Hibbert v. Johnson, 3:16-cv-03028

Background

Christina Hibbert, a non-sworn ISP employee (2001–2014), alleges ISP officers secretly videotaped her in locked conference rooms and recorded her “in a state of undress.”
Officers Kindred-Johnson and Fortson collected and disseminated the covert video; ISP retains a copy.
Following an internal merit-board complaint, Officer Johnson served Hibbert with an administrative subpoena directing her to surrender her personal iPhone and to provide its passcode; Hibbert complied and the phone was returned after a complete digital copy was made.
Non-sworn employee Knauer copied the phone’s complete contents (texts, emails, photos, financial and medical info) and gave the data to ISP officers; ISP retains that data.
Hibbert sued under 42 U.S.C. § 1983 alleging Fourth Amendment search/seizure and invasion of privacy based on (1) the phone seizure/copying (Count 1) and (2) covert video recording (Count 2); several defendants moved to dismiss.
The court addressed requests for injunctive relief, whether the phone incident constituted a Fourth Amendment search/seizure, and whether defendants had absolute or qualified immunity.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Injunctive relief (return/destruction of data; policy changes)	Hibbert seeks return of copies and destruction of video and changes to ISP policy because harm is ongoing (stress/emotional distress).	Defendants contend harm is past and they do not intend to use retained data; policy changes are improper because Hibbert is no longer an employee.	Court: DENIED dismissal for return/destruction (ongoing injury alleged); GRANTED dismissal for policy-change requests (Hibbert no longer subject to ISP policies).
Fourth Amendment seizure (phone surrender)	The service of the subpoena and commands to surrender phone and password amounted to a show of authority causing a seizure.	A subpoena/service by an employer or threat of disciplinary action does not necessarily create a Fourth Amendment seizure.	Court: DENIED dismissal — factual questions remain whether the encounter amounted to a seizure.
Fourth Amendment search (copying phone contents)	Copying the phone’s entire contents invaded a reasonable expectation of privacy in a personal, password-protected smartphone.	Defendants argue administrative subpoenas and workplace searches permissible; no search violation.	Court: DENIED dismissal — pleadings plausibly allege a reasonable expectation of privacy and a potentially unreasonable, overbroad search.
Immunity (absolute and qualified)	Hibbert: officers not entitled to immunity for serving/copying beyond board functions and for violating clearly established rights.	Defendants claim absolute immunity for quasi-judicial enforcement and qualified immunity for reasonable official conduct.	Court: Absolute immunity DENIED (actions were executive/investigative, not quasi-judicial); Qualified immunity DENIED (right was sufficiently clearly established under controlling precedent).

Key Cases Cited

Tamayo v. Blagojevich, 526 F.3d 1074 (7th Cir. 2008) (pleading standard at motion to dismiss)
O'Connor v. Ortega, 480 U.S. 709 (1987) (public-employee Fourth Amendment search standard)
Riley v. California, 134 S. Ct. 2473 (2014) (modern cell phones implicate heightened privacy interests)
City of Ontario v. Quon, 560 U.S. 746 (2010) (workplace text-message search reasonableness factors)
Narducci v. Moore, 572 F.3d 313 (7th Cir. 2009) (scope and notice affect workplace privacy expectations)
Carter v. City of Milwaukee, 743 F.3d 540 (7th Cir. 2014) (when a supervisor’s commands constitute a Fourth Amendment seizure)
Driebel v. City of Milwaukee, 298 F.3d 622 (7th Cir. 2002) (distinguishing supervisory orders from law-enforcement seizures)
Hartman v. Moore, 547 U.S. 250 (2006) (limits on absolute immunity for investigatory conduct)
Richman v. Sheahan, 270 F.3d 430 (7th Cir. 2001) (quasi-judicial immunity does not extend to how orders are carried out)
O'Shea v. Littleton, 414 U.S. 488 (1974) (injunctive relief requires ongoing or likely-to-recur harm)