Carroll v. Merrill Lynch et al, No. 12-1076.

On Thanksgiving Day at about 9:00 PM, Mary Carroll telephoned one of her co-workers, Jim Kelliher. Hearing Ms. Carroll loudly yelling at her husband over the phone, Jim Kelliher's wife Pat Kelliher began listening in on the call and decided to record the conversation. The call ultimately cost Carroll her job, and she sued under the Illinois eavesdropping statute for the recording and re-playing of the call.

The district court granted defendants' motion for summary judgment, concluding that the recording fell within the statute's fear of crime exemption. Because Ms. Carroll offers no evidence creating a genuine issue of material fact and defendants are entitled to judgment as a matter of law, we affirm.

In 2005, Mary Carroll and Jim Kelliher were co-workers at Merill Lynch. That same year, Ms. Carroll lodged a complaint with human resources that led to the firing of two other Merrill Lynch employees. In October 2005, Ms. Carroll felt that Jim Kelliher—who apparently was not involved with Carroll's previous human resources complaint—was performing some of her job duties.

Around 9:00 PM on Thanksgiving in 2005, Ms. Carroll called Jim Kelliher on his home phone to confront him about this perceived encroachment. As Carroll later admitted, she was "all riled up," "angry," and "enraged." She also described her behavior as "inappropriate[]" and "irrational[]," explaining to co-workers that she had "fucking snapped." Carroll even recognized the startling nature of her call, admitting that, if she had received a similar call, she would have felt "threatened."
 
Pat Kelliher overheard Carroll's loud accusations blaring from the phone. Becoming concerned, she began listening in on the phone call from another receiver in a different room. As Ms. Carroll's rant continued, Pat Kelliher became increasingly concerned and upset. She pushed the "record" button on her answering machine and recorded the rest of the call. When the call finally ended, Pat Kelliher told her husband, "I'm scared and I think we should call the police."

Despite Pat Kelliher's concerns, the Kellihers did not call the police that night. Jim Kelliher did call his supervisor at Merrill Lynch, though, and reported Ms. Carroll's phone call. The next day, at his supervisors' request, Jim Kelliher played the recording. After work that day, the Kellihers reported Carroll's call to the police.

Two months later, in January 2006, Ms. Carroll filed her own police report, accusing the Kellihers of violating the Illinois eavesdropping statute. The following month, Merrill Lynch fired Carroll for her conduct on the call, and she then filed this suit against Jim Kelliher, Pat Kelliher, and Merrill Lynch.

Illinois law prohibits recording a telephone conversation without the consent of all parties. 720 ILCS 5/14-2(a)(1). It also prohibits the subsequent use or dissemination of any information obtained through an unauthorized recording. Id. at § 2(a)(3).

The fear of crime exemption, however, allows unconsented recordings when: (1) the recording is made by or at the request of a person who is a party to the conversation; (2) under a reasonable suspicion that another party to the conversation is committing, is about to commit, or has committed a criminal offense against that person or a member of his or her immediate household; and (3) the recording may yield evidence of that criminal offense. Id. at § 3(i).

On appeal, Ms. Carroll principally challenges only the second element—whether Pat Kelliher had a reasonable suspicion to believe that Carroll was committing, was about to commit, or had committed a criminal offense against Pat Kelliher or someone in her immediate household.

The Illinois eavesdropping statute exempts certain recordings made with a reasonable suspicion that the caller is committing or may commit a crime against the person requesting the recording or someone in that person's immediate household. 720 ILCS 5/14-3(i). Thus, the exemption requires (1) a subjective suspicion that criminal activity is afoot, and (2) that the suspicion be objectively reasonable. Cf. People v. Allen, 950 N.E.2d 1164, 1177 (Ill. App. Ct. 2011). Pat Kelliher's fears arising from Carroll's conduct on the phone call satisfy both of these requirements.

First, Ms. Carroll continues arguing that Pat Kelliher feared, not commission of a crime, but rather that Carroll would report her dispute with Jim Kelliher to the human resources department at Merrill Lynch. Because such a report is not criminal, she argues, Pat Kelliher's recording falls outside the fear of crime exemption. But Ms. Carroll ignores Pat Kelliher's unrebutted testimony that she feared the caller might vandalize her home that night. Indeed, Carroll's call itself may have been criminal: Illinois criminalizes phone calls made "with intent to abuse, threaten or harass any person at the called number." 720 ILCS 135/1-1(2).

Next, Ms. Carroll launches a volley of arguments attacking the reasonableness of Pat Kelliher's fear. All agree—even Carroll—on the threatening and abusive nature of the call. Given this agreement, Pat Kelliher's fear of crime is reasonable. Carroll's own testimony establishes this: she acknowledges that she was "enraged," "all riled up," and had "fucking snapped"; and that she used profanity. These facts parallel McWilliams v. McWilliams, where the recorded individual made "repeated threats" and showed "aggression" against those who made the recording. No. 06 C 3060, 2007 WL 1141613, at *8 (N.D. Ill. Apr. 16, 2007).

Ms. Carroll next accuses Pat Kelliher of having "personal mental problems" that predispose her to "fearfulness," making her suspicion of crime unreasonable. Even assuming that psychological propensities do influence the reasonableness determination, Carroll offers no evidence that Pat Kelliher did, in fact, have personal mental problems predisposing her to fearfulness.

Finally, Ms. Carroll argues—for the first time in her reply—that the state's decision not to prosecute her for the phone call shows that Pat Kelliher's fear of crime was unreasonable. See Blount v. Stroud, 915 N.E.2d 925, 950 n.6 (Ill. App. Ct. 2009) (noting absence of prosecution for eavesdropping in concluding fear of crime exemption would likely apply). Because not raised in her opening brief, Ms. Carroll has waived this argument. See Dye, 360 F.3d at 751 n.7.

Even so, the exemption does not require proof beyond a reasonable doubt or even the probable cause required for arrest or indictment. Instead, it requires something far less—reasonable suspicion. See Terry v. Ohio, 392 U.S. 1, 27 (1968). Thus, that the district attorney did not charge Carroll with any crime—either telephone harassment or something else— does not preclude Pat Kelliher from reasonably believing that Carroll was committing or would commit a crime against Jim Kelliher.
 
Ultimately, the undisputed facts reveal that Pat Kelliher worried that the unidentified, threatening caller might commit a crime against her husband and that fear was reasonable. Thus, her recording satisfies the fear of crime exemption under the Illinois eavesdropping statute, and summary judgment for the defendants is proper.

For the foregoing reasons, we AFFIRM the district court's grant of summary judgment for defendants.

 
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