Valpo Law Blog

Analysis of current legal issues and cases in the Seventh Circuit Court of Appeals

Category: Privacy

Surveillance Cameras At Work: Invasion of Privacy?

By: Haley Holmberg
J.D. Candidate, 2017
Valparaiso University School of Law

A peeping Tom or just a supervisor doing his job? The Seventh Circuit Court of Appeals reviewed Gustafson v. Adkins to establish whether the defendants had a valid reason behind their actions and were protected by qualified immunity or whether they should be held accountable.

Renee Gustafson worked at Jesse Brown Veterans Affairs (“VA”) Medical Center in Chicago as a police lieutenant supervisor. During this time, the VA didn’t have a designated area for female officers to change so they often changed in an active supervisors’ office. In May 2007, Thomas instructed Adkins to install a hidden camera in the office to identify supervisors who slept on duty. Adkins informed Thomas about the illegality, but was instructed to install the camera anyway. The images were sent to Thomas’s office for viewing. The camera was discovered two years later and had caught images of Gustafson and other females changing. Gustafson filed suit against Thomas and Adkins alleging her privacy had been invaded and she had been the victim of an unconstitutional search under the 4th Amendment.

Adkins argues Gustafson’s claim of 4th Amendment violation is precluded by the Civil Service Reform Act (“CSRA”) and the Federal Employees’ Compensation Act (“FECA”). The CSRA establishes a framework for evaluating adverse personnel actions against federal employees and may preempt federal claims that fall within its scope. However, Adkins’s conduct does not fall within the scope and cannot be considered to have been done for “disciplinary or corrective action” as there is little evidence that the camera was being used for this purpose. Further, case law on the matter suggests Adkins’s conduct is “closer to a warrantless search outside the scope of the CSRA.”  “The FECA provides the exclusive remedy against the United States or an instrumentality thereof to compensate a federal employee for a work-related injury defined as injury by accident and disease proximately caused by the employment.” The FECA does not bar a federal employee’s suit against individual co-employees. Given the silence on co-employee suits and the difficulty of defining Adkins actions as accidental, therefore matters of the suit are not determinative based on the FECA.

Adkins also claims his motion on summary judgment should have been granted based on qualified immunity. “The doctrine of qualified immunity protects government officials from liability for civil damages when their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”  In order to determine if Adkins can invoke qualified immunity the court must inquire whether the constitutional right was clearly established at the time of the alleged violation. According to case law, the essential principle is that an employer’s workplace search must be reasonable. “Reasonableness depends upon the circumstances presented in a given situation and upon balancing the public, governmental, and private interests at stake in that situation.” At the time the camera was installed, the right of employees to be free from unreasonable employer searches was already established. Therefore, Adkins did not meet the requirements of qualified immunity.

For the foregoing reasons, the court affirmed the judgment of the district court. This case is a prime example of why we must never just do as we are told, even in employment. To further demonstrate this, refer to Yale University psychology professor Stanley Milgram’s 1961 study on authoritarian obedience. When others are allowed to make decisions for us, it may not always lead to an outcome in our best interest.

Practicality of Actual Injury in Data Breach

Backlit keyboard

By: Duke Truong
J.D. Candidate, 2017
Valparaiso University School of Law

Imagine being one of four million members under the care of Advocate Health and Hospitals Corporation (Advocate) and waking up to news that thieves have stolen your confidential information.  This is exactly what happened the morning after July 15, 2013, when burglars stole four password-protected computers from Advocate.   The computers contained patient’s confidential information: social security numbers, Medicare and Medicaid data, medical record numbers, health insurance data, and medical diagnoses along with names, addresses, and date of birth.  Advocate, whom patients entrusted with the duty of protecting their data, did not notify them of the breach until August 23, 2013.  Despite these facts, no proof of improper access or improper use of the confidential information actually occurred.

Matias Maglio and other affected patients brought a class action suit against Advocate in the circuit court of Lake County and Kane County.  Both lawsuits alleged claims of negligence, invasion of privacy, and violations of the Consumer and Deceptive Business Protection Act and the Illinois Personal Information Act.  Yet, plaintiffs failed to allege any unauthorized uses of their private information.  Despite the fact plaintiffs did not suffer any actual injury, they moved forward with their lawsuits anyhow.

Advocate moved to dismiss the complaints under the Rules of Civil Procedure for failure to state a claim and for lack of standing.  The plaintiffs did not suffer an injury-in-fact and only speculated that their stolen confidential information may lead to increased risk of identity fraud.  The doctrine of standing requires a plaintiff to raise issues of a real injury to which the law can recognize so to provide a remedy.  The complaints only alleged future, uncertain risk of identity fraud. The district courts of Lake County and Kane County dismissed the complaints in May and July of 2014, respectively.

However, the plaintiffs appealed to the Appellate Court of Illinois on grounds that the lower courts erred in its decisions.  The appellate panel consolidated the cases from the two counties and affirmed the district court’s decisions in Maglio v. Advocate Health and Hospitals Corporation on August 6, 2015.

The appellate panel reiterated that plaintiff’s failure to establish any specific injury makes the lawsuits insufficient.  To date, only two of the 4 million members suffered actual identity theft and they are not parties in the lawsuits.  The court held that this fact alone does not prove that plaintiffs face certain imminent risk of substantial harm.  Speculating about a future injury or harm is not grounds for a claim in the court of law.  To move forward, plaintiffs must show that their medical records were in fact disclosed to third parties.

Although the breach did not result in unauthorized use of information, speculation is not a cause for action.  To help lessen the burden on the courts, plaintiffs have to make sure their claims contain actual injuries otherwise it is a waste of resources for parties involved.  It may seem minor to determine actual injury, but the practicality is priceless.  As society increasingly depend on technology to store confidential information, employers (especially healthcare providers) should make data security one of the top priorities.  Employers should consider safeguards such as encryption and periodic audits to lessen the likelihood of a data breach. Proper training about HIPAA, security regulations and data privacy laws will further guard against a breach.

Motion to Dismiss? Seventh Circuit Says “Not So Fast.”

By: Jeremy M. Schmidt
J.D. Candidate, 2017
Valparaiso University School of Law

Recently the Seventh Circuit  decided that the Federal District Court for the Southern District of Illinois erred when it dismissed Dr. Robert L. Meinders, D.C., Ltd., v. UnitedHealthcare, Inc., et al. because the district court denied Dr. Meinders (Meinders) due process when it dismissed the case without allowing Meinders reasonable time to respond. Meinders filed a complaint against UnitedHealthcare (United) in Illinois State court in 2014. Meinders claimed that United violated the Telephone Consumer Protection Act (TCPA) and the Illinois Consumer Fraud and Deceptive Practices Act when they sent him unsolicited junk faxadvertisements. United had the case removed to the Federal District court because it involved a federal question since the TCPA is a federal Statute.

In 2013, Meinders and ACN Group, Inc., a subsidiary of United, entered a provider agreement. After Meinders entered this agreement, he started to receive junk faxfrom United. Under the provider agreement, any dispute arising from the agreement were subject to arbitration. United claimed that they were protected by this agreement because ACN Group was one of their subsidiaries. Therefore, United argued that this dispute needed to go through arbitration as was priorly agreed to. However, the Seventh Circuit said United is not protected by the agreement because they, themselves, were not a party to the agreement. The seventh circuit continued by explaining that a parent company cannot enforce an arbitration agreement of a subsidiary when only the subsidiary was a party to the agreement.

Meinders heavily relied on the contract theory of “If your are not a party to the agreement you cannot make a claim under that agreement.” In response, United introduced new evidence stating that they were a party to the agreement. Colleen Van Ham, President and CEO of UnitedHealthcare of Illinois, stated that ACN Group was a wholly owned subsidiary, thus making United a party to the agreement. United also argued that it assumed important obligations under the provider agreement such as  ACN Groups obligation to coordinate and transmit payments to providers.

Meinders asked the federal district court to strike the new evidence from the brief, or to allow them to file a reply brief to counter the new evidence. The federal district court denied Meinders request, and allowed Uniteds motion to dismiss so that the case could move to arbitration, as according to the providers’ agreement. Meinders then filed for appeal. The seventh circuit concluded that Meinders did not have a fair and reasonable opportunity to respond to Uniteds reply brief that introduced new evidence. So the court reversed the federal districts court decision to dismiss, and remanded the case for further proceedings.

“Less than Opaque” Jumpsuit Exposes Disregard for Prisoner Dignity


By Andrea J. LaMontagne
Valparaiso University Law School
J.D. Candidate, 2016

While safety concerns in dealing with prisoners must be balanced against certain violations of prisoners’ privacy, there are still circumstances where supposed safety measures go too far. For instance, while strip searches of prisoners are typical and reasonable safety measures, requiring a prisoner to wear a transparent jumpsuit is not. The Seventh Circuit Court of Appeals reviewed such an instance this week in King v. McCarty, et al., when a prisoner was left emotionally scarred by the “safety measures” encountered from his guards.

Prior to being transported from a county jail to a state prison, Illinois prisoner Marshall King, was forced to wear a jumpsuit that left him exposed. The jumpsuit was not the typical garment administered by prison personnel, and left King’s genitals and rear exposed for an extended amount of time in front of both male and female guards and other male prisoners. King was chained to other prisoners during the transport and noticed that they were not similarly outfitted. After requesting garments with which to cover himself, King was mocked and advised that he should be grateful that he was not being transported in winter.

Although the guards responsible have failed, thus far, to comply with discovery requests that would require them to deliver the jumpsuit in question, they denied the jumpsuit’s translucency but stated that it was “less than opaque” and admitted that it was not standard issue. The guards further stated that providing him the jumpsuit was due to security concerns, despite the fact that King was strip searched on both sides of his transport to the new prison.

According to the Seventh Circuit Court of Appeals’ opinion, King brought suit on the following grounds: that the acts of the guards “amounted to an unjustified and humiliating strip-search that violated his rights under the Fourth and Eighth Amendments to the federal Constitution.” However, the district court found after reviewing King’s complaint (under the Prison Litigation Reform Act of 1995) that he had not stated a viable claim under the Eighth Amendment for cruel and unusual punishment, but allowed him to go forward with the Fourth Amendment theory of unreasonable search. The district court later granted summary judgment in favor of the defendants because King had failed to exhaust all administrative remedies to his problem under the Prison Litigation Reform Act. King subsequently appealed.

In reviewing King’s complaint, the Seventh Circuit decided that King’s transfer from one prison to another “made it impossible” for him to follow the grievance procedures against the guards that he would have otherwise been allowed. After being transferred, King wrote to the jail to obtain the proper grievance form, but received no response.

In response to the claim by defendants that he had not followed the proper grievance procedures, “King… responded with a number of affidavits and sworn pleadings stating that: (1) he tried to resolve his complaint informally by complaining to the guards on the day of his transfer; (2) he lacked access to writing materials with which to request the grievance form until more than a week after his transfer; and (3) he wrote to the jail as soon as he could, explaining his complaint and requesting the proper paperwork, but never received a response”, which tends to prove that King did exhaust all viable options in attempting to contact the county jail with his grievance.

The Seventh Circuit reversed and remanded for further proceedings after clarifying that an Eighth Amendment claim of cruel and unusual punishment was valid in this situation. It held that the Eight Amendment claim that King attempted at the district court level was plausible because the “unusual” jumpsuit King was forced to wear did not have a corrective purpose, but was rather used for humiliation. The Seventh Circuit explained that even in prison individuals must be protected against unreasonable intrusions to their bodies.

Such a holding by the Seventh Circuit Court of Appeals will hopefully encourage prisons to uphold standards of prisoner dignity in day-to-day operations. This decision demonstrates to those who would harass and embarrass prisoners for the sake of their own amusement that such sickening and intrusive behavior will not be tolerated.

Captured for Capturing

shoe cam

By: John M. Acosta
Valparaiso University Law School
J.D. Candidate, 2016

A line has been drawn in the sand. Sam Shaw took the most famous and iconic photo of Marilyn Monroe. Over the years, laws and public perception have changed. Peeking “upskirts” has gone high tech, and prosecutors taking notice.

In Delagrange v. State, the Indiana Supreme Court upheld the trial court decision stating a person taking “upskirt” photographs of women and girls by means of a concealed shoe camera is attempted child exploitation.

On February 27, 2010, Delagrange left his home in Fort Wayne and drove over 100 miles to the Castleton Square Mall in Indianapolis. Delagrange wandered around trying to take “upskirt” photographs of women and girls as they were shopping. Upon locating a selected a victim, he would approach her and try to position his foot between her legs. Once in position, Delagrange would expose a video camera attached to his  shoe. Delagrange collected approximately seven minutes of actual images.

Surprisingly, Delagrange’s unusual behavior attracted attention, and a store employee contacted police. After a brief confrontation, an officer arrested Delagrange and discovered his camera system. Detectives later identified four girls from the recorded images, three ages seventeen and one age fifteen. The images depicted the area under the skirt and between the legs of the victims, but did not depict any uncovered genitals.

The State charged Delagrange with four counts of Class C felony attempted child exploitation and one count of Class A misdemeanor resisting law enforcement. Delagrange filed a motion to dismiss the attempted child exploitation charges, which the trial court dismissed. The jury  convicted Delagrange, he appealed, arguing the evidence was insufficient to support his convictions for attempted child exploitation.

A divided Indiana Court of Appeals reversed the decision, as to the attempted child exploitation charges. The Court reasoned the child exploitation statute demands the child be performing the sexual conduct, with the intent to satisfy someone’s sexual desires. Furthermore, in order for Delagrange to commit child exploitation each victim must have been exhibiting their uncovered genitals with the intent to satisfy sexual desires. Therefore, since the State did not present any evidence of the victims exhibiting their uncovered genitals the conviction was reversed.

The Indiana Supreme Court upheld the trial court stating Delagrange was charged with attempted child exploitation, which the State need not show he captured images of uncovered genitals, but rather he took a substantial step towards doing so. The Court reasoned that Delagrange drove about 100 miles from his home to a mall, outfitted himself with an elaborate shoe camera, and captured video from at least four victims.

Finally, Delagrange repeatedly attempted to argue his images were similar to the famous photograph of Marilyn Monroe standing over an air vent, the Court stated Marilyn Monroe was a knowing and consenting adult, unlike his victims who were unknowing and unconsenting children.

Additionally, on September 17, 2014, the Court of Criminal Appeals of Texas, in Ex Parte Ronald Thompson, rendered Section 21.15(b) (1) of the Texas Penal Code criminalizing improper photography unconstitutional on its face. The decision only rendered the section unconstitutional to the extent it proscribes the taking of photographs and the recording of visual images, is in violation of the Free Speech Clause of the First Amendment.

One key distinguishing factor is Ronald Thompson used his camera in an open and notorious manner, where Delagrange did not.

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