Nicholas Narducci v. Gregory Moore

In the

United States Court of Appeals

For the Seventh Circuit

No. 06-3427

N ICHOLAS N ARDUCCI,

Plaintiff-Appellee,

v.

G REGORY M OORE and D ONALD L EMM,

Defendants-Appellants.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 01 C 1425—Milton I. Shadur, Judge.

A RGUED M AY 7, 2009—D ECIDED JULY 9, 2009

Before

FLAUM and W ILLIAMS, Circuit Judges, and

LAWRENCE, District Judge.Œ

F LAUM, Circuit Judge. Nicholas Narducci, at one time

the comptroller for the Village of Bellwood, is suing

Œ

The Honorable William T. Lawrence, United States District

Court Judge for the Southern District of Indiana, sitting by

designation.

2 No. 06-3427

the Village, the former mayor, and the police chief for

violating his Fourth Amendment rights and the Fourth

Amendment rights of other plaintiffs in this class action

suit by surreptitiously recording phone calls from the

village’s finance department. He is suing under 42

U.S.C. § 1983 and Title III, a federal statute prohibiting

government officials from intercepting wire or electronic

communications. The defendants moved for summary

judgment in the district court, which was granted in

part and denied in part. They now appeal the denial of

summary judgment, arguing that they are entitled to

qualified immunity on both the § 1983 and Title III claims.

For the following reasons, we affirm the district court.

I. Background

In 1993, Joe Lagen, the comptroller of the Village of

Bellwood, began to worry about irate residents

threatening employees of the village’s finance depart-

ment over the phone (usually because the residents had

failed to pay their utility bills and had seen the city shut

off their water service). And that was not Lagen’s only

worry. He was also concerned about finance depart-

ment employees making personal calls on the village’s

time and over the village’s phone lines. Lagen proposed

to the village’s board of trustees at a “pre-board” meeting

that the village record calls to and from the finance de-

partment on the same system used to record calls to the

police and fire departments.

“Pre-board” meetings, which were usually attended by

Bellwood’s mayor (Donald Lemm), the board of trustees,

No. 06-3427 3

the village attorney and the village clerk, were a

common means by which the board of trustees clarified

its agenda in advance of the twice-monthly board

meetings and heard proposals; it was unusual, but not

unheard of, for the board to adopt policy at a “pre-board”

meeting. The board of trustees apparently agreed to

Lagen’s proposal at the meeting, and authorized him to

begin recording the finance department telephone lines.

Lemm supported the idea as well, having recently heard

some complaints about finance department employees

being rude to residents calling the village.

The board requested that the Bellwood Emergency

Telephone System Board, the board overseeing the

village’s 911 operations, connect the finance department

phone lines to the recording system for emergency calls.

Bellwood established an emergency telephone system in

1990 and the police department recorded calls to the

system. Lagen sent Gary Modrow, a sergeant in the

local police force and the chair of the Emergency Tele-

phone System Board, a memo on January 4, 1994, instruct-

ing him to add five phone lines from the finance depart-

ment to the emergency recording system. Modrow asked

a technician from Dictaphone, the manufacturer of the

village’s recording system, to connect those phone lines.

The process was completed about thirty days later.

Narducci contends that the village did not post notices

on or near the phones alerting finance department em-

4 No. 06-3427

ployees that the village was recording their phone calls.1

The village claims, however, that users of the phone

system heard an audible beep when they began using

one of the recorded lines. Narducci, citing deposition

testimony from Modrow, counters that the beep tone was

eliminated and that he, at least, never heard it when using

the affected phone lines. It appears that Lagen never

listened to any of the calls to check up on threats to depart-

ment employees or misuse of the village’s phone system,

and Lemm never followed-up with the finance depart-

ment regarding threats from customers or instances of

rude behavior from employees.

In March 1996, Gregory Moore replaced Robert Frascone

as the chief of the village’s police department. Moore

learned before taking office that the village was recording

phone lines in the finance department, but did not investi-

gate the circumstances of the recording and took no

steps to disconnect the Dictaphone from the phone lines

until Narducci, Lagen’s successor as comptroller, asked

him to. Moore argued in the district court that he had

no authority to disconnect the phone lines, although

Frascone and Lemm claimed in deposition testimony

that he did.

1

For his part, Lagen claimed in deposition testimony that he

gave a memo to the affected employees letting them know that

the village had begun recording the phone lines in the depart-

ment and that he discussed this with them in face-to-face

meetings. Because the case is before us on appeal from a

motion for summary judgment, we take the facts in the light

most favorable to Narducci.

No. 06-3427 5

Narducci took over as Bellwood’s comptroller in 1997

or 1998, replacing Lagen. He says that when he took over

he had no idea that Bellwood was recording the phone

lines in his department. Bellwood is a small unincorpo-

rated community just west of Chicago, and does not

employ a full-time comptroller; Narducci was simulta-

neously working for other nearby communities and

usually spent only a few days a week in Bellwood. When

he was in Bellwood, he frequently used the phone lines

in the finance department both for Bellwood-related

calls and also to make calls related to confidential matters

for other cities. Narducci claims that he would usually

work at whatever desk in the finance department was

open, but that for confidential matters he sought a less-

crowded place to make his calls.

Narducci learned that Bellwood was recording the

phone lines in the finance department in a meeting on

February 28, 2000. Narducci notified two trustees of the

village that he thought the taping was illegal, alerted the

FBI and the state’s attorney, and wrote a memo to Moore

directing him to stop the recording. After sending that

memo, Narducci continued to make phone calls on the

finance department phone lines but used his cell phone

for all confidential calls.

Moore instructed Modrow to disconnect the finance

department phone lines from the Dictaphone recorder.

Moore believed that the phone lines were disconnected

in March 2000. Modrow, on the other hand, said that

he believed the phones were still connected when he

left Bellwood in February 2002.

6 No. 06-3427

In February 2001, Narducci filed a lawsuit against the

Village of Bellwood, Moore, Lemm, and various unknown

trustees and employees of the village. He later dismissed

the claims against the unnamed trustees and employees,

but proceeded with the case against the three named

defendants, and later had his suit certified as a class

action on behalf of other employees of the finance depart-

ment whose phone calls were recorded. The suit brought

claims under 42 U.S.C. § 1983 and Title III of the Omnibus

Crime Control and Safe Streets Act of 1968 for, respec-

tively, violating his Fourth Amendment right not to be

subjected to illegal searches and for illegal wiretapping.

He also brought Illinois state law claims under the Eaves-

dropping Act and a tort action for intruding on a place

of seclusion. Lemm and Moore moved for summary

judgment on all claims, and specifically on the ground of

qualified immunity (although as we will see, there’s a

complicated back story to their qualified immunity

claim on the Title III count). The district court granted

summary judgment on the state law claims and on any

Title III claims involving phone calls made after

Narducci learned about the recording in February 2000.

The district court denied summary judgment on the § 1983

claims and the remaining Title III claims, finding that

there were disputed issues of fact and that the defendants

were not entitled to qualified immunity. Lemm and

Moore now appeal the district court’s denial of their

qualified immunity claims.

No. 06-3427 7

II. Discussion

We review a district court’s summary judgment

decision de novo. Chaklos v. Stevens, 560 F.3d 705, 710 (7th

Cir. 2009). Summary judgment is proper where “there is

no genuine issue of material fact and the moving party

is entitled to a judgment as a matter of law.” Fed. R. Civ.

P. 56(c).

The defendants are appealing from the district court’s

denial of qualified immunity. The doctrine of qualified

immunity protects government officials from lawsuits

for damages when their conduct did 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). The purpose of

qualified immunity is to provide reasonable notice to

government officials that certain conduct violates con-

stitutional rights before a plaintiff can subject them

to liability. Hope v. Pelzer, 536 U.S. 730, 739 (2002). Reason-

able notice does not require that there be a case “funda-

mentally similar” to the present case, and indeed an

officer can be on notice that his conduct violates con-

stitutional rights even in novel factual circumstances. Id.

at 741 (“Although earlier cases involving ‘fundamentally

similar’ facts can provide especially strong support for

a conclusion that the law is clearly established, they

are not necessary to such a finding. The same is true of

cases with ‘materially similar’ facts.”). For a right to be

clearly established, “its contours ‘must be sufficiently

clear that a reasonable official would understand that

what he is doing violates that right . . . in the light of

8 No. 06-3427

pre-existing law the unlawfulness must be apparent.’ ” Id.

at 739 (quoting Anderson v. Creighton, 483 U.S. 635, 640

(1987)).

When examining a qualified immunity claim, a court

examines whether a constitutional right has been

violated; and then, if a constitutional right was violated,

whether the right in question was sufficiently well estab-

lished that a reasonable officer would have been aware

of it. Saucier v. Katz, 533 U.S. 194, 200 (2001). We no

longer need to address the two portions of the qualified

immunity analysis in any specific order, and can frame

our discussion in the way that produces the clearest

decision. See Pearson v. Callahan, 129 S. Ct. 808, 821 (2009).

Here, because defendants argue that Narducci’s

Fourth Amendment rights were not violated and that

the violation of this right was not “clearly established,”

we will consider both issues in turn.

A. Fourth Amendment violation

Lemm and Moore first argue that Narducci’s § 1983

suit fails because he did not establish a violation of his

Fourth Amendment rights. 42 U.S.C. § 1983 is not an

independent source of tort liability; instead, it creates a

cause of action for “the deprivation, under color of [state]

law, of a citizen’s rights, privileges, or immunities

secured by the Constitution and laws of the United States.”

Ledford v. Sullivan, 105 F.3d 354, 356 (7th Cir. 1997). The

statute is thus a means of vindicating rights secured

elsewhere. Id.

No. 06-3427 9

The underlying claim in this case is a Fourth Amend-

ment claim. “The touchstone of Fourth Amendment

inquiry is reasonableness, a standard measured in light

of the totality of the circumstances and determined by

balancing the degree to which a challenged action

intrudes on an individual’s privacy and the degree to

which the action promotes a legitimate government

interest.” Green v. Butler, 420 F.3d 689, 694 (7th Cir. 2005).

The Supreme Court has held that the Fourth Amend-

ment applies to “searches and seizures by government

employers or supervisors of the private property of their

employees.” O’Connor v. Ortega, 480 U.S. 709, 715 (1987).

With respect to the scope of Fourth Amendment rights in

the workplace, however, the Court added that “[t]he

operational realities of the workplace . . . may make some

employees’ expectations of privacy unreasonable.” Id. at

717. Practices and procedures of a particular office or

legitimate regulations may reduce the expectation of

privacy that government employees enjoy in their work-

place. Id. The circumstances of a particular case matter a

great deal, and each Fourth Amendment claim in this

context has to be examined on its own. “Given the great

variety of work environments in the public sector, the

question whether an employee has a reasonable expecta-

tion of privacy must be addressed on a case-by-case basis.”

Id. at 718.

Once an employee demonstrates a reasonable expecta-

tion of privacy, he must then demonstrate that the

search was unreasonable. “[P]ublic employer intrusions

on the constitutionally protected privacy interests of

10 No. 06-3427

government employees for non-investigatory, work-

related purposes, as well as for investigations of work-

related misconduct, should be judged by the standard

of reasonableness under all the circumstances.” Id. at 725-

26. This standard has two requirements: First, the

search must have been “justified at its inception,” and

second, it must have been “reasonably related in scope

to the circumstances which justified the interference in

the first place.” Id. at 726.

We first consider whether Narducci had a reasonable

expectation of privacy in his phone line. Lemm and

Moore argue that he did not, for two reasons. First, they

argue that Narducci did not have a reasonable expecta-

tion of privacy in a phone line in the finance department;

second, they contend that there was never a “search”

within the meaning of the Fourth Amendment because

nobody ever listened to the calls.

The district court, citing Katz v. United States, 389 U.S.

347, 353 (1967), another case involving surreptitious

recording of phone calls, found that Narducci enjoyed a

reasonable expectation of privacy in his phone line.

Lemm and Moore argue that the issue is more precise,

and that in this case the search was only unreasonable

if Narducci had a reasonable expectation of privacy

when talking on a phone line at work. According to the

defendants, Narducci could not have had a reasonable

expectation of privacy when talking on a phone line in

a crowded workplace, since anyone working nearby

could easily overhear his conversations. Additionally, they

cite Modrow’s deposition testimony that the recording

No. 06-3427 11

system emitted an audible beep at the beginning of every

phone call, which should have led users of the system

to conclude that their calls were recorded. The existence

of that beep, and what indication it gave to finance de-

partment employees about the privacy of their phone

calls, is disputed; taking the facts in the light most favor-

able to Narducci as the non-moving party, it is not a

basis for summary judgment. If the recording procedures

were as obvious as Lemm and Moore now claim that

they were, then the jury may well conclude that Narducci

did not have a subjective expectation of privacy in

his phone line. That is a factual dispute that the jury

will need to resolve, however.

Nor can this court take at face value Lemm and

Moore’s claim that Narducci could not have expected

his phone calls to remain private in a crowded work area.

Narducci claimed in his deposition testimony that

when discussing a confidential matter he “went to a

phone where there wasn’t a lot of people working

nearby.” If true, this would be sufficient for the jury to

conclude that Narducci had a subjective expectation

of privacy when using one of the village phone lines.

Lemm and Moore also argue, however, that even if

Narducci had a subjective expectation of privacy it was

not an objectively reasonable one. Their contention is

that society would not recognize a reasonable expecta-

tion of privacy in a phone line provided by the Village of

Bellwood for public purposes. Under their theory, the

need to monitor the efficient provision of public services

militates against an expectation of privacy on such a

12 No. 06-3427

phone line. This broad exclusion is in tension with lan-

guage from the Ortega opinion rejecting such a categorical

approach to workplace privacy rights. See Ortega, 480

U.S. at 717 (“Given the societal expectations of privacy

in one’s place of work expressed in both Oliver and

Mancusi, we reject the contention made by the Solicitor

General and petitioners that public employees can

never have a reasonable expectation of privacy in their

place of work.”). As the Court found in Ortega, the idea

that one could conduct confidential business at work,

and have an expectation of privacy when doing so, is not

per se unreasonable.

Lemm and Moore also argue that there was no “search”

here within the meaning of the Fourth Amendment

because, while the calls were recorded, there was no

evidence that anyone ever listened to them. Their

claim here is that if nobody ever learned about the con-

tents of the phone calls then nobody did anything that

could have run afoul of the Fourth Amendment. Narducci

argues that we cannot credit this claim at summary

judgment because there is a factual dispute about

whether anyone listened to the phone calls. Narducci has

not come forward with any evidence that anyone

listened to the calls, and is really alluding to the possi-

bility of a factual dispute more than anything else.2 Never

2

The defendant’s Local Rule 56.1 statement contains two

paragraphs relevant to this dispute. One paragraph states

that Lagen never listened to any of the recordings, and neither

(continued...)

No. 06-3427 13

theless, this is not a proper ground for summary judg-

ment. The defendants ask us to infer from the absence of

evidence in the record that nobody from the Village of

Bellwood ever listened to the recorded phone calls, but

drawing that inference would be incompatible with the

requirement that we draw all reasonable inferences in

favor of the non-moving party.

Taking the facts in the light most favorable to Narducci,

then, he has demonstrated a reasonable expectation of

privacy in his phone line at work. The next issue is

whether the workplace search in this case was con-

ducted in a reasonable manner. In Ortega, the Court

rejected a warrant or probable cause requirement for

workplace searches and instead determined that those

searches must simply be reasonable under all of the

circumstances. Id. at 721-25. “Under this reasonableness

standard, both the inception and the scope of the

intrusion must be reasonable.” Id. at 726. A search by a

superior is justified at its inception “when there are

reasonable grounds for suspecting that the search will

turn up evidence that the employee is guilty of work-

related misconduct, or that the search is necessary for

a noninvestigatory work-related purpose . . . .” Id. The

2

(...continued)

did anyone else in the finance department, while a second

paragraph states that no one was assigned to monitor the

calls. While these statements suggest that nobody listened to

the calls as a matter of course, it would take an inferential leap

for us to accept the defendants’ argument that nobody ever

listened to the calls.

14 No. 06-3427

search is reasonable in scope so long as “the measures

taken by the employer are reasonably related to the

search’s objective and they are not overly intrusive in

light of the nature of the alleged misconduct.” Gossmeyer

v. McDonald, 128 F.3d 481, 491 (7th Cir. 1997). The

district court found that the search was justified at its

inception because it was motivated by a work-related

need to record instances of customers being abusive to

employees (or vice versa) and to monitor the use of village

phone lines for personal calls. It ultimately concluded,

however, that under Narducci’s version of the facts that

recording every single phone call made on those lines for

years without ever notifying the employees was not a

reasonable scope for the search.

Lemm and Moore argue that the district court erred by

finding that the search was unreasonably expansive;

they claim that the parameters of the search were never

broadened, and so if it was reasonable at its inception it

was reasonable throughout its duration. This argument

ignores the excessive duration of the search in this case,

however. The recording here lasted at least six years

(and perhaps longer, given the discrepancy in testimony

about when the phone lines were disconnected);

Narducci worked for Bellwood for approximately two

years before he learned that the phone lines were re-

corded. He testified that he made “hundreds and hun-

dreds” of phone calls, some involving “sensitive

personal matters” that were all recorded on the village’s

Dictaphone system. Narducci testified that all of this was

done without giving any notice to the affected parties.

Ortega necessarily requires a case-by-case inquiry, and

No. 06-3427 15

we need not go beyond the facts of this case when dis-

cussing the Fourth Amendment’s applicability. Given

that the allegations in this case include the recording

of every phone call, for at least a six-year period, with no

notice to the affected employees and with the invasion

of privacy falling particularly hard on finance depart-

ment employees who used those lines every day, Narducci

has presented sufficient evidence of a violation of the

Fourth Amendment to withstand summary judgment.3

B. Whether the right was clearly established

Lemm and Moore also argue that workplace search

and seizure law was not sufficiently developed at the

time of the taping to put them on notice that their

conduct violated constitutional rights. This circuit’s case

3

We emphasize that our ruling here is centered on the fre-

quency with which Narducci used the affected phone lines, the

volume of calls that he made, as well as the lack of notice. The

district court has certified this case as a class action, with the

class including all persons who called into or out from the

phone lines during the duration of the taping. Because of the

sensitive, case-by-case inquiry of Ortega (including its limita-

tion to government employees, which some members of the

purported class are almost certainly not) we are skeptical that

Narducci’s claims are typical of the claims of the entire class

(which theoretically embraces people who made a single

phone call) and suggest that in light of the limited nature of

our ruling the district court may need to revisit the issue of

class action certification pursuant to Federal Rule of Civil

Procedure 23(c)(1)(C).

16 No. 06-3427

law, they argue, remains relatively undeveloped on the

subject of workplace searches and seizures. There have

only been two decisions in this circuit dealing with the

issue, both involving physical searches. In Shields v.

Burge, 874 F.2d 1201, 1204-05 (7th Cir. 1988), we held

that officials who searched a police officer’s desk and a

briefcase found in his car were immune from suit under

§ 1983 because the search did not violate a clearly estab-

lished right. In Gossmeyer v. McDonald, 128 F.3d 481, 491

(7th Cir. 1997), we held that a similar search of a

Child Protective Services employee’s file cabinet was

reasonably related to allegations of workplace miscon-

duct and reasonable in scope. Moreover, the panel found

that all of the officials executing the search were entitled

to qualified immunity. Id. at 495. There is thus no square

holding addressing whether recording an employee’s

phone calls violates his Fourth Amendment rights, and

only two opinions addressing the outlines of Fourth

Amendment rights in the workplace.4

4

Lemm and Moore also cite Amati v. City of Woodstock, 176

F.3d 952 (7th Cir. 1999) and Abbott v. Village of Winthrop Harbor,

205 F.3d 976 (7th Cir. 2000). Neither case supports their qualified

immunity claim on the Fourth Amendment grounds. Amati

considered only claims brought under Title III, and it involved

the recording of phone calls into and out of a police depart-

ment, which obviously involves different justifications than

recording calls into and out of a non-emergency city depart-

ment. Abbott involved both § 1983 claims and Title III claims,

but the opinion is concerned with questions of municipal

liability rather than the scope of Fourth Amendment rights.

No. 06-3427 17

Narducci does not contend that there is a decision

from this circuit or the Supreme Court addressing this

issue, but he argues that the contours of the right were

sufficiently clear. Both Katz and Ortega preceded

Bellwood’s decision to record the phone lines in the

finance department; Lemm and Moore thus should

have known that recording those phone lines was a

violation of constitutional rights. While Gossmeyer and

Shields both permitted workplace searches and found

qualified immunity, neither decision altered the

analysis courts are supposed to apply to such claims

and thus did not blur the lines drawn by Ortega and Katz.

Indeed, the opinion in Shields noted that a search may

not be reasonable if it was a “fishing expedition con-

ducted with the hope that something would turn up.”

Shields, 874 F.2d at 1205 (emphasis in original).

The district court’s summary judgment opinion, for its

part, did not find a case in this circuit holding that this

conduct or similar conduct violated a public employee’s

Fourth Amendment rights. The district court denied

qualified immunity, however, because it found that no

reasonable official could have believed that the indis-

criminate taping of all phone calls, with no notice to

the affected employees, for several years after the com-

plaints and alleged threats had ceased, was reasonably

related to the problem justifying the search. The defen-

dants point out that there is no opinion explicitly

finding such conduct to be a violation of the Fourth

Amendment, but the Supreme Court only requires that

“the unlawfulness must be apparent” in light of the

caselaw. Shields, 874 F.2d at 1205 (quoting Anderson, 483

18 No. 06-3427

U.S. at 640); see also Pelzer, 536 U.S. at 741-42 (finding that

prison officials who used a “hitching post” to punish

inmates were not entitled to qualified immunity despite

the lack of a decision addressing the precise issue).

One of our sister circuits has held that in light of Katz,

recording and disclosing a police officer’s personal phone

call to his wife on a police department telephone system

is a clear violation of the Fourth Amendment and that

the supervisor responsible for the recording was not

entitled to qualified immunity. Zaffuto v. City of Hammond,

308 F.3d 485, 489 n.3 (5th Cir. 2002). 5 Another circuit, in a

case involving text messages on a department-issued

pager, found that in circumstances similar to those in

the present case “it was clear at the time of the search

that an employee is free from unreasonable search and

seizure in the workplace.” Quon v. Arch Wireless Operating

Co., Inc., 529 F.3d 892, 909-10 (9th Cir. 2008) (citing Ortega).6

We agree with those circuits that at the time of the re-

cording in this case, it was sufficiently clear that govern-

5

The conduct in Zaffuto involved both recording and disclosing

a personal phone call, which may be a ground on which to

distinguish Zaffuto from the present case. Once again, the

parties dispute whether Bellwood made any use of the record-

ings in this case. We simply note that the Fifth Circuit found

the right to privacy in personal communications on a city-

issued phone line to be sufficiently clear to preclude a finding

of qualified immunity.

6

The Ninth Circuit in Quon ultimately found that a police

chief was entitled to qualified immunity on a ground not

applicable here. See Quon, 529 F.3d at 910.

No. 06-3427 19

ment employees enjoyed a reasonable expectation of

privacy in the workplace to preclude qualified immunity.

C. Title III claims

Lemm and Moore also moved for summary judgment

on the appellees’ claims that the Village of Bellwood

violated Title III by surreptitiously recording phone calls

from the finance department. This circuit, like a few

others, recognizes qualified immunity as a defense to a

lawsuit under Title III. See Davis v. Zirkelbach, 149 F.3d 614,

618 (7th Cir. 1998); see also Tapley v. Collins, 211 F.3d 1210,

1216 (11th Cir. 2000); Blake v. Wright, 179 F.3d 1003, 1013

(6th Cir. 1999). Lemm and Moore originally moved for

summary judgment by presenting a qualified immunity

defense to the 42 U.S.C. § 1983 claims in the complaint, but

moved for summary judgment on other grounds with

respect to the Title III claims. They then raised qualified

immunity as a defense to the Title III claims in their

reply brief.7 The district court refused to consider the

7

The defendants’ motion for summary judgment raised

several grounds for dismissing the Title III claims, including

the consent and law enforcement exceptions to Title III, the

requirement that a communication be intentionally intercepted

and, in the reply brief, qualified immunity. The district court

dismissed some of Narducci’s claims pursuant to the consent

exception but found that the law enforcement exception

did not apply and that both defendants had intentionally

intercepted calls within the meaning of Title III. On appeal,

(continued...)

20 No. 06-3427

argument; the appellants had forfeited it, the court con-

cluded, by not bringing it up in their original submission.

(The appellants have provided, in the appendix to their

appellate briefs, a second summary judgment submission

with a more fulsome qualified immunity discussion.

They filed this second motion after the district court

issued its summary judgment opinion, however, and the

district court did not grant them reconsideration.)

In proceedings before the district court, counsel for

Lemm and Moore conceded that, “when we raised the

argument of qualified immunity, we raised it only under

the section that was entitled Fourth Amendment.” That

would seem to be the end of the issue, since the district

court is entitled to find that an argument raised for the

first time in a reply brief is forfeited. Cromeens, Holloman,

Sibert, Inc v. AB Volvo, 349 F.3d 376, 389 (7th Cir. 2003)

(“Because Volvo raised the applicability of the Maine

statute in its reply brief, the district court was entitled to

find that Volvo waived the issue.”). Lemm and Moore

contend, however, that they can also appeal the denial

of qualified immunity under the collateral order doctrine.

The classic formulation of the collateral order doctrine

holds that a non-final decision of the district court can

be reviewed if it falls within “that small class which

finally determine claims of right separable from, and

7

(...continued)

defendants do not raise those issues except insofar as they

affect their qualified immunity defense, and so we only

evaluate whether the district court correctly found that the

qualified immunity defense was forfeited at summary judgment.

No. 06-3427 21

collateral to, rights asserted in the action, too important

to be denied review and too independent of the cause

itself to require that appellate consideration be deferred

until the whole case is adjudicated.” Cohen v. Beneficial

Indus. Loan Corp., 337 U.S. 541, 546 (1949). While an

appeals court can review a claim of qualified immunity

after trial, and can vacate an adverse judgment if it

finds that the officials are protected by qualified

immunity, the doctrine is a protection from suit as well as

a protection from liability. See Mitchell v. Forsyth, 472

U.S. 511, 526-27 (1985). In this way, qualified immunity

is like the right against double jeopardy; a court cannot

very well vindicate a right not to stand trial after an

official has already stood trial. Thus, an appeals court can

review a denial of summary judgment on qualified im-

munity grounds so long as the denial was not because of

a disputed factual issue. Id. at 530.

This argument does not get Lemm and Moore very far,

however, because it merely supports jurisdiction over

the appeal from the denial of summary judgment. As

discussed above, the district court was entitled to find

that Lemm and Moore waived the qualified immunity

defense in the summary judgment proceedings because

they failed to raise the issue before their reply brief. Of

course, Lemm and Moore also presented a successive

summary judgment motion to the district court, which

it refused to consider. The collateral order doctrine may

give them grounds to appeal the denial of (or rather,

refusal to consider) that second motion. Our review on

that issue is limited, because the filing of successive

summary judgment motions is a matter within the dis-

22 No. 06-3427

cretion of the district court. See Whitford v. Boglino, 63 F.3d

527, 530 (7th Cir. 1995) (“the district court may, in its

discretion, allow a party to renew a previously denied

summary judgment motion or file successive motions,

particularly if good reasons exist.”). Lemm and Moore

argue that the district court should have considered the

qualified immunity issue at summary judgment because

the defense is sufficiently important that the failure

to consider it was plain error. See Yorger v. Pittsburgh

Corning Corp., 733 F.2d 1215, 1220-21 (7th Cir. 1984) (an

argument will not be considered waived if it would

result in a plain miscarriage of justice).

The present case does not support reversal on an other-

wise forfeited ground, however. First, Lemm and Moore

were represented by counsel below, and it is not unfair

to hold them to the standards of waiver to which all

counsel are held. Second, Lemm and Moore were the

moving party for summary judgment; if they felt

entitled to terminate the proceedings because of qualified

immunity, they were required to bring that issue to the

district court’s attention. Finally, as the district court

pointed out, the present case has been litigated since

2001, while the motions for summary judgment were

submitted in 2006; five years is ample time for the defen-

dants to develop the issue and present it in their initial

motion.

We also note that Lemm and Moore have pled the

defense of qualified immunity on the Title III claims

and that it remains available as a basis for a motion

for judgment as a matter of law during the course of a

No. 06-3427 23

trial in this case, or depending on the jury’s verdict, as

the basis for an appeal afterwards.

III. Conclusion

For the foregoing reasons, we A FFIRM the district

court’s denial of the defendants’ motion for summary

judgment.

7-9-09