CASSANDRA SOCHA, Plaintiff-Appellant v. CITY OF JOLIET, ILLINOIS and EDWARD GRIZZLE, Defendants-Appellees
No. 23-2905
United States Court of Appeals, Seventh Circuit
Decided July 10, 2024
In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 23-2905
CASSANDRA SOCHA,
Plaintiff-Appellant,
v.
CITY OF JOLIET, ILLINOIS and
EDWARD GRIZZLE,
Defendants-Appellees.
____________________
Northern District of Illinois, Eastern Division.
No. 1:18-cv-05681 — Jorge L. Alonso, Judge.
____________________
ARGUED APRIL 3, 2024 — DECIDED JULY 10, 2024
____________________
KIRSCH, Circuit Judge. Cassandra Socha, a patrol officer
with the Joliet Police Department (JPD), sent a text message to
her neighbor criticizing her for testifying in the criminal trial
of Socha’s boyfriend. Upon learning of the message, a prosecutor recommended to Sergeant Edward Grizzle that he secure a search warrant for Socha’s cell phone. He did so and thereby obtained authority to search Socha’s phone for any
and all data related to electronic communications.
Socha turned her phone over to Sgt. Grizzle and stressed
to him that there was personal content on her phone that she
wanted to remain private. To search for the text message, JPD
detectives used forensic software called Cellebrite to extract
all the data from her phone. They then saved the extracted
data on the only computer that ran the software. Not long after the extraction, Socha heard rumors that people within the
JPD had seen explicit content from her phone. Only two members of the JPD, however, admitted to seeing such content: Detectives Donald McKinney and Brad McKeon. Det. McKinney
had opened a photograph on the Cellebrite computer and
brought it to Det. McKeon’s attention. The City asserts that
Det. McKinney accessed the photograph inadvertently while
opening random files in order to familiarize himself with and
train on Cellebrite. Socha argues he opened her photograph
intentionally and without proper authorization.
Socha sued the City of Joliet, Sgt. Grizzle, and 20 John
Does. She brought multiple claims under federal and Illinois
law, including, as relevant to this appeal, a claim under 42
Amendment rights and an intrusion upon seclusion claim under Illinois law against the City. The district court granted
summary judgment to Sgt. Grizzle on the
rather than exercise its discretion to relinquish supplemental
jurisdiction over the Illinois law claim under
§ 1367(c)(3), also granted summary judgment to the City on
the intrusion upon seclusion claim.
We agree that Sgt. Grizzle is entitled to qualified immunity and thus conclude that the court properly granted summary judgment in his favor on the
the intrusion upon seclusion claim, we disagree with the district court and conclude that a reasonable jury could find that
Det. McKinney accessed Socha’s photograph intentionally
and without authorization, so we reverse the grant of summary judgment on that claim.
I
Cassandra Socha has been a patrol officer with the JPD
since 2014. At some point, she became romantically involved
with another JPD patrol officer, Nick Crowley. In July 2017,
she and Crowley had a domestic dispute at their home that
resulted in Crowley being charged with reckless discharge of
a firearm. Their neighbor, Maria Gatlin, provided a statement
to Joliet police about the incident and later testified in Crowley’s bench trial during the state’s case in chief in May 2018.
Crowley was acquitted of the charge.
After Gatlin’s testimony and counsel’s closing arguments,
but before the verdict, Socha sent Gatlin a text message taking
issue with her testimony. Shortly after receiving the message,
Gatlin showed it to Lorinda Lamken, a Special Prosecutor
with the Office of the State’s Attorney’s Appellate Prosecutor.
Lamken believed
harassment in violation of Illinois law and, consequently, contacted Sergeant Edward Grizzle, the detective who had been
assigned to investigate Crowley’s criminal case. Lamken told
Sgt. Grizzle that it would be necessary to secure a search warrant for Socha’s phone to confirm that the message to Gatlin
had come from Socha. Sgt. Grizzle then met with JPD Chief
Brian Benton and Deputy Chief of Investigations Al Roechner
who directed him to obtain a search warrant for Socha’s
phone if Lamken so desired.
After meeting with Gatlin and seeing a screenshot of the
message, Sgt. Grizzle conferred with Lamken about how to
draft the warrant application. Sgt. Grizzle then prepared,
signed, and swore to a complaint describing his investigation
and seeking a search warrant for Socha’s phone. It described
how Socha contacted Gatlin via text message after Gatlin testified, how Gatlin knew the message was from Socha based
on the phone number, and that deleted files on a cell phone
can be recovered using forensic software. He also sent the
completed complaint to Lamken, who reviewed and approved it.
Sgt. Grizzle submitted the complaint to the Circuit Court
of Will County, which issued a search warrant authorizing the
seizure and search of Socha’s phone for
Any and all data regarding electronic communications, including dates and times of those communications, digital images or videos, e-mail, voice mail,
buddy lists, chat logs, instant messaging or text accounts, forensic data as well as data pertaining to
ownership and registration of the device, any and
all access logs identifying who utilized said digital
storage devices, and any “hidden,” erased, compressed, password-protected, or encrypted files.
It also granted authority to “analyze and search any media
seized for relevant evidence as outlined in this search warrant.”
Later that day, Socha was brought to a conference room at
the JPD station, and Sgt. Grizzle served her with the search
warrant, telling her that he needed her phone. Before giving
her phone to Sgt. Grizzle, Socha expressed a common concern that there was material on her phone she did not want anyone
to see. She did not describe the private material to Sgt. Grizzle.
Upon seizing the phone, Sgt. Grizzle asked Detective
Christopher Botzum to extract the data from it using Cellebrite, a forensic software used to extract and analyze data
from phones, including deleted files. Det. Botzum extracted
the data, saved it to a folder with a non-descriptive file name
that did not include Socha’s name, and showed Sgt. Grizzle
where it was saved. Det. German also saved the data onto a
USB thumb drive and gave it to Sgt. Grizzle. Besides the
thumb drive, the extracted data was only accessible on one
computer in the JPD station. That computer was password
protected (though the password was, simply, “Joliet”), it was
in an area within the JPD investigations unit requiring
keycode access, and only those who knew how to use Cellebrite could navigate the program to access the data on the
computer. That said, JPD General Order 10-6 governed access
to investigative files such as the phone extractions contained
in Cellebrite. It set out that, “Investigative case files shall only
be accessible to law enforcement personnel at the discretion
of the assigned investigator or an Investigation supervisor.”
After finishing the extraction, the JPD returned Socha’s phone
to her. The data was eventually deleted from the Cellebrite
computer around three weeks after it was first downloaded.
pages of text messages for ones associated with Gatlin’s
phone number, and located the text message at issue. After
Sgt. Grizzle’s investigation, Socha was neither disciplined by
JPD nor criminally charged in connection with the text message.
Over the summer, Socha became aware of rumors, in part
via an anonymous letter, that individuals within JPD had
viewed explicit content extracted from her phone. But only
Detectives Donald McKinney and Brad McKeon admitted to
seeing any such material. At the time, Det. McKinney, a newer
detective, had been informally training on and familiarizing
himself with Cellebrite at the direction of Det. German, who
had given him the password to the Cellebrite computer. Defendants claim Det. McKinney, as part of the informal training, would use the Cellebrite computer to view data relevant
to cases other than ones to which he was assigned. Neither
Det. McKinney nor Det. McKeon were involved in investigating Socha’s message to Gatlin.
At some time between the date when Socha’s data was
downloaded and when it was deleted, Det. McKinney accessed a media folder on Cellebrite and opened a photograph
depicting a nude, female torso from the shoulders down. Det.
McKinney then brought the photograph to the attention of
Det. McKeon, who was sitting next to him. Det. McKeon
looked at the photograph, asked Det. McKinney what the image was, and McKinney replied with something to the effect
of “it might be Socha’s phone” or “it could be Socha’s records.” Defendants contend that Det. McKinney, as part of his
informal training on Cellebrite, was accessing random files to
familiarize himself with the system and inadvertently opened
the photograph, but Socha disputes this. They also assert that,
after opening the photograph, Det. McKinney saw a thumbnail that appeared to depict a face, clicked on and viewed a
second photograph in which Socha’s face was visible, and
then promptly closed the Cellebrite program. Socha disputes
this as well.
After becoming aware of the rumors, Socha sued the City,
Sgt. Grizzle, and 20 John Does raising a host of claims under
federal and Illinois law. After the court granted motions to
dismiss and the close of discovery, Socha’s remaining claims
were: (1) violation of her Fourth and Fourteenth Amendment
rights under
Grizzle; and (3) invasion of privacy/publication of private
facts under Illinois law against the City and Grizzle. (Socha
failed to prosecute her claims against the John Doe defendants, so those were dismissed.)
Sgt. Grizzle and the City moved for summary judgment.
Finding that Socha had not opposed summary judgment on
the Fourteenth Amendment and invasion of privacy/publication of private facts claims, the court only addressed the merits of the Fourth Amendment claim against Sgt. Grizzle and
the intrusion upon seclusion claims against the City and Grizzle. The court granted the defendants’ motions, exercising
(but not expressly addressing the issue of) supplemental jurisdiction over the intrusion upon seclusion claim, even
though it dismissed the federal claim. Socha now appeals. She
does not challenge the grant of summary judgment to Sgt.
Grizzle on the intrusion upon seclusion claim, so we say no
more about it.
II
We first address Socha’s objection to the district court’s
grant of summary judgment on her
Grizzle on qualified immunity grounds. She
obtaining and executing the search warrant for her phone violated the Fourth Amendment. The district court concluded
that Sgt. Grizzle was immune because Socha failed to show a
violation of clearly established law. We review a grant of summary judgment on such grounds de novo. Kemp v. Liebel, 877
F.3d 346, 350 (7th Cir. 2017).
Socha raises two theories on appeal to argue that the district court erred because Sgt. Grizzle violated clearly established law and is thus not entitled to qualified immunity, but
neither carries the day. She asserts Sgt. Grizzle is liable because: (1) he made material omissions and misrepresentations
in the warrant application; and (2) he sought, obtained, and
executed an overbroad warrant.
A
A warrant request violates the Fourth Amendment if an
officer, in making the request, “knowingly, intentionally, or
with reckless disregard for the truth, makes false statements”
that were material—that is, “necessary to the determination
that a warrant should issue,” Hart v. Mannina, 798 F.3d 578,
591 (7th Cir. 2015) (quotation omitted)—or “intentionally or
recklessly with[holds] material facts,” Whitlock v. Brown, 596
F.3d 406, 410 (7th Cir. 2010).
Proving a violation alone, however, is not sufficient for liability. Police officers sued under
entitled to qualified immunity unless: “(1) they violated a federal statutory or constitutional right, and (2) the unlawfulness
of their conduct was clearly established at the time.” Pierner-
Lytge v. Hobbs, 60 F.4th 1039, 1044 (7th Cir. 2023) (quoting Dis-
trict of Columbia v. Wesby, 583 U.S. 48, 62–63 (2018))). If either
of the two prongs is not met, the officer cannot be personally
liable. Id. We have discretion to decide which of the prongs
we address first. Id.
We can resolve this issue under prong one: Sgt. Grizzle
made no reckless, knowing, or intentional misrepresentation
or omission in the warrant application. Socha contends that
Sgt. Grizzle did so by misrepresenting the need to search such
a broad variety of data and omitting from the application that
it was possible to limit the search of her phone to only her text
messages. But Sgt. Grizzle made no such misrepresentation
and need not have mentioned the latter possibility. First, Sgt.
Grizzle told the state court what he needed to search for (a
single text message), where it could be found (the data on Socha’s phone related to electronic communications), and that
forensic software could be used to recover deleted data. In doing so, he gave the reasons why, at the time, he perceived the
need for a broad warrant, especially because of the risk that
the data had been deleted. See Wayne R. LaFave, 2 Search &
Seizure § 4.6(d) (6th ed. 2020) (“As electronic data can be hidden in multiple formats and places in a cell phone, … it can
be difficult for officers to specify in advance the sections of the
device that should be searched.”). There is no claim that Sgt.
Grizzle lied about what he was searching for or where it
might be found, and it is only “[w]ith the benefit of hindsight”
that we know that his description of the places to be searched
was broader than necessary. Maryland v. Garrison, 480 U.S. 79,
85 (1987). But “we must judge the constitutionality of [his]
conduct in light of the information available to [him] at the
time [he] acted.” Id. Accordingly, expressing a need for a
broad warrant was not a misrepresentation merely because,
in retrospect, its breadth was unnecessary. Cf. Edwards v. Jol-
liff-Blake, 907 F.3d 1052, 1057 (7th Cir. 2018) (“In determining
whether probable cause existed, ‘we look only at what the officer knew at the time he sought the warrant, not at how
things turned out in hindsight.’”) (quotation omitted).
Second, it is not a culpable omission to fail to state the obvious, ever-present possibility that the search could have been
more limited. Warrants limit a search’s scope by: (1) specifically describing the “area that can be searched”; and (2) particularly articulating the “items that can be sought” in the
search. Birchfield v. North Dakota, 579 U.S. 438, 469 (2016). The
latter is a limitation on the former. See United States v. Mann,
592 F.3d 779, 782 (7th Cir. 2010) (“The description of items to
be seized limits the scope of the search to areas where those
items are likely to be discovered.”). For example, a warrant to
search an RV for a handgun would necessarily permit a
search to extend to more areas than would a search for a refrigerator. But, in the second situation, it cannot be a constitutional violation to omit from the warrant application that it
was possible to limit the search to areas in the RV where a
refrigerator might be found: that possibility is apparent because it is necessarily implied by the specific identification of
the item sought. So too, here, Sgt. Grizzle identified the item
he was seeking and the area he was searching; thus, he need
not have stated that the search could be limited to her text
messages because, in representing that he sought a text message, he made such a possibility obvious. In other words, because he specifically identified what he was looking for and
where he was looking, Sgt. Grizzle made no culpable omission solely because he could have stated that it was possible
to search a more limited area.
B
In raising the foregoing argument, Socha’s real complaint
is about the breadth of the warrant, and we share her concerns. “The Fourth Amendment requires that warrants be
supported by probable cause and that they describe with
particularity the places and objects to be searched and
seized.” United States v. Vizcarra-Millan, 15 F.4th 473, 502 (7th
Cir. 2021). This particularity requirement ensures that a
search’s scope is supported by probable cause: that each area
sought to be searched is likely to yield evidence of the crime.
See id. Another limit on the scope of a warrant is the crime
under investigation, which “cabins the things being looked
for” to items that could be evidence of that crime. United States
v. Bishop, 910 F.3d 335, 337 (7th Cir. 2018). These principles
apply to searches of electronic devices, including computers,
Mann, 592 F.3d at 782, and cell phones, Bishop, 910 F.3d at 336–
37, which are like computers in function and storage capacity,
see Riley v. California, 573 U.S. 373, 393 (2014). Particularity is
of substantial importance in the context of cell phones (and
other, similar electronic devices) because, “[w]ith all they contain and all they may reveal, they hold for many Americans
‘the privacies of life.’” Id. at 403 (quotation omitted).
Given the stakes of cell phone searches, laid bare by what
happened to Socha, we remind police of their obligation to be
specific and explain why there is probable cause to search
every part of a cell phone they seek to search. The warrant
here, based on probable cause to search for a single text message, authorized searching “[a]ny and all data regarding electronic communications, including dates and times of those
communications, digital images or videos, e-mail, voice mail,
buddy lists, chat
more. This broad language would be proper if not for the fact
that officers knew exactly what evidence they were looking
for and, as a matter of common knowledge, where it might be
found: a single text message in her text history. Cf. Bishop, 910
F.3d at 336–38 (finding that a search warrant for “every file on
[the defendant’s] phone” was not problematically broad
because “police did not know where on his phone” the defendant kept the evidence, which included ledgers and videos).
Even if the search warrant was overbroad, though, we
conclude that Grizzle is entitled to qualified immunity.
Whether an officer protected by qualified immunity may be
held personally liable depends on the “objective legal reasonableness” of the conduct in light of clearly established law.
Messerschmidt v. Millender, 565 U.S. 535, 546 (2012) (quotation
omitted). If an officer acted with “objective good faith” in believing the scope of a warrant was supported by probable
cause, he cannot be held personally liable even if the warrant
was unconstitutionally overbroad. See id. (quotation omitted); see also id. at 546 n.1 (“[T]he same standard of objective
reasonableness” that applies in a suppression hearing, which
includes consideration of the officer’s good faith, “‘defines the
qualified immunity accorded an officer’ who obtained or relied on an allegedly invalid warrant.”) (quotation omitted).
Sgt. Grizzle—by conferring with a prosecutor before applying for the warrant and relying on the judge’s issuance of
the warrant—manifested an objective good faith belief that
the search warrant’s scope was supported by probable cause.
Before drafting the application, Sgt. Grizzle sought advice
from a prosecutor, Lamken, on what to include in it, and, before submitting, sent her the application for her review and
approval, which she provided. That is persuasive evidence
that Sgt. Grizzle held an objective good faith belief that the
scope of the warrant was supported by probable cause. Id. at
553 (The fact that an officer “sought and obtained approval of
the warrant application” from a prosecutor can support a
“conclusion that an officer could reasonably have believed
that the scope of the warrant was supported by probable
cause.”); Edmond v. United States, 899 F.3d 446, 456 (7th Cir.
2018) (same). The “clearest indication” of his objective good
faith is that a neutral magistrate issued the warrant. Millender,
565 U.S. at 546. And he can rely on that issuance to show his
good faith because the warrant was not “so lacking in indicia
of probable cause as to render official belief in its existence
unreasonable.” Taylor v. Hughes, 26 F.4th 419, 429 (7th Cir.
2022) (quoting Malley v. Briggs, 475 U.S. 335, 345 (1986)).
III
Turning to Socha’s intrusion upon seclusion claim, we review a grant of summary judgment de novo, viewing the facts
and drawing all reasonable inferences in favor of Socha, the
non-movant. Doe v. Gray, 75 F.4th 710, 716 (7th Cir. 2023).
Under Illinois law, to prevail on a claim of intrusion upon
seclusion, a plaintiff must show: “(1) the defendant committed an unauthorized intrusion or prying into the plaintiff’s seclusion; (2) the intrusion would be highly offensive or objectionable to a reasonable person; (3) the matter intruded on
was private; and (4) the intrusion caused the plaintiff anguish
and suffering.” Spiegel v. McClintic, 916 F.3d 611, 618–19 (7th
Cir. 2019) (quoting Busse v. Motorola, Inc., 813 N.E.2d 1013,
1017 (Ill. App. Ct. 2004))). To satisfy the first element, a plaintiff
must show the defendant “intentionally intrude[d].” Lawlor v.
N. Am. Corp. of Ill., 983 N.E.2d 414, 424 (Ill. 2012) (quoting Restatement (Second) of Torts § 652B (1977)). Because the City
argues that Det. McKinney accessed the photo while training,
it effectively concedes that he was acting within the scope of
his employment, so it is vicariously liable for his conduct, and
Socha can raise his actions to support her claim. Powell v. City
of Chicago, 197 N.E.3d 219, 223 (Ill. App. Ct. 2021).
The parties only dispute the first element—whether there
was an unauthorized, intentional intrusion—so we express no
opinion on whether the remaining elements were satisfied.
Socha’s claim fails if: (1) Det. McKinney was authorized to access the photograph; or (2) McKinney did not access the photograph intentionally. The district court concluded that this
claim failed because Det. McKinney opened the photograph
inadvertently. But Socha has presented enough evidence for
a jury to reject the City’s position that Det. McKinney was authorized and acted inadvertently, creating a genuine dispute
of material fact that renders summary judgment on this claim
inappropriate.
A
A defendant can show authorization by pointing to a state
or federal statute countenancing the intrusion, see Schmidt v.
Ameritech Ill., 768 N.E.2d 303, 313 (Ill. App. Ct. 2002)—but the
City has pointed to no statute authorizing Det. McKinney’s
conduct. The relationship between the intruder and the intruded-on party, such as employer-employee, can also provide authorization. See Mucklow v. John Marshall L. Sch., 531
N.E.2d 941, 946 (Ill. App. Ct. 1988). In other words, the intruder can be authorized if he is acting in a “proper capacity”
in committing the intrusion. Id. Or there can be authorization
because the intruded-on party voluntarily gave up the information to the intruder, and the intruder is merely accessing
its own records. See Dwyer v. Am. Express Co., 652 N.E.2d 1351,
1354 (Ill. App. Ct. 1995) (“We cannot hold that a defendant
has committed an unauthorized intrusion by compiling the
information voluntarily given to it and then renting its compilation.”). Illinois courts have also articulated a general principle, divined from the latter two bases for authorization, that
“an organization’s review of its own records is not an unreasonable intrusion upon seclusion.” Schmidt, 768 N.E.2d at 313.
The City argues that, because it, as an entity, was authorized to access Socha’s data pursuant to the search warrant, so
too was Det. McKinney because his intrusion, as the City’s
agent, was effectively just an organization reviewing its own
records. But the City’s position cannot be squared with its
own policy. The City assumes the relevant unit of analysis for
the authorization question is not the agent committing the intrusion (Det. McKinney), but the organization being sued (the
City). That cannot be the case when, as here, there is an explicit policy restricting access (and thereby authorization) to
certain agents within the organization. See Zahl v. Krupa, 850
N.E.2d 304, 312 (Ill. App. Ct. 2006) (An agent’s authority
arises solely from the “words and conduct of the alleged principal.”). Under JPD General Order 10-6, “[i]nvestigative case
files shall only be accessible to law enforcement personnel at
the discretion of the assigned investigator or an investigation
supervisor.” The existence of this policy belies the contention
that the
is no evidence of Sgt. Grizzle, the assigned investigator, or an
investigation supervisor ever giving Det. McKinney access to
Socha’s data such that he would be authorized under General
Order 10-6.
Det. McKinney, in being permitted access to Cellebrite
generally or for training specifically, could have been authorized to access Socha’s data—but the record does not put this
beyond dispute. There is evidence indicating that permission
to access Cellebrite is sufficient to authorize access of all data
therein. Det. German testified that Socha’s data on Cellebrite
was located where “nonauthorized people” could not access
it. This implies that those who, like Det. McKinney, were allowed to use Cellebrite were authorized to access Socha’s
data. The City also adduced evidence that Det. McKinney was
permitted, and even encouraged, to access any and all files on
Cellebrite during his training, so it could be that he was authorized to open Socha’s file because he was training. But
there is evidence to the contrary, demonstrating that Det.
McKinney had only limited authorization to access certain
files within Cellebrite that did not include Socha’s. Det.
Botzum attested that he had no way of securing Socha’s data
so “only authorized personnel” could access it, suggesting
that permission to access Cellebrite is not coextensive with authorization to access all the data contained therein. Det.
McKinney also remarked that he had his own file on Cellebrite containing data from cases in which he was involved.
So there is a suggestion that data he was authorized to access
was segregated from other data in Cellebrite and thus that he
was not authorized to access data beyond his folder. Simply,
the evidence points in both directions, indicating both authorization and lack thereof, creating a genuine dispute that a jury
must resolve.
B
No Illinois court has expressly identified a standard for
what constitutes an intentional intrusion. But given the Illinois Supreme Court’s reliance on the Second Restatement of
Torts in defining intrusion upon seclusion, the Restatement’s
definition of intent is a useful guide. It defines intent as when
an “actor desires to cause consequences of his act, or that he
believes that the consequences are substantially certain to result from it.” Restatement (Second) of Torts § 8A (1965).
Our sister circuits, applying this definition, have concluded that an actor commits an intentional intrusion if he
“believes, or is substantially certain, that he lacks the necessary legal or personal permission to commit the intrusive act.”
Dubbs v. Head Start, Inc., 336 F.3d 1194, 1221 (10th Cir. 2003)
(quoting Fletcher v. Price Chopper Foods of Trumann, Inc., 220
F.3d 871, 876 (8th Cir. 2000)); O’Donnell v. United States, 891
F.2d 1079, 1083 (3d Cir. 1989) (same). And courts in other
states that follow the Second Restatement describe intentional
intrusion similarly, if not identically. Parnoff v. Aquarion Water
Co. of Conn., 204 A.3d 717, 732 (Conn. App. Ct. 2019); see also
Mauri v. Smith, 929 P.2d 307, 311 (Or. 1996) (“[A]n actor commits an intentional intrusion if the actor either desires to cause
an unauthorized intrusion or believes that an unauthorized
intrusion is substantially certain to result from committing
the invasive act in question.”).
Accordingly, the question is whether Det. McKinney believed or was substantially certain that, by opening the photograph, he would be accessing Socha’s data without authorization. The City argues that Det. McKinney accessed the photograph
of his informal training on Cellebrite, was indiscriminately
browsing through investigative files on the Cellebrite computer to familiarize himself with the system and happened,
accidentally, upon Socha’s photograph.
But viewing the facts and drawing all reasonable inferences in Socha’s favor, as we must, there is a genuine dispute
regarding Det. McKinney’s intent. While the City may ultimately prevail, that is not the question at summary judgment.
Rather, we ask if there is sufficient evidence on which a reasonable jury could find for Socha. Parker v. Brooks Life Sci., Inc.,
39 F.4th 931, 936 (7th Cir. 2022). And a jury, faced with evidence diminishing the credibility of the City’s story, could reject the City’s narrative and conclude that Det. McKinney accessed Socha’s photograph intentionally.
First, the location where Socha’s data was saved could
suggest that Det. McKinney did not act inadvertently. Det.
Botzum saved Socha’s extraction in a file with a name that
was not identifiable with Socha, and he testified that the file
was saved where “no one should be able to find [it]” and
where “a normal person or a normal detective would not go.”
Det. McKinney may not have been a “normal detective” because he was not using Cellebrite to investigate a case; instead, he was perusing files in cases he was not assigned. But
the file being saved somewhere making it difficult to locate
diminishes the likelihood that Det. McKinney stumbled upon
it accidentally. In other words, to a reasonable jury, Det.
McKinney being able to find this hard-to-locate file suggests
that he was looking for it specifically, rather than simply perusing files aimlessly.
Second, the media folders in the Cellebrite system have
thumbnails previewing the contents of a file. So Det. McKinney may have seen that the media in the folder was Socha’s,
yet accessed the photograph anyway. Per his testimony, after
he opened Socha’s explicit photograph, Det. McKinney exited
out from it and then clicked on the next photograph which
showed her face. He noted that, before clicking on the next
photograph, there was a “small thumbnail” that “looked like
it had someone’s face.” Presumably, however, Det. McKinney
could see the thumbnails before he clicked on the explicit photograph. The thumbnails might have been too small for him
to identify the contents of the images precisely. But, at the
very least, it is a reasonable inference that Det. McKinney saw
previews of images indicating that the file contained Socha’s
data and therefore intentionally opened her photograph.
Last, and most damning to the City’s narrative, is Det.
McKeon’s testimony that, upon seeing the photograph, Det.
McKinney immediately assumed it depicted Socha without
any other identifying information. This statement is consistent with the foregoing evidence of the file’s hard-to-find
location and the thumbnails showing that the media in the
folder belonged to Socha. Even taken on its own, Det.
McKeon’s testimony is highly indicative that Det. McKinney
knew he was accessing Socha’s data before he opened the
photograph and thus did so intentionally.
While there are conceivable, innocent explanations for
why Det. McKinney assumed the photograph might be Socha’s, they are not ironclad, and a reasonable jury could reject
them. First, there were rumors of explicit material on Socha’s
phone. But Det. McKinney did not recall when he became
aware of these rumors. Thus, it is a reasonable inference that
he did not know of the rumors before viewing Socha’s photograph—and, if that is the case, the rumors could not explain
his assumption.
ongoing investigation of Socha involving a message from her
phone, which would explain why he presumed this extracted
phone data was Socha’s. But Det. McKinney could not recall
if he was aware of the investigation at the time he saw the
photograph. And, notably, Det. McKeon was not aware of the
investigation at the time, even though Sgt. Grizzle was his supervisor, suggesting not many JPD members knew of it. In
sum, while the City may ultimately explain why Det. McKinney assumed the naked torso was Socha’s, his assumption,
along with the evidence described above, suffices to raise a
genuine dispute as to Det. McKinney’s intent, rendering the
grant of summary judgment improper.
C
The City urges that it is immune from Socha’s intrusion
upon seclusion claim under the Illinois Local Governmental
and Governmental Employee Tort Immunity Act.
not liable for injury caused by any action of its employees that
is libelous or slanderous or for the provision of information
either orally, in writing, by computer or any other electronic
transmission ….”
immunize conduct that involves some dissemination of information. First, the Act explains that cities are immune for
providing information “orally, in writing, by computer or any
other electronic transmission,” so there must be some degree
of communication of information. Second, it refers to “libelous or slanderous” conduct, which requires publication for liability. Green v. Rogers, 917 N.E.2d 450, 459 (Ill. 2009).
By its own terms, then, the Act cannot apply here: Socha’s
intrusion upon seclusion claim does not require her to show
any “provision of information.” Rather, her claim depends
wholly on Det. McKinney accessing her information, not disseminating information. True, the Act has been applied to
provide immunity for invasion of privacy torts. See, e.g., Lo-
gan v. City of Evanston, No. 20-cv-1323, 2020 WL 6020487 (N.D.
Ill. Oct. 12, 2020). But courts have only applied the Act to privacy claims that require a plaintiff to show the defendant publicized, and thereby provided, information. For example, in
Ramos v. City of Peru, 775 N.E.2d 184 (Ill. App. Ct. 2002), an
Illinois court affirmed a finding that the Act rendered a city
immune to a false light invasion of privacy claim, id. at 188,
which requires giving sufficient publicity to information, Lov-
gren v. Citizens First Nat’l Bank of Princeton, 534 N.E.2d 987, 990
(Ill. 1989) (stating the elements of false light invasion of privacy). There is no such requirement or analogous requirement for an intrusion upon seclusion claim, so the Act is inapplicable to it.
IV
Having affirmed the dismissal of Socha’s
rejected the dismissal of her intrusion upon seclusion claim,
we briefly address the issue of supplemental jurisdiction. Socha’s
the court could exercise supplemental jurisdiction over her intrusion upon seclusion claim under
when, as here, “federal claims drop out of the case, leaving
only state-law claims, the district court has broad discretion
to decide whether to keep the case or relinquish supplemental
jurisdiction over the state-law claims.” Rongere v. City of Rock-
ford, 99 F.4th 1095, 1106 (7th Cir. 2024) (quotation omitted).
We trust the district court, on remand, to decide whether
to exercise supplemental jurisdiction over Socha’s intrusion
upon seclusion claim. See Williams Elecs. Games, Inc. v. Garrity,
479 F.3d 904, 906–08 (7th Cir. 2007) (affirming a decision to
relinquish supplemental jurisdiction over a state law claim remanded to the district court for a new trial after upholding
the dismissal of the federal claims). In making this determination, the court “should weigh the factors of judicial economy,
convenience, fairness, and comity.” Rongere, 99 F.4th at 1106.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED