment unless acting in the performance of their official

duties,” (2) “Members shall not intentionally obscure the view of their BWC,” (3) “[t]he BWC

shall not be utilized off-body as a surveillance tool,” and (4) Member[s] shall inform all individuals

identifiably present as soon as reasonably practical, that their oral/video communications will or

have been intercepted and recorded.” (ECF No. 32-1, p. 3). Plaintiffs allege that Lackner hid

BWCs in unmarked patrol vehicles without their knowledge to surreptitiously record their private

conversations. These alleged actions are in direct violation of the above-mentioned provisions of

PBP’s BWC policies. The Court may consider PBP’s BWC policy, even though it is extraneous

to the complaint, because Plaintiffs explicitly relied on the policy in their Amended Complaint.

See Inre Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997) (stating that a

district court may consider a document that a defendant attaches as an exhibit to a motion to

dismiss if the plaintiff's claims are based on the document). Plaintiffs have not alleged that

Lackner created the recordings in the performance of his official duties. Further, Plaintiffs have

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not pled any facts showing that the City directed or expected Lackner to perform surreptitious

surveillance of his employees, nor is there any allegation that the recordings were actuated with

the intent to serve the City. Plaintiffs’ conclusory statements are not sufficient to plausibly allege

that the City, Scirotto, and Schmidt caused Plaintiffs’ injuries—either directly or through a theory

of vicarious liability. Thus, Plaintiffs failed to properly plead the second element of standing,

traceability, in relation to these Defendants. Since Plaintiffs cannot establish standing with respect

to the City, Scirotto, and Schmidt in relation to Count I, Count I is dismissed with prejudice as

asserted against these Defendants.? Count I will only proceed as to Lackner.

2. The Direct Party Consent Exception Under the Federal Wiretap Act

Lackner argues that he did not violate the federal Wiretap Act when he allegedly used his

BWC to record a conversation in his office between himself and Sedlak on September 27, 2023,

because of the federal Wiretap Act’s direct party exception. (ECF No. 27, p. 27). The Court agrees

3 The Court will dismiss Count I as asserted against the City, Scirotto, and Schmidt with prejudice

because any amendment by Plaintiffs would be futile in the eyes of the Court. See In re Burlington

Coat Factory Sec. Litig., 114 F.3d 1410, 1434 (d Cir. 1997) (holding that a court may deny leave

to amend for reasons such as undue delay, bad faith, dilatory motive, prejudice, and futility). “An

amendment is futile if it merely restates the same facts as the original complaint in different terms,

reasserts a claim on which the court previously ruled, fails to state a legal theory, or could not

withstand a motion to dismiss.” 3 JAMES WM. MOorRE ET AL., MOORE’S FEDERAL PRACTICE §

15.15 (3d ed. 2021). Based upon the facts previously pled by Plaintiffs in their first complaint,

(ECF No. 1), and the allegations contained in the Amended Complaint (ECF No. 21); (ECF No.

21-1), there is no possible factual basis sufficient to establish “a fairly traceable connection

between the alleged injury in fact and the alleged conduct” of the City, Scirotto, and Schmidt. See

Toll Bros., 555 F.3d at 142 (internal citations omitted). Thus, any amendment would once again

fail to establish standing with respect to the City, Scirotto, and Schmidt in relation to Count I of

the Amended Complaint.

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with Lackner and dismisses any portion of Count I under the federal Wiretap Act against Lackner

that relates to the in-office conversation between Lackner and Sedlak.‘

Section 2511 of the federal Wiretap Act prohibits individuals from intentionally

intercepting any wire, oral, or electronic communication. 18 U.S.C. § 2511; Bartnicki v. Vopper,

532 U.S. 514, 523 (2001). Any individual whose communication is “intercepted, disclosed, or

intentionally used” can bring a civil action for injunctive relief and monetary damages. 18 U.S.C.

§ 2520; Kwok Sze v. Pui-Ling Pang, 529 F. App’x 196, 199 (3d Cir. 2013). A plaintiff pleads a

prima facie case under the federal Wiretap Act by alleging that the defendant: “(1) intentionally

(2) intercepted, endeavored to intercept, or procured another person to intercept (3) the contents of

(4) any wire, electronic, or oral communication, (5) using a device.” Vasko v. Twyford, No. CV

16-197, 2016 WL 3522038, at *3 (W.D. Pa. June 28, 2016) (citing Jn re Nickelodeon Consumer

Privacy Litig., 827 F.3d 262, 274 (3d Cir. 2016) (internal citations omitted)).

Plaintiffs allege that one of the eleven recordings at issue occurred in Lackner’s office

when Lackner recorded a conversation between himself and Sedlak. (ECF No. 21-1, p. 6).

Lackner argues that he is not liable under the federal Wiretap Act for this alleged recording because

he was a direct party to the conversation. (ECF No. 36, pp. 27-28).

One-party consent is a viable defense under the federal Wiretap Act. Under 18 U.S.C. §

2511(2)(c), “[i]t shall not be unlawful [] for a person acting under color of law to intercept a wire,

oral, or electronic communication, where such person is a party to the communication or one of

the parties to the communication has given prior consent to such interception.” 18 U.S.C. §

2511(2)(c). In other words, the federal Wiretap Act is not violated if the interceptor, acting under

Lackner also argued that Sedlak did not have a reasonable expectation of privacy in this

conversation. (ECF No. 27, pp. 22-24). The Court addresses this below in section C dealing with

Plaintiffs’ reasonable expectation of privacy in the recorded conversations.

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the color of law, is a party to the communication. Here, Plaintiffs alleged that “[a]t all times

material hereto,” Lackner was “acting under the color of state law.”> (ECF No. 21, 422). Further,

18 U.S.C. § 2511(2)(d) states that:

It shall not be unlawful for a person not acting under color of law to intercept a

wire, oral, or electronic communication where such person is a party to the

communication or where one of the parties to the communication has given prior

consent to such interception unless such communication is intercepted for the

purpose of committing any criminal or tortious act in violation of the Constitution

or laws of the United States or of any State.

18 U.S.C. § 2511(2)(d). Whereas a person acting under color of law is always entitled to invoke

one-party consent as a defense, that defense does not apply if a person not acting under color of

law intercepts a communication “for the purpose of committing any criminal or tortious act.” 18

U.S.C. § 2511(2)(d). Plaintiffs did not plead any allegations or facts indicating that Lackner

intercepted the recorded conversations for the purpose of committing any criminal or tortious acts.°

Thus, there is no reason for the Court to analyze whether Lackner was acting under the color of

law for the purposes of the federal Wiretap Act.

In connection to the recording in Lackner’s office, Plaintiffs fail to plead a plausible claim

for relief under the federal Wiretap Act. Lackner was a party to the conversation between himself

and Sedlak. As set forth above, the federal Wiretap Act is not violated when one party to the

conversation consents to the interception. Lackner consented to the interception when he recorded

the conversation. Thus, the Court will grant Lackner’s motion to dismiss Plaintiffs’ federal

5 At this time, Lackner does not dispute that he was acting under the color of law when he allegedly

made the surreptitious recordings. Thus, the Court expresses no view on this issue.

For the exception to apply, the criminal or tortious act must be something other than the allegedly

unlawful interception. Nickelodeon, 827 F.3d at 276 (recognizing that the “tortious act” exception

only applies “when the offender intercepted the communication for the purpose of a tortious or

criminal act that is independent of the intentional act of recording”).

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Wiretap Act claim related to the alleged recording that occurred in Lackner’s office on September

27, 2023.’ The direct party exception applies to this specific recording.

B. Count Two — 42 U.S.C. § 1983

1. Official Capacity Claims Against Lackner

Plaintiffs sued Lackner in his official and individual capacity under § 1983. (ECF No. 21,

22). Lackner contends that the claims against him in his official capacity should be dismissed

as redundant.®

When a government entity receives notice and an opportunity to respond, “an official-

capacity suit is, in all respects other than name, to be treated as a suit against the entity.” Kentucky

v. Graham, 473 U.S. 159, 166 (1985). Based on this holding, several courts in the Western and

Middle Districts of Pennsylvania have dismissed official capacity § 1983 claims against

government officials when they repeated claims against the government entity. See Snatchko v.

Peters Twp., No. 2:12-1179, 2012 WL 6761369, at *11 (W.D. Pa. Dec. 28, 2012) (granting

defendant’s motion to dismiss because “[s]uch a suit is properly treated as a suit against the

entity”); Taylor v. Pilewski, No. 08-611, 2008 WL 4861446, at *2 (W.D. Pa. Nov. 7, 2008)

(dismissing claims against a prison warden in his official capacity because they were “redundant

7 There is no direct party exception under WESCA. Popa v. Harriet Carter Gifts, Inc., 52 F.4th

121, 128 (3d Cir. 2022). Thus, Plaintiffs’ WESCA claim in relation to this recording is not affected

by Lackner’s consent or presence.

8 Lackner raised the argument regarding Plaintiffs’ Count II official capacity claims in his brief in

support of his motion to dismiss. (ECF No. 27, p. 21). Plaintiffs did not address this argument in

their brief in opposition to Lackner’s motion to dismiss. (ECF No. 35). Nor did Plaintiffs attempt

to defend the Count II official capacity claims against Lackner in any other manner. The Court

chose to analyze the Count II official capacity claims asserted against Lackner but notes that the

Court could have treated these claims as abandoned because Plaintiffs failed to address Lackner’s

motion to dismiss. See Lisowski v. Walmart Stores, Inc., 552 F. Supp. 3d 519, 526 n.4 (W.D. Pa.

2021) (stating that failure to respond to an argument advanced in support of a motion to dismiss

results in a waiver of the claim sought to be dismissed).

15

of the claims against the county”). Courts are not required to dismiss official capacity claims that

are redundant of claims against a government entity. However, a court may exercise its discretion

to dismiss official capacity claims that “unnecessarily clutter the case” and “are likely to be

confusing to a jury.” Hordych v. Borough of N. E., No. 10-16E, 2010 WL 1707735, at *8 (W.D.

Pa. Apr. 27, 2010); see also Link v. Wabash R. Co., 370 U.S. 626, 630-31 (1962) (stating that

courts have inherent authority to “manage their own affairs so as to achieve the orderly and

expeditious disposition of cases”). Since Plaintiffs’ redundant claims against Lackner

unnecessarily clutter the case, and Plaintiffs did not attempt to refute Lackner’s argument against

the claims, the Court will exercise its discretion and dismiss the official capacity § 1983 claims

against Lackner in Count II.

2. Fourteenth Amendment Claims

Lackner argues that Plaintiffs’ Fourteenth Amendment claims in Count I] against him must

be dismissed because the Fourth Amendment is the explicit source of protection for the

constitutional rights he allegedly violated. (ECF No. 27, pp. 11, 23). The Court concludes that

the Fourteenth Amendment related aspects of Count II will go forward to the extent explained

below.

“Section 1983 does not, by its own terms, create substantive rights; it provides only

remedies for deprivations of rights established elsewhere in the Constitution or federal laws.”

Kneipp vy. Tedder, 95 F.3d 1199, 1204 (3d Cir. 1996) (internal citations omitted). To establish a

claim under § 1983, the plaintiff must show that a person acting under color of law violated a right

secured by the Constitution or laws of the United States. Jd. When a constitutional claim is

covered by a specific constitutional provision, the claim is analyzed under the specific provision,

16

not under Fourteenth Amendment substantive due process. Graham v. Connor, 490 U.S. 386, 395

(1989).

The Fourth Amendment states: “[t]he right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . .

U.S. CONST. amend. 4. The Fourth Amendment’s protection extends beyond the sphere of

criminal investigations. Camara v. Mun. Court of City and County of San Francisco, 387 U.S.

523, 530 (1967). “The Amendment guarantees the privacy, dignity, and security of persons against

certain arbitrary and invasive acts by officers of the Government,” regardless of whether the

government actor is investigating crime or performing another function. Skinner v. Railway Lab.

Executives’ Assn., 489 U.S. 602, 613-14 (1989). Moreover, “[t]he Fourth Amendment applies []

when the Government acts in its capacity as an employer.” City of Ontario, Cal. v. Quon, 560

U.S. 746, 756 (2010) (citing Treasury Employees v. Von Raab, 489 U.S. 656, 665 (1989)).

Plaintiffs are alleging that Lackner, under the color of law, invaded their privacy by

surreptitiously recording their conversations without a valid warrant or exception to the warrant

requirement. Plaintiffs’ claims of illegal wiretapping in Count II should be analyzed under the

Fourth Amendment. The Fourth Amendment applies to the states through the Fourteenth

Amendment’s due process clause. See Mapp v. Ohio, 367 U.S. 643, 655 (1961). To the extent

that Plaintiffs invoke the Fourteenth Amendment’s due process clause as the provision which

makes the Fourth Amendment applicable to the states, they are correct. In this context, the

Fourteenth Amendment provides no different protections to Plaintiffs than those provided by the

Fourth Amendment. Jd. Because Plaintiffs’ Fourteenth Amendment claims are at least proper in

the sense discussed above, the Court denies Lackner’s motion to dismiss Plaintiffs’ Fourteenth

Amendment claims in Count II. Nevertheless, the Court notes that the Fourth Amendment is the

17

explicit source of the constitutional rights that Lackner allegedly violated. Thus, the Fourteenth

Amendment is only applicable to the extent that it applies the Fourth Amendment to the states.

There are no substantive Fourteenth Amendment due process claims at issue.

3. Claims Against the City, Scirotto, and Schmidt

The City, Scirotto, and Schmidt argue that the Court must dismiss Plaintiffs’ § 1983 claims

against them because (1) Plaintiffs’ general allegations of wrongdoing fail to support policy or

custom Monell claims; (2) Plaintiffs failed to identify a municipal policymaker that created a

policy or custom that allegedly violated their constitutional rights; (3) Lackner is not a policy

maker for purposes of a Monell claim; and (4) Scirotto and Schmidt did not create a policy or

custom that violated Plaintiffs’ constitutional rights. (ECF No. 33, pp. 13-20). Plaintiffs counter

that the PBP “had a policy authorizing and mandating the use of body worn cameras the purpose

of which was to provide police officers a means to record events, and, after the fact, afford

authorized individuals the opportunity to view events as recorded.” (ECF No. 37, p. 16). Plaintiffs

allege that this policy “lacked effective procedures to train, monitor, or oversee Matthew Lackner’s

conduct towards Plaintiffs.” (Ud. at 17). Thus, Plaintiffs argue that their complaint “allege[s]

municipal liability under the applicable standards.” (/d. at 19). The Court holds that Plaintiffs’ §

1983 claims, as pled against the City, Scirotto, and Schmidt, are improper and misplaced

respondeat superior claims. Thus, the Court will grant the City, Scirotto, and Schmidt’s motion to

dismiss Count II as asserted against them.

Municipal liability under § 1983 may not be proven under a respondeat superior theory of

liability but must be founded on evidence that the government itself supported a violation of

constitutional rights. Monell v. New York City Dep’t of Soc. Servs., 436 U.S. 658, 690 (1978).

Municipal liability exists only when execution of the municipality’s policy or custom inflicts the

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injury. Id. at 694. Not all state action rises to the level of a custom or policy. A policy is made

“when a decisionmaker possess[ing] final authority to establish municipal policy with respect to

the action issues a final proclamation, policy, or edict.” Kneipp, 95 F.3d at 1212 (internal citations

omitted). A custom is an act “that has not been formally approved by an appropriate

decisionmaker,” but that is “so widespread as to have the force of law.” Bd. of County Comm rs

of Bryan County, Okla. v. Brown, 520 U.S. 397, 404 (1997). When a plaintiff brings a complaint

against a municipality - commonly known as a “Monell claim” —the offending custom, policy, or

practice must be pled specifically in the complaint. McTernan vy. City of York, 564 F.3d 636, 658

(3d Cir. 2009) (“To satisfy the pleading standard, [the plaintiff] must identify a custom or policy

and specify what exactly that custom or policy was.”) (internal citations omitted). Factual

allegations must give notice not only “as to the alleged wrongdoing of the individual police

officers,” but also “as to the alleged policy and custom of the municipality at issue.” Muller v.

Bristol Twp., No. 09-1086, 2009 WL 3028949, at *4 (E.D. Pa. Sept. 17, 2009).

Once a plaintiff has pled that a specific policy or custom exists, he must then plausibly

allege that the unconstitutional conduct causally results from that policy or custom. There are

three situations where the acts of a government employee may be deemed to result from a policy

or custom of the governmental entity for whom the employee works, thereby rendering the entity

liable under § 1983. The first is where “the appropriate officer or entity promulgates a generally

applicable statement of policy and the subsequent act complained of is simply an implementation

of that policy.” Bryan County, 520 U.S. at 417. The second occurs where “no rule has been

announced as policy, but federal law has been violated by an act of the policymaker itself.” Jd.

Finally, a policy or custom may also exist where “the policymaker has failed to act affirmatively

at all, [though] the need to take some action to control the agents of the government ‘is so obvious,

19

and the inadequacy of existing practice so likely to result in the violation of constitutional rights,

that the policymaker can reasonably be said to have been deliberately indifferent to the need.’” Id.

at 417-18 (internal citations omitted). Thus, for a plaintiff to sufficiently allege municipal liability

under § 1983, he must plead facts to support a finding that a specific policy or custom caused the

alleged harm.

Count II of Plaintiffs’ Amended Complaint contains extraordinarily bare allegations. (See

ECF No. 21, ff 45-56). Plaintiffs allege that the City, Scirotto, Schmidt, and Lackner were

decisionmakers and policymakers “who established policies, procedures, customs, and/or

practices” acting under the color of law. (id. {J 46-48, 51). Plaintiffs further allege that the City

“had a policy authorizing and mandating” the use of BWCs and that Defendants were responsible

for having policies in place to “ensure that misconduct occurring within [PBP] regarding the use

of body worn camera[s] was identified, properly investigated, and appropriate action was taken to

protect the rights of individuals.” (d. §{{ 49-50). Finally, Plaintiffs allege:

52. At all times material hereto, the City of Pittsburgh City of Pittsburgh, Larry

Scirotto, and Lee Schmidt was or should have been aware that Matthew Lackner

utilized body worn cameras to video and audio record Plaintiffs along with utilizing

the GPS component of the body worn camera to track them without authorization

and the Plaintiffs’ consent.

53. The City of Pittsburgh’s policies, procedures, customs and practices, or lack

thereof, were maintained in deliberate indifference to action taken by their

subordinates.

54. The City of Pittsburgh’s policies, procedures, customs and practices, or lack

thereof, were a direct and proximate cause of Matthew Lackner’s actions described

herein and the damages that flow therefrom.

55. The City of Pittsburgh’s policies, procedures, customs and practices lacked

effective procedures to train, monitor or oversee Matthew Lackner’s conduct

towards Plaintiffs.

(Id. §§ 52-55). Based on the allegations in the Amended Complaint, it is difficult for the Court to

determine what theory of municipal liability Plaintiffs are alleging. Plaintiffs do not establish a

Monell claim based on either a policy or custom. Even a liberal reading of Plaintiffs’ complaint

20

compels the conclusion that Plaintiffs failed to adequately set forth sufficient factual allegations to

demonstrate a plausible claim for relief under the policy or custom theory of Monell liability.’ At

best, Plaintiffs’ Count II contains formulaic recitations of the legal standards under Monell. Ina

conclusory fashion, Plaintiffs allege that the City’s “policies, procedures, customs and practices,

or lack thereof, were a direct and proximate cause of Matthew Lackner’s actions.” (Ud. { 54).

Count II is speculative and predicated upon sweeping legal conclusions. Plaintiffs failed to allege

facts suggesting that the City, Scirotto, or Schmidt promulgated an official policy or maintained a

custom that caused the alleged deprivation of Plaintiffs’ constitutional rights. In sum, Plaintiffs

have not specified what custom or policy led to the violation of Plaintiffs’ rights as required for

this type of Monell claim.

Further, Plaintiffs have not plausibly pled that Lackner was a policymaker for purposes of

§ 1983 Monell liability. A municipality may be liable for the unconstitutional conduct of its

employee “when the individual has policy making authority rendering his or her behavior an act

of official government policy.” McGreevy v. Stroup, 413 F.3d 359, 367 (3d Cir. 2005). “Authority

to make municipal policy may be granted directly by a legislative enactment or may be delegated

by an official who possesses such authority.” Pembaur v. Cincinnati, 475 U.S. 469, 483 (1986).

Whether an official had final policymaking authority is a question of state law. Id.

In order to ascertain if an official has final policy-making authority, and can thus

bind the municipality by his conduct, a court must determine (1) whether, as a

° Even if Plaintiffs were proceeding under a policy-based Monell theory of liability, this theory is

undermined by PBP’s BWC policy which states that (1) “Members shall not use BWC equipment

unless acting in the performance of their official duties,” (2) “Members shall not intentionally

obscure the view of their BWC,” (3) “[t]he BWC shall not be utilized off-body as a surveillance

tool,” and (4) Member[s] shall inform all individuals identifiably present as soon as reasonably

practical, that their oral/video communications will or have been intercepted and recorded.” (ECF

No. 32-1, p. 3). Plaintiffs allege that Lackner hid BWCs in unmarked patrol vehicles without their

knowledge to surreptitiously record their private conversations. These alleged actions are in direct

violation of the above-mentioned provisions of PBP’s BWC policies.

21

matter of state law, the official is responsible for making policy in the particular

area of municipal business in question . . . and (2) whether the official's authority

to make policy in that area is final and unreviewable.

Hill v. Borough of Kutztown, 455 F.3d 225, 245-46 (3d Cir. 2006).

The United States Court of Appeals for the Third Circuit has previously held that police

officers may be municipal policymakers. See Keenan v. City of Phila., 983 F.2d 459, 468-69 (3d

Cir. 1992) (holding that a police commissioner was a policymaker for City of Philadelphia); Black

v. Stephens, 662 F.2d 181, 191 (3d Cir. 1981) (finding that a police chief was a policymaker for

City of Allentown). In both cases, however, the Third Circuit determined that the police officer

was a policymaker only after examining the officer’s responsibilities and decision-making

authority with respect to the conduct at issue. See Andrews v. City of Phila., 895 F.2d 1469, 1481

(3d Cir. 1990) (holding that a police commissioner acted as a policy maker when he promulgated

and disseminated a police training manual and courses on sexual harassment, and established an

Equal Employment Office to handle complaints of discrimination); Black, 662 F.2d at 191 (finding

that a police chief was a policymaker when he wrote and implemented official policy at issue, was

a member of the mayor’s cabinet, and established policies and procedures for entire police

department).

Plaintiffs have not pled any similar facts. Instead, Plaintiffs alleged that Lackner was the

highest-ranking police officer of PBP Zone 2 and that “[a]t all times material hereto . . . Lackner

w[as a] policy maker[] for the [PBP].” (ECF No. 21, 9 23, 47). While the issue of whether

Lackner is a policymaker is a legal rather than a factual question, that does not relieve Plaintiffs of

the obligation to plead facts supporting their conclusory allegation that Lackner was a

policymaker. See Santiago v. Warminster Twp., 629 F.3d 121, 135 n.11 (3d Cir. 2010). This is

especially true in a situation where Lackner is alleged to have violated PBP’s BWC policy. Given

22

Plaintiffs’ threadbare factual allegations, the Court holds that Plaintiffs did not plausibly plead that

Lackner was a policymaker for PBP or the City.

The Court next considers whether Plaintiffs properly alleged a “deliberate indifference” or

failure to train theory of Monell liability. A municipality’s failure to properly train its police

officers can amount to a custom that triggers liability under § 1983. See City of Canton v. Harris,

489 U.S. 378, 391 (1989). Such liability is reserved for when the failure to train demonstrates a

“deliberate indifference” to the constitutional rights of the municipality’s citizens. Jd. at 389. An

allegation that a training program is inadequate is insufficient. Jd. at 390. Instead, Plaintiffs must

“identify a failure to provide specific training that has a causal nexus with his or her injuries and .

. . demonstrate that the absence of that specific training can reasonably be said to reflect a

deliberate indifference to whether the alleged constitutional deprivations occurred.” Reitz v. Cnty.

of Bucks, 125 F.3d 139, 144 (3d Cir. 1997). “[D]eliberate indifference may be established when a

policymaker has knowledge of a ‘pattern of similar constitutional violations by untrained

employees’ but takes no action to augment or alter the municipality’s employee training programs

accordingly.” Grandizio v. Smith, No. CIV. 14-3868, 2015 WL 58403, at *5 (D.N.J. Jan. 5, 2015)

(internal citations omitted).

Plaintiffs alleged that the City’s “policies, procedures, customs or practices, or lack thereof,

were maintained in deliberate indifference to action taken by their subordinates.” (ECF No. 21, □

53). Plaintiffs did not identify a specific deficiency in PBP training that had a causal connection

with Lackner’s actions. Plaintiffs did not plead that the City, Scirotto, or Schmidt knew about past

BWC policy violations and took no action to augment PBP’s training accordingly. In fact,

Plaintiffs did not plead any pattern of similar constitutional violations. Moreover, the facts alleged

in Plaintiffs’ Amended Complaint undermine any allegation that the City, Scirotto, and Schmidt

23

acted with deliberate indifference to Lackner’s actions. Lackner’s actions were reported to a

supervisor, Lieutenant Reed, on October 5, 2023. (ECF No. 21-1, p. 10). Lackner was placed on

administrative leave, effective immediately, by 1:00 p.m. that day. Ud). Lackner was charged

with four felony counts relating to the conduct at issue on February 23, 2024. (ECF No. 21-1).

Thus, facts pled by Plaintiffs establish that policymakers within the City acted to address Lackner’s

actions without delay. City officials did not act with deliberate indifference to Lackner’s actions.

Plaintiffs’ deliberate indifference claims are deficient because Plaintiffs have not identified a

failure to provide specific training or identified any shortcomings in any existing training program

that caused harm to Plaintiffs. See Lapella v. City of Atl. City, No. 10-2454, 2012 WL 2952411,

at *8 (D.N.J. July 18, 2012) (finding that a plaintiff did not adequately plead a failure to train claim

because the complaint contained only conclusory allegations). For the reasons articulated above,

the City, Scirotto, and Schmidt’s motion to dismiss Count II of the Amended Complaint is granted

with prejudice.!°

4. Qualified Immunity

Lackner argues that he is entitled to qualified immunity because Plaintiffs did not have a

reasonable expectation of privacy in their conversations in patrol vehicles, or, if they did, that right

was not clearly established. (ECF No. 27, pp. 24-26).!!

!0 The Court will dismiss Count II of the Amended Complaint as asserted against the City, Scirotto,

and Schmidt with prejudice because any amendment by Plaintiffs would be futile in the eyes of

the Court. Based upon the facts previously pled by Plaintiffs in their first complaint, (ECF No. 1),

and the allegations contained in the Amended Complaint (ECF No. 21), there is no possible factual

basis sufficient to establish a Monell claim against these defendants. Thus, any amendment would

once again fail to establish a § 1983 claim with respect to the City, Scirotto, and Schmidt.

11 Since the Court dismissed Plaintiffs’ § 1983 claims against Scirotto and Schmidt on other

grounds, the Court does not address Scirotto and Schmidt’s qualified immunity arguments.

24

Qualified immunity shields government officials, including police officers, from liability

for civil damages so long as “their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457

U.S. 800, 818 (1982). To determine whether qualified immunity applies, the Court must conduct

a two-part inquiry, considering (1) whether Lackner violated Plaintiffs’ constitutional rights and

(2) whether those rights were clearly established. See El v. City of Pittsburgh, 975 F.3d 327, 334

(3d Cir. 2020); Pearson v. Callahan, 555 U.S. 223, 236 (2009) (affording courts discretion to

decide which step of the qualified immunity analysis to address first). The officer has the burden

of establishing his entitlement to qualified immunity. Peroza-Benitez v. Smith, 994 F.3d 157, 165

(3d Cir. 2021).

Qualified immunity should be upheld on a 12(b)(6) motion “only when the immunity is

established on the face of the complaint.” Leveto v. Lapina, 258 F.3d 156, 161 Gd Cir. 2001). The

Third Circuit has cautioned that “it is generally unwise to venture into a qualified immunity

analysis at the pleading stage as it is necessary to develop the factual record in the vast majority

of cases.” Newland v. Reehorst, 328 F. App’x 788, 791 n.3 Gd Cir. 2009). It has likewise held

that when a “complaint failed to disclose whether the defendants’ actions did not violate a clearly

established constitutional right, dismissal on qualified immunity grounds was premature.” Debrew

v. Auman, 354 F. App’x 639, 642 (3d Cir. 2009) (citing Thomas v. Independence Twp., 463 F. 3d

285, 291 (3d Cir. 2006)).

The Court finds a determination of qualified immunity to be inappropriate at the pleading

stage. Discovery may cast a new light on the qualified immunity analysis and whether the

constitutional right at issue was clearly established. There is no reason at this stage to believe that

qualified immunity exists as a matter of law. Thus, the Court will deny Lackner’s motion to

25

dismiss on the grounds of qualified immunity without prejudice to his right to reassert the qualified

immunity defense in a motion for summary judgment based on a more fully developed record.

C. Reasonable Expectation of Privacy (Counts I and If)

Lackner argues that Counts I and II should be dismissed because Plaintiffs did not possess

a reasonable expectation of privacy in their conversations occurring while on-duty in PBP vehicles

or in Lackner’s office. (ECF No. 27, pp. 22-24). The Court holds that Plaintiffs adequately pled

that they had a reasonable expectation of privacy in their private conversations that occurred in

unmarked PBP patrol vehicles during work hours. Plaintiffs did not plausibly plead that Sedlak

had a reasonable expectation of privacy during his conversation in Lackner’s office.'?

Case law interpreting the federal Wiretap Act “overwhelmingly supports the proposition

that a plaintiff must have a reasonable expectation of privacy in the intercepted conversation

itself.” Miller v. Kruzik, No. 3:CV-06-0463, 2009 WL 10718510, at *8 (M.D. Pa. Feb. 23, 2009)

(citing United States v. Dunbar, 553 F.3d 48, 57 (1st Cir. 2009)); United States v. Peoples, 250

F.3d 630, 637 (8th Cir. 2001) (“Before the interception of a conversation can be found to constitute

an ‘oral communication’ under the federal wiretap law, . . . the individuals involved must show

they had a reasonable expectation of privacy in that conversation.”)). Katz v. United States, 389

U.S. 347 (1967) serves as a guide to define when individuals have a reasonable expectation of

privacy in their conversations. Jd. “To determine whether a claimant has a reasonable expectation

of privacy, a court must examine whether the claimant exhibited an expectation of privacy in the

contents of the communication and whether that expectation is one society is prepared to recognize

© The section of this analysis addressing Sedlak’s reasonable expectation of privacy in his

conversation with Lackner, in Lackner’s office, pertains solely to Sedlak’s WESCA claims in

Count I. As discussed above, Sedlak’s federal Wiretap Act claim, also contained in Count I, fails

because of the direct party exception.

26

as reasonable.” Smith v. Unilife Corp., 72 F. Supp. 3d 568, 573 (E.D. Pa. 2014). Likewise,

WESCA requires a plaintiff to demonstrate that he “possessed an expectation that the

communication would not be intercepted” and that “his expectation was justifiable under the

circumstances.” Kelly v. Borough of Carlisle, 622 F.3d 248, 257 (3d Cir. 2010) (citing Agnew v.

Dupler, 717 A.2d 519, 522 (Pa. 1998)). In sum, both the federal Wiretap Act and WESCA require

the plaintiff to prove that he had a reasonable expectation of privacy in the conversation

intercepted.

This issue is also relevant to Plaintiffs’ § 1983 claims which are based on Fourth

Amendment protections from unreasonable searches and seizures. The Fourth Amendment

protects individuals from unreasonable governmental intrusions when the individual had a

reasonable expectation of privacy. Carpenter v. United States, 585 U.S. 296, 304 (2018). Thus,

all of Plaintiffs’ claims hinge on whether they had a reasonable expectation of privacy in the

conversations recorded. Plaintiffs had a subjective expectation of privacy in their conversations.

(ECF No. 21, J 30-33); (ECF No. 21-1, pp. 5-11). Plaintiffs repeatedly pled that they did not

consent to having their conversations recorded, they did not expect to have their conversations

recorded, and they would have changed what they discussed had they known that they were being

recorded. (/d.). Thus, the issue is whether Plaintiffs’ expectation of privacy was justified under

the circumstances.

“(I|ndividuals do not lose Fourth Amendment rights merely because they work for the

government instead of a private employer.” Quon, 560 U.S. at 756 (internal citations omitted).

Instead, a court must consider “‘[t]he operational realities of the workplace’ in order to determine

whether an employee’s Fourth Amendment rights are implicated.” Jd. (quoting O'Connor v.

Ortega, 480 U.S. 709, 717 (1987)). “[T]he question [of] whether an employee has a reasonable

27

expectation of privacy must be addressed on a case-by-case basis.” Jd. Thus, whether a public

employee had a reasonable expectation of privacy in the workplace is a fact-specific inquiry.

Here, as alleged, the BWCs Lackner used to create the surreptitious recordings were hidden

inside unmarked PBP patrol vehicles. (ECF No. 21-1, p. 5). These vehicles were not equipped

with any audio or visual recording equipment. (/d.). The plainclothes detectives who used these

vehicles did not wear their BWCs on their person during their shift. /d.). Plaintiffs did not know

that BWCs were hidden in the vehicles, nor did Plaintiffs consent to having their conversations

recorded. (ECF No. 21, {§ 30-31). Plaintiffs were not in an office space, in public, or another

common space. They were isolated in an enclosed vehicle. See Sullinger v. Sullinger, 849 F.

App’x 513, 522 (6th Cir. 2021) (“[E]mployees can have a reasonable expectation of privacy in the

workplace where employees take care to ensure that their conversations remained private in a

small, relatively isolated shared office.) (internal citations omitted); Rosario v. United States, 538

F. Supp. 2d 480, 497 (D.P.R. 2008) (holding that police officers had a reasonable expectation of

privacy while in the police station break room); Richards v. Cnty. of Los Angeles, 775 F. Supp. 2d

1176, 1183 (C.D. Cal. 2011) (holding that police dispatchers had a reasonable expectation of

privacy in their office even when supervisors had access to the office).

The conversations that Lackner allegedly recorded were between police officers — not

between police officers and the public. Unlike in Commonwealth v. Henlen, 564 A.2d 905, 906-

07 (Pa. 1989), which Lackner relied upon in his brief, (ECF No. 27, p. 12), to argue that Plaintiffs

did not have a reasonable expectation of privacy, in the instant case the conversations Lackner

allegedly recorded were between police officers, not between police officers and the public. Under

the alleged circumstances, the Court holds that Plaintiffs have adequately pled that they had a

reasonable expectation of privacy in their conversations occurring in unmarked patrol vehicles.

28

See United States v. McIntyre, 582 F.2d 1221, 1224 (9th Cir. 1978) (holding that a police officer

who had a microphone and transmitter placed in his briefcase had a reasonable expectation of

privacy in his office even when the officer commonly left his door open). Discovery will

ultimately reveal whether that expectation of privacy was reasonable.

On the other hand, Plaintiffs pled very little information regarding the recording between

Lackner and Sedlak in Lackner’s office. Plaintiffs allege that Lackner secretly recorded a

conversation between himself and Sedlak, in Lackner’s office, using Lackner’s hidden BWC.

(ECF No. 21-1, p. 19). They contend that Sedlak did not consent to have his conversation recorded,

did not expect to have his conversation recorded, and may have changed what he discussed had he

known that he was being recorded. (/d.). These facts establish that Sedlak had a subjective

expectation of privacy. However, these facts do not plausibly allege that Sedlak’s expectation of

privacy was objectively reasonable. For example, the Court does not know whether Lackner’s

office was shared, other individuals were around during the conversation, or the office door was

open. Plaintiffs failed to plead that Sedlak had a reasonable expectation of privacy during this

conversation. Thus, the Court will dismiss, without prejudice, Plaintiffs’ WESCA claims asserted

against Lackner in Count I as it relates to the conversation between Lackner and Sedlak in

Lackner’s office on September 27, 2023.

'5 Lackner cited a series of cases to support his argument that Plaintiffs did not have a reasonable

expectation of privacy in their conversations that occurred in PBP vehicles. (ECF No. 27, pp. 13-

16). The Court notes that many of the cases that Lackner cited relate to whether arrestees or

criminal suspects have a reasonable expectation of privacy in a police vehicle. Cases about the

expectations of an arrestee or suspect are not analogous to the instant case where the conversations

at issue were between police officers.

29

IV. CONCLUSION

For the forgoing reasons, the Court will dismiss, with prejudice, Counts I and II of

Plaintiffs’ Amended Complaint as asserted against the City, Scirotto, and Schmidt. The Court will

grant Lackner’s motion to dismiss the Count II § 1983 official capacity claims against him with

prejudice, and the Count I statutory wiretap claims in relation to the alleged recording that occurred

in Lackner’s office between Lackner and Sedlak without prejudice. Lackner’s motion will be

denied with respect to all other claims. Orders of Court will follow.

BY THE COURT:

du € gee

WILLIAM S. STICKMAN IV

UNITED STATES DISTRICT JUDGE

i G zs

Dated

30