719 F.Supp.3d 869
E.D. Wis.2024Background
- Plaintiffs, including the Wisconsin State Senate, Senator André Jacque, and Anthony Theisen, sued the City of Green Bay and Mayor Eric Genrich for installing audio surveillance devices in Green Bay City Hall hallways where private conversations occurred.
- Allegations include continuous, surreptitious audio recording of City Hall hallways without public notice or authorization by the Common Council between Winter 2021 and Summer 2022.
- Plaintiffs brought claims under Wisconsin's Electronic Surveillance Control Law (WESCL), statutory right to privacy, the Fourth Amendment, and sought both damages and declaratory relief.
- The case was removed from state to federal court on the addition of federal constitutional claims; defendants moved to dismiss on jurisdictional and substantive grounds.
- Green Bay's Common Council has since removed the surveillance devices and passed an ordinance regulating such surveillance, also agreeing to destroy recordings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing of State Senate | State Senate has institutional interest in municipal limits | Senate lacks injury; should be dismissed for no standing | State Senate dismissed for lack of standing |
| Mootness of declaratory relief claims | Declaratory relief needed as predicate for damages | Declaratory relief mooted by device removal | Declaratory relief claims dismissed as moot |
| Reasonable expectation of privacy | Plaintiffs took steps to keep conversations private | Hallways are public; no reasonable expectation of privacy | Plaintiffs plausibly allege reasonable expectation |
| Qualified immunity (Mayor Genrich) | Right to privacy clearly established by precedent | Law not clearly established in this context | Qualified immunity denied; claims proceed |
| Monell liability (City's liability) | Mayor was policymaker; installation caused violation | Allegations are conclusory | Plaintiffs state a Monell claim; survives |
Key Cases Cited
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (standard for sufficiency of pleadings on a motion to dismiss)
- Katz v. United States, 389 U.S. 347 (1967) (Fourth Amendment protects privacy in conversations, not just places)
- Monell v. Dept. of Social Services, 436 U.S. 658 (1978) (municipalities can be liable for official policies causing constitutional violations)
- Narducci v. Moore, 572 F.3d 313 (7th Cir. 2009) (reasonable expectation of privacy in the workplace, surreptitious recording is unlawful)
- O'Connor v. Ortega, 480 U.S. 709 (1987) (privacy in government workplaces depends on operational realities)