Walden v. CITY OF PROVIDENCE, RI

United States Court of Appeals
For the First Circuit

No. 08-1534

THOMAS WALDEN, et al.,

Plaintiffs, Appellees, Cross-Appellants,

v.

CITY OF PROVIDENCE, RHODE ISLAND, by and through its Treasurer,
STEPHEN NAPOLITANO; DAVID CICILLINE, in his official capacity as
Mayor and Acting Public Safety Commissioner for the City of
Providence; COLONEL DEAN ESSERMAN, in his official capacity as
the Chief of Police for the City of Providence,

Defendants, Appellants, Cross-Appellees.

No. 08-1535

THOMAS WALDEN, et al.,

Plaintiffs, Appellees, Cross-Appellants,

v.

MARY LENNON, individually and in her former official capacity as
the Chief of Operations of the Communications Department,

Defendant, Appellant, Cross-Appellee.

No. 08-1536

THOMAS WALDEN, et al.,

Plaintiffs, Appellees, Cross-Appellants,

v.

MANUEL VIEIRA, individually and in his former official capacity
as the Communications Director,

Defendant, Appellant, Cross-Appellee.
No. 08-2417

THOMAS WALDEN, et al.,

Plaintiffs, Appellees, Cross-Appellants,

v.

CITY OF PROVIDENCE, et al.,

Defendants, Appellants, Cross-Appellees.

APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND

[Hon. Lincoln D. Almond, U.S. Magistrate Judge]

Before

Lynch, Chief Judge,
Boudin, Circuit Judge, and Saylor,* District Judge.

Carolyn A. Mannis with whom Mark A. Fay was on brief for the
appellees/cross-appellants.
Kevin F. McHugh, Senior Assistant City Solicitor, with whom
Joseph M. Fernandez City Solicitor, and Michael A. Calise,
Assistant City Solicitor, were on brief for the appellants/cross-
appellees City of Providence, David N. Cicilline, and Dean
Esserman.
Peter J. Comerford with whom Coia & Lepore, Ltd. was on brief
for the appellant/cross-appellee Manuel Vieira.
Dean G. Robinson for the appellant/cross-appellee Mary Lennon.

February 23, 2010

*
Of the District of Massachusetts, sitting by designation.
 LYNCH, Chief Judge. In July 2004, two groups of current

and former employees of the Police and Fire Departments of the City

of Providence, Rhode Island, and their families, sued the City and

several City employees in their personal capacities. An automatic

recording system at the City's new Public Safety Complex

("Complex"), which housed the Police and Fire Departments, recorded

all telephone calls into and out of the Complex from the time the

telephone system began operating in May 2002 until February 2003.

Plaintiffs claimed these defendants were responsible for

putting the recording system in place and that the recording of the

calls violated their rights. Specifically, plaintiffs claimed the

recordings violated their Fourth Amendment rights under the United

States Constitution and Rhode Island's equivalent constitutional

provision, Article I, Section 6; the federal wiretap statute, 18

U.S.C. § 2511 et seq.; Rhode Island's wiretap laws, R.I. Gen. Laws

§§ 11-35-21, 12-5.1-13; and the state's privacy act, id.

§ 9-1-28.1. None of the defendants ever listened to any of the

plaintiffs' calls, nor do plaintiffs claim otherwise.

The first group of plaintiffs, the "Walden plaintiffs,"

consists of 116 current and former employees of the Providence Fire

Department who worked in the Complex and their family members. The

second group, the "Chmura plaintiffs," consists of nineteen current

and former civilian and sworn police officer employees of the

Providence Police Department who worked in the Complex. The two

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plaintiff groups brought suit together and were represented by the

same counsel.

The individual defendants were Manuel Vieira, Director of

the City's Department of Communications until February 2003, and

Mary Lennon, Chief of Operations in the Department of

Communications until February 2003. Urbano Prignano, who was Chief

of Police in Providence until his retirement on January 31, 2001,

was dismissed from the case following the presentation of

plaintiffs' evidence.1

Following a twenty-six-day trial in February and March

2008, a jury found defendants liable, and plaintiffs were awarded

over $1 million in damages and attorney's fees. The City, Vieira,

and Lennon now appeal, challenging, inter alia, the district

court's denial of their Fed. R. Civ. P. 50 motions for judgment as

a matter of law on qualified immunity and municipal liability, as

well as errors in the jury instructions and verdict forms.2

We find defendants are entitled to qualified immunity on

some claims, vacate the jury verdicts, and direct entry of an order

1
Also sued in their official capacities were the Mayor of
Providence, David Cicilline, and the City's Chief of Police,
Colonel Dean Esserman. We refer to them with the City of
Providence collectively as "the City."
2
Plaintiffs also cross-appeal, raising claims about the
district court's denial of prejudgment interest for the state
wiretap damages and its failure to require both the City and Vieira
each to pay the full damages amount, instead of treating the
damages as joint-and-several, under the state wiretap act.

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of dismissal with prejudice of all federal claims. As to the

pendent state claims, the state wiretap act claims against the City

are dismissed with prejudice. We dismiss without prejudice the

verdict under the state wiretap and privacy act against Vieira and

do the same as to the verdict under the privacy act against Lennon

and the City.

I.

To the extent relevant to the issues on review, we review

the facts of this case in the light most favorable to the jury's

verdict. Cruz-Vargas v. R.J. Reynolds Tobacco Co., 348 F.3d 271,

275 (1st Cir. 2003).

This case concerns the recording of calls at the City's

new Public Safety Complex, which opened in 2002 to house parts of

the City's Department of Public Safety. That department is run by

a City Commissioner and contains the Police Department, headed by

the Chief of Police; the Fire Department, headed by the Fire Chief;

and the Department of Communications, headed by a Director. See

City of Providence, Home Rule Charter ("Charter"), art. X, § 1001,

available at http://library8.municode.com/default-test/home.htm?

infobase=14446&doc_action=whatsnew. The Complex was built to

provide office space for the Commissioner, the Chief of Police, and

the Fire Chief, and their staffs, as well as to contain a police

station and a fire station.

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A. Policies and Practices as to Recording Calls before the
Complex Opened

Before the Complex opened, the City already recorded

calls made by public safety employees at the Emergency Operations

Center ("EOC") as a matter of policy. The EOC served both the

Police and Fire Departments but was physically separate from the

police and fire stations around the City; it would route emergency

calls to the relevant facility when required. Emergency calls and

responses, calls about information from the National Crime

Information Center and vehicle registry checks, and the talk-around

channel on the police radio frequency were all recorded through a

Dictaphone system at the EOC, covering fifteen to twenty lines in

all. EOC employees were informed when they began their jobs that

their conversations would be recorded and potentially reviewed.3

The EOC was not relocated to the new Complex.

Before the summer 2002 move to the Complex, the central

Police and Fire Departments were located at two separate facilities

within the City's old Public Safety Center. The telephone calls at

both of these facilities were not recorded.

The old telephone system for the police operated

differently than did the new system at the Complex. There was a

3
There was also a written policy that governed when
recorded calls could be listened to. This policy required parties
to fill out a written request to review a tape. This request then
had to be approved by both the Internal Affairs unit of the Police
Department and by Vieira: only then would employees of the
Department of Communications provide the requested recording.

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central station area where a desk sergeant sat and where clerks

answered telephone calls to the station. Some calls were routed

from the City's EOC; others were emergency and nonemergency calls

that came directly to the station. Some employees used the phone

for law enforcement and administrative work and had their own

telephone lines. Others used shared lines. Police Department

employees also regularly used the phones for personal calls.

The setup at the firefighters' old facility was

different. This facility contained telephones that could only be

used to make calls between the different fire stations. Emergency

calls were not routed to the station through the telephones but

rather through an intercom system that broadcast to everyone at the

station. There was also a separately installed telephone that the

firefighters themselves arranged with the telephone company and

paid for so that they could make personal calls while on duty at

the station.

B. The New Public Safety Complex

Construction and planning for the new Complex began more

than a year and a half before it opened. Among the intended

features of the Complex was a state-of-the-art telephone system,

with a number of functions, including call recording.

The specifications for this new telephone system,

including plans for a recording system, were discussed during

planning meetings. Members of the Police Department command staff

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attended these planning meetings, as did the Police Chief on

occasion,4 representatives from the Fire Department, the Finance

Department in City Hall, the Planning Committee, architects and

engineers, and defendant Vieira, who had been Director of

Communications since 1993. The meetings were held in the office of

the Commissioner of Public Safety, John Partington, who sometimes

attended as well.

It was decided at these meetings that the new Complex

should include a telephone system capable of recording calls to and

from the Police and Fire Departments. Attendees Vieira and Major

Dennis Simoneau, the commander of all uniformed police officers,

testified to several reasons for this decision. First, planners

wanted a system that could record emergency calls that came in on

lines other than 911 lines.5 Second, a recording system was needed

to enable monitoring of how public safety employees were handling

calls from the public, including on nonemergency lines, so that

citizen complaints about public safety officials' behavior on these

lines could be investigated. Third, the telephone system needed a

cost-accounting feature to reduce costs and prevent employees from

abusing their phones. Under the old system, public safety

employees' personal long distance calls and calls to sex lines cost

4
Prignano was Police Chief when planning for the Complex
began and attended some of the initial meetings.
5
For purposes of this opinion we use the word "line" and
the word "extension" interchangeably.

-8-
the City $5,000 to $6,000 a month. Fourth, the experience of New

York City's public safety officers following the terrorist attacks

on September 11, 2001, had underscored the desirability of a

redundant system that could, in the event that a component of the

communications system failed, maintain direct communication among

police, fire, hospital, and emergency response agencies, including

internal calls between lines on the system. This would include

backup for the recorded EOC system, necessitating recording at the

Complex.

With these parameters in mind, members of the City's

Department of Communications developed a request for proposals

("RFP") for the telephone system at the Complex so that the Board

of Contract and Supply could start the usual open process of

selecting a vendor through public bidding. Providence's Board of

Contract and Supply, chaired by the City's Mayor, is in charge of

awarding contracts for any City purchases above $5,000. Charter,

art. X, § 1007. Vieira approved the RFP and sent it to Alan Sepe,

Acting Director of the City's Department of Public Property. In

that capacity, Sepe was both a member of the Board of Contract and

Supply and the head of the department that shepherded the RFP

process for the City. The Board of Contract and Supply voted to

approve the RFP and publicly advertised it in August 2001. The RFP

stated that "[t]he Board of Contract and Supply will make the award

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to the lowest responsible bidder who submits [the] bid" and that

the Board also "reserves the right to reject any and all bid(s)."

Because the Department of Communications forgot to

include the request for a recording system in the RFP, Vieira, at

Sepe's behest, later requested in writing that the specifications

for the recording system also be put out to bid. A supplemental

RFP for the recording system was released on October 29, 2001,

without further involvement from Vieira, and was again made public.

On November 5, 2001, the Board of Contract and Supply

received six bids from various vendors, which the board initially

reviewed and made public. The bids were then forwarded to Vieira,

who consulted with his staff and discussed the bids with his

superior, the Commissioner of Public Safety, before making

recommendations.

On January 8, 2002, Vieira recommended to Sepe that the

City accept the proposal submitted by a company called Expanets,

because it "was the only vendor who met the requirements of the

RFP," namely the desired redundant backup and recording features.

The proposed recording system, Expanets' Total Recall system, was

capable of digitally recording and storing all inbound and outbound

calls on the telephone system. Expanets' bid also specified that

it and not the City would be responsible for implementing the

proposed system. The total cost of the bid, including both the

telephone system and the recording system, was $971,664.

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 Sepe immediately forwarded Expanets' proposal to the

Mayor with his own cover letter recommending that it be accepted.

After the Board of Contract and Supply, including Sepe and the

Mayor, publicly voted on the bid, Expanets was awarded the

contract. Sepe testified that he voted to award the contract to

Expanets because "they were the lowest responsible bidder that met

the specifications and could perform the services of the RFP."6

Vieira was not a member of the Board and could not vote to award

Expanets the contract.

The Expanets telephone system was installed at the

Complex by Expanets technicians and began operating on May 23,

2002. It also included the Total Recall system, which started

recording all phone lines that day, well before anyone had moved

into the building or begun using the phone lines.

The cost-accounting feature also began operating on that

date. Vieira testified that the Total Recall system was required

not only to record calls but also for the desired cost-accounting

feature to function, a fact plaintiffs disputed. The

cost-accounting and Total Recall systems were separate functions,

and the databases that stored the cost-accounting data and the

recordings were separate as well.

6
Plaintiffs' theory was that the competitive bidding
process was a sham and was designed to give the contract to
Expanets.

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 These functions had all been active for some time when

the occupants moved into the Complex in July and August 2002.

Specifically, the Total Recall system had been recording

approximately 690 lines, located throughout the Complex and

configured for the Police and Fire Department and their associated

staffs.

The phone lines recorded at the Police Department had a

range of configurations and uses. There was a central station area

with several shared lines, where a desk sergeant sat and several

clerks received emergency and nonemergency calls from the public.

Some police officers and administrative officials had their own

offices with individual phone lines, which they used to make calls

on both law enforcement and administrative matters. Finally, there

were also shared lines in shared office spaces used by Police

Department employees for police business. All of the testifying

Chmura plaintiffs said they also used these lines to make personal

calls.

On July 22, 2002, shortly after the Police Department

moved to the Complex, Major Simoneau e-mailed all sworn police

officers and civilian employees of the Police Department. He

informed recipients "that all lines in the new station" would be

recorded and employees should "speak professionally at all times."

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He also asked desk sergeants to "alert all of [their] clerks of

this fact," in case they did not receive the e-mail.7

Unlike the Police Department, the Fire Department did not

alert staff about the recording system. The recorded phone lines

at the Fire Department also had multiple configurations and uses.

There were individual lines for members of the departmental

leadership housed in the Complex. Several internal extensions were

installed to call other fire stations but did not permit external

calls. After relocating to the Complex in August 2002, plaintiff

Thomas Walden had the telephone company move to the new facility

the firefighters' personal telephone line, which they paid for and

used to speak with their families. Unlike in the old building,

where the telephone company had physically installed the separate

line, the personal line was routed through the Complex's telephone

system and into the telephones in the firefighters' space. When

the telephone company did this, the line was automatically recorded

by the Total Recall system.8

Soon after the move, Lennon and several technicians who

she supervised attended training sessions on the Total Recall

7
A copy of the e-mail was put into evidence, and
defendants provided three witnesses who testified they received it.
The Police Department plaintiffs testified they did not receive the
e-mail.
8
Defendants disputed whether this line was recorded.
Plaintiffs' expert testified it was recorded and we take that to be
true. It was also disputed whether defendants intended that the
personal line be recorded.

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system and were given system passwords along with a list of lines

recorded. In late July 2002, Vieira requested that his employees

remove ten telephone extensions from the recording system, and

Lennon received an e-mail informing her when the task was

completed. This was not done pursuant to a written policy; indeed

there was no written policy governing which lines were recorded or

removed from the system.9 Instructions to remove lines came

initially only from Vieira or his deputy. Among the twenty

extensions removed from the system during the system's operation

were lines to Vieira's own office and residence, the lines to his

deputy and to his administrative assistant, and the line to the

residence of the Police Chief.10

In January 2003, The Providence Journal asked the Fire

Department for recordings of 911 and interdepartment calls

regarding a drowning. Fire Department Chief Guy Lanzi consulted

with Senior Assistant City Solicitor John T. D'Amico about the

request, at which point D'Amico learned of the recordings for the

9
Although persons wishing to listen to recorded
conversations were required to fill out written requests, as had
been the practice with the Dictaphone system, Lennon, who was
responsible for retrieving the recorded conversations, testified
that she was not aware of a written policy governing when calls
captured by the Total Recall system could be listened to and did
not know if the written requests were reviewed by Internal Affairs.
10
Vieira's office was not physically located in the
Complex. However, the telephone system at the Complex was set up
so that employees could reach phones at these locations, among
others, by an internal extension, rather than getting an outside
line.

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first time. In a January 22, 2003 letter to Chief Lanzi, D'Amico

recommended an inquiry into which phone lines were being recorded

and warned that "[d]epending on circumstances (e.g., which

telephone is being recorded), the recording may be unlawful" and

"depending on the circumstances, if appropriate, [recording on

those lines] should be discontinued or the users notified."11

During these consultations, Fire Chief Lanzi learned that

his telephone line and other Fire Department leadership lines were

recorded. Lanzi directly contacted Anthony Desmarais, a technician

in the Department of Communications to request the lines be

removed. Soon thereafter, Desmarais removed the Fire Department

leadership's extensions from the recording system at the

instruction of Vieira.

In February 2003, the City's new Police Chief, Dean

Esserman, learned of the recordings, and on February 10, 2003, at

Esserman's order, the Total Recall System was completely

11
Vieira testified that, until this investigation, he was
unaware that the Total Recall system was recording any telephone
calls at the Complex beyond those into the central station. He
testified that his earlier instructions to employees were only to
remove lines from the cost-accounting system. These assertions
were expressly contradicted at trial by Department of
Communications employees, including Vieira's administrative
assistant and a technician responsible for removing lines from the
recording system. We accept plaintiffs' version but note that none
of this affects the City officials' assertion that they did not
intend to record the firefighters' personal line or know that the
line was being recorded.

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deactivated and stopped recording all lines at the Complex. On the

same day, Vieira and Lennon left their employment with the City.

A state investigation followed. The state Attorney

General's Office concluded that there was no evidence that any of

the calls recorded were listened to "without the consent of a call

participant or for a criminal, malicious, or non-business-related

reason." The Attorney General's Office further concluded that the

use of the Total Recall System fell within the "ordinary course of

business" exception to the state and federal wiretap statutes.12

Between May 2002 and February 2003, the Total Recall

system created and archived approximately 750,000 audio files of

recorded telephone conversations. Of these recordings, only three

were ever listened to and those calls are not at issue in this

case.13

12
Although the investigation and Esserman's order were not
permitted into evidence before the jury at trial, pursuant to a
motion in limine by defendants, these facts were raised and
considered on the defendants' motions for summary judgment, which
claimed qualified immunity and that there was no municipal
liability. The district court was also aware of them when making
its later rulings.
13
In one instance, the Fire Chief listened to a call to
determine how the Fire Department handled a potential drowning in
response to a complaint. Major Simoneau also listened to a call
about the towing of a car, this time in response to a complaint
about how the officer in charge of the towing had spoken to the car
owner on the phone. Finally, a City Councilman listened to a call
he had with a city employee to determine whether he had been
threatened by the employee.

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 II.

Plaintiffs filed a six-count complaint in the federal

district court in Rhode Island on July 20, 2004. Both the Walden

firefighter plaintiffs and the Chmura police plaintiffs alleged,

under 42 U.S.C. § 1983, that defendants violated their Fourth

Amendment rights under the United States Constitution and that

defendants violated their rights Rhode Island's equivalent

constitutional provision, Article I, Section 6. Plaintiffs also

claimed defendants violated Title III of the Omnibus Crime Control

and Safe Streets Act of 1968 ("federal wiretap act"), 18 U.S.C. §

2511. Finally, plaintiffs alleged the defendants violated two

state wiretap provisions, R.I. Gen. Laws §§ 11-35-21, 12-5.1-13,

and the state's privacy act, id. § 9-1-28.1. Plaintiffs sought

attorney's fees for all counts.

After extensive discovery, defendants filed motions for

summary judgment on September 14, 2006, claiming that they had not

violated plaintiffs' rights, that individual defendants were

entitled to qualified immunity, that municipal defendants could not

be liable under Monell v. Department of Social Services, 436 U.S.

658 (1978), and that any recording that did take place was not

illegal under federal and state statutes.

On July 6, 2007, the district court denied defendants'

motions for summary judgment. It held that there were genuine

issues of material fact as to whether the individual defendants

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were liable for Fourth Amendment violations and denied individual

defendants' claims of qualified immunity. Walden v. City of

Providence, 495 F. Supp. 2d 245, 255-58, 267-70 (D.R.I. 2007).

Specifically, the court found there was a clearly established

general right of privacy in phone conversations, and that no

reasonable government official could have concluded at the time

that their actions were permissible. Id. at 267-70. It also held

that the City could face municipal liability because Chief of

Police Prignano was a final policymaker whose actions could be

attributed to the City and a genuine question existed as to his

liability. Id. at 267-70. For similar reasons, the district court

concluded that there were genuine issues with regard to the claim

under the federal wiretap act14 and rejected the City's argument

that municipalities could not be liable under the act. Id. at 261-

62, 265-66. Finally, the court concluded that plaintiffs could

proceed on their pendent state law claims. Id. at 270-71.15

The jury trial started on February 13, 2008. Plaintiffs

presented evidence for twenty-one days, with the Walden firefighter

14
The district court held that whether defendants fell
under the "ordinary course of law enforcement" exception to the
act, 18 U.S.C. § 2510(5)(a)(ii), could only be determined based on
facts developed at trial. Id. at 263.
15
On January 3, 2008, the parties consented to proceed
under the jurisdiction of a magistrate judge, pursuant to 28 U.S.C.
§ 636(c). The case was accordingly reassigned.

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plaintiffs going first and the Chmura police plaintiffs second.

Nearly all plaintiffs in both groups testified.

Plaintiffs' case, as presented, was that defendants were

responsible for illegally recording all calls that the Walden and

Chmura plaintiffs had made and received from the Complex.

Plaintiffs' counsel underscored in his opening argument that all of

plaintiffs' claims centered on defendants' recording of all their

calls, not on the theory that anyone ever listened to the

recordings. Plaintiffs asserted in their individual testimony that

they had an expectation of privacy as to all calls that they made,

whether they were emergency calls, calls involving other police or

firefighter business, or personal calls. Counsel's closing again

cited the recording of all of plaintiffs' calls as defendants'

unlawful conduct.

Plaintiffs also framed their specific legal claims around

this proposition. Plaintiffs' Fourth Amendment, Rhode Island

Constitution, and state privacy act claims all turned on the theory

that plaintiffs had a general right of privacy in all phone

conversations at the Complex. They did not differentiate between

the police and firefighter groups or make particularized arguments

about individual expectations of privacy within those groups.

Their state wiretap act claims similarly asserted that defendants

could not legally record any of plaintiffs' calls, regardless of

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whether the calls involved emergency calls, law enforcement

matters, or personal calls.

Likewise, the court's initial statements to the jury

referred to the claim that the recording of all calls violated

various laws. The court made no distinctions between emergency

calls, calls from the public regarding police business that the

City might wish to monitor in order to respond to complaints, or

personal calls. Nor did it otherwise distinguish between types of

calls or callers.

At the close of plaintiffs' case, all three defendants

made motions for judgment as a matter of law under Fed. R. Civ. P.

50(a). The individual defendants argued that they were entitled to

qualified immunity, that they fell within the exceptions to the

wiretap statutes, and that plaintiffs' evidence failed to meet

their burden of proof. Additionally, the City argued that

plaintiffs could not establish municipal liability because the

decision to install and implement the recording system was not

taken by a final policymaker and the wiretap statutes did not apply

to municipalities.

The court reserved ruling until later in the trial on

Vieira's, Lennon's, and the City's motions. It dismissed the

claims against Police Chief Prignano. It nonetheless concluded

that this did not require it to grant the City's Rule 50 motion,

even though the court had previously identified Prignano as a final

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policymaker whose decisions could be attributed to the City.

Instead, the court held as a matter of law that now Vieira was the

City's final policymaker for the decision to install and implement

the Total Recall recording system and that the City was responsible

for his actions.

Defendants then presented their case. Their basic theory

was that the Total Recall system, along with the rest of the

telephone system, was installed to address legitimate law

enforcement and cost-accounting needs. Defendants argued that they

never intended to record all calls at the Complex. They emphasized

that at least the police plaintiffs had been notified of the

recordings and that defendants did not intend to record the

firefighters' personal line, which they said had been installed at

the Complex without the defendants' knowledge or involvement.

Defendants also pointed to plaintiffs' failure to provide

evidence as to any specific calls that were recorded. They said

that plaintiffs' assertion that their rights were violated simply

because they used the telephone system was insufficient and that

plaintiffs needed to introduce evidence about specific calls.

Defendants also criticized plaintiffs' failure to make a

particularized case as to plaintiffs' expectations of privacy,

since each plaintiff made calls under different circumstances and

their expectations of privacy would have varied.

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 Following their presentation of evidence, defendants

renewed their Rule 50 motions. On the same day, the court required

plaintiffs to elect whether to proceed to a jury verdict on the

state or federal wiretap claims.16 Plaintiffs, relying on previous

rulings that damages were mandatory under the state statute but

discretionary under the federal one, elected to proceed under state

law.

Before the jury was charged on March 24, 2008, defendants

objected to the jury instructions and the proposed verdict form.

The court overruled their objections. The court's instructions to

the jury again referred to defendants' recording of all of

plaintiffs' calls in and out of the Complex. The instructions made

no effort to exclude or distinguish emergency calls or calls from

the public regarding police business that the City might wish to

monitor. Nor did the instructions distinguish among different

types of calls when describing potential defenses. The

instructions also did not indicate to the jury whether it could

treat the firefighters' personal line separately.

16
The court did so pursuant to a November 2007 order on the
defendants' motions in limine on damages, in which the district
court had held that because the federal and state wiretap claims
were parallel and would lead to duplicative damages, plaintiffs
were required at the close of trial to elect whether to seek
damages afforded by 18 U.S.C. § 2520 or those afforded by R.I. Gen.
Laws § 12-5.1-13. Walden v. City of Providence (Walden I), Nos.
04-304A, 04-553A, slip op. at 3 (D.R.I. Nov. 30, 2007).

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 The jury received separate verdict forms for the Walden

firefighter plaintiffs and the Chmura police plaintiffs. Both

forms also presented plaintiffs' claims broadly and did not permit

the jury to differentiate between the types of calls each plaintiff

made or received.17

On March 26, 2008, the jury found against Vieira and the

City on all counts, and against Lennon on the constitutional and

privacy act claims. Each plaintiff in both plaintiff groups was

awarded $1 in nominal damages for the constitutional claims, as

well as $1 for the privacy act claim and $1 for one of the state

wiretap claims, R.I. Gen. Laws § 11-35-21. One dollar in punitive

damages was also awarded to each plaintiff for the constitutional

violations, to be paid only by Vieira and Lennon.

Vieira and the City were also ordered, jointly and

severally, to pay statutory damages of $100 to each plaintiff for

every day on which the plaintiff made telephone calls that were

recorded, pursuant to one of the state wiretap act claims, id.

§ 12-5.1-13(a). The jury found that all of the Chmura police

17
Specifically, on the constitutional and privacy act
claims, the forms simply asked the jury whether each defendant had
violated all plaintiffs' rights within that group. On the wiretap
act claims, the forms required the jury to find for all plaintiffs
and against each defendant if the defendant had intercepted "any of
[p]laintiffs' telephone calls." The same was true of the jury
forms' presentation of the defendants' defense that the calls were
in the course of law enforcement work, which only allowed the jury
to find for all plaintiffs or all defendants. We describe these
forms in greater detail below.

-23-
plaintiffs and some of the Walden firefighter plaintiffs had their

calls intercepted, but also concluded that seventy-one of the

Walden plaintiffs, including all of the firefighters' family

members, could not establish their calls were recorded on any day.

Statutory damages under this count amounted to $526,700. As the

prevailing party under 18 U.S.C. § 1988, plaintiffs were also

awarded attorney's fees and costs, totaling $539,452.37.18 Walden

v. City of Providence (Walden III), Nos. 04-304A, 04-553A, slip op.

at 1 (D.R.I. Oct. 15, 2008). Defendants timely renewed their Rule

50 motions after the verdict, pursuant to Fed. R. Civ. P. 50(b).

On May 15, 2008, the court denied defendants' Rule 50

motions. It declined to reconsider its finding that Vieira was a

final policymaker for purposes of the City's municipal liability.

Walden v. City of Providence (Walden II), Nos. 04-304A, 04-553A,

slip op. at 14-17 (D.R.I. May 15, 2008). It also denied qualified

immunity to Lennon and Vieira, ruling that "no reasonable official"

could have concluded that the recordings were permissible. Id. at

18-19.

Defendants now appeal the denial of their summary

judgment and Rule 50 motions on qualified immunity, municipal

18
Plaintiffs sought attorney's fees and costs under federal
law, 18 U.S.C. § 1988, Fed. R. Civ. P. 54(d), D.R.I. Local Rule
54.1, and the state wiretap and privacy acts, R.I. Gen. Laws §§ 12-
5.1-13, 9-1-28. Although the district court only analyzed the
claim under federal law, plaintiffs claimed at oral arguments they
were also entitled to fees on state law grounds.

-24-
liability, and the applicability of the wiretap statute to the City

as a municipality and to all three defendants. They also claim

error in several of the district court's evidentiary rulings, its

jury instructions and verdict forms, and rulings on attorney's

fees. Defendant Lennon further claims that the verdict was

inconsistent and that the evidence was insufficient to find her

liable.

III.

A. Appeals from Verdicts for Plaintiffs on U.S. Constitution
Fourth Amendment Claims

1. Qualified Immunity for Defendants Vieira and Lennon

We first consider whether Vieira and Lennon were entitled

to qualified immunity. The defendants have preserved their

objections to the district court's denial of immunity. Plaintiffs

do not seriously contend otherwise.19

Our review of the denial of qualified immunity is de

novo. Guillemard-Ginorio v. Contreras-Gómez, 585 F.3d 508, 525

(1st Cir. 2009). To the extent it is relevant, we review the

evidence in the light most favorable to the jury's verdict. Id.

We conclude the court erred in denying the individual defendants

qualified immunity.

19
Plaintiffs argue that the individual defendants abandoned
any claim to qualified immunity when they failed to take an
interlocutory appeal from the denial of the summary judgment
motion. That is plainly incorrect. See Wilson v. City of Boston,
421 F.3d 45 (1st Cir. 2005); Iacobucci v. Boulter, 193 F. 3d 14, 23
(1st Cir. 1999).

-25-
 Officials are entitled to qualified immunity unless (1)

"the facts that a plaintiff has alleged or shown make out a

violation of a constitutional right" and (2) "the right at issue

was 'clearly established' at the time of [their] alleged

misconduct." Pearson v. Callahan, 129 S. Ct. 808, 816 (2009).

The Supreme Court has given this second prong two

aspects. The first is whether, based on the "clarity of the law at

the time of the alleged civil rights violation," "'[t]he contours

of the right . . . [were] sufficiently clear that a reasonable

official would understand that what he is doing violates that

right." Maldonado v. Fontanes, 568 F.3d 263, 269 (1st Cir. 2009)

(quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). The

second aspect is whether, based on the "facts of the particular

case," a "reasonable defendant would have understood that his

conduct violated the plaintiffs' constitutional rights." Id.

Qualified immunity generally protects "all but the plainly

incompetent or those who knowingly violate the law." Malley v.

Briggs, 475 U.S. 335, 341 (1986).

Courts need not address these questions in order.

Pearson, 129 S. Ct. at 818; Maldonado, 568 F.3d at 269-70. We turn

to the second part of the test and specifically whether the right

in question was so clearly established as to give notice to

-26-
defendants that their actions were unconstitutional in 2002.20 This

is a question of pure law.

This question must be resolved based on the state of the

law at the time of the alleged violation. See Brousseau v. Haugen,

543 U.S. 194, 198 (2004). Further, "this inquiry 'must be

undertaken in light of the specific context of the case, not as a

broad general proposition,'" id. (quoting Saucier v. Katz, 533 U.S.

194, 201 (2001)), and "[t]he relevant, dispositive inquiry . . . is

whether it would be clear to a reasonable officer that his conduct

was unlawful in the situation he confronted." Saucier, 533 U.S. at

201 (emphasis added).

Thus, the relevant question in this case is not whether

in 2002 the Fourth Amendment generally prohibited the recording of

telephone calls. The question is whether, in 2002, public safety

employees, like plaintiffs, had a clearly established right under

the Fourth Amendment not to have calls made at work recorded.

We hold there was no such clearly established law. There

were no Supreme Court cases, no "cases of controlling authority in

[plaintiffs'] jurisdiction at the time of the incident," and no

"consensus of cases of persuasive authority" showing that

plaintiffs' asserted Fourth Amendment rights were clearly

20
Since plaintiffs elected not to pursue their remedies
under the federal wiretap act, 18 U.S.C. § 2510 et seq., we need
not reach the question of whether the qualified immunity doctrine
may be used in defense to a claim under that statute.

-27-
established in 2002. Wilson v. Layne, 526 U.S. 603, 617 (1999)

(holding that where none of these sources had relevant supporting

precedent, the asserted right was not "clearly established"); see

also Brady v. Dill, 187 F.3d 104, 116 (1st Cir. 1999).

In 2002, there was no Supreme Court precedent that

addressed whether defendants' particular conduct violated the

Fourth Amendment. Plaintiffs rely heavily on Katz v. United

States, 389 U.S. 347 (1967), which held that the Fourth Amendment

generally requires the government to obtain prior judicial sanction

before recording calls from a public telephone booth. Id. at

355-59. They likewise cite O'Connor v. Ortega, 480 U.S. 709

(1987), which merely held that an employee had a reasonable

expectation of privacy in his office desk and file cabinets that he

did not share with other employees. Id. at 718. Neither of these

cases address public safety employees' expectations of privacy at

work, and neither can be construed to show that defendants'

particular conduct was unlawful. This is precisely the kind of

"high level of generality" that the Court has held insufficient,

Brousseau, 543 U.S. at 200, particularly given the Court's

recognition that an individual's expectation of privacy varies

within different parts of the workplace and depending upon the

nature of his or her work. See O'Connor, 480 U.S. at 716-17.

-28-
 Nor had any First Circuit case held as of 2002 that the

Fourth Amendment was violated if police and fire public safety

employers recorded all calls to and from their employees' offices.

There was also no clear consensus among other circuit

courts. Indeed, this lack of consensus was explicitly recognized

by the one court of appeals to squarely address a factual situation

similar to the case at hand. In that case, Blake v. Wright, 179

F.3d 1003 (6th Cir. 1999), the Sixth Circuit held that a police

chief was entitled to qualified immunity for his implementation of

a system that recorded almost all personal, emergency, and

administrative calls at a police station without the police

employees' knowledge. It so held because the unconstitutionality

of these recordings was not clearly established as a matter of law.

Id. at 1010-11.21 This certainly would not have informed the

21
There was one circuit opinion, Abbott v. Village of
Winthrop Harbor, 205 F.3d 976 (7th Cir. 2002), in which a jury
found under § 1983 against a police chief and village that recorded
police officers' calls. Id. at 977. However, in that case,
plaintiffs argued only that the recording of their personal line,
and not the emergency and office lines at the station, violated
their Fourth Amendment rights. Id. Moreover, plaintiffs' claim of
a reasonable expectation of privacy on their personal line in that
case was based upon the police chief's initial exclusion of the
personal line from the recording system, his explicit announcement
to all officers that the personal line would not be recorded, and
his subsequent, secret decision to begin recording the personal
line for personal reasons unrelated to police work. Id. at 978-99.
Because the police chief did not appeal, the court did not discuss
qualified immunity at all, let alone whether plaintiffs' rights in
this context were clearly established.
In October 2002, another circuit court upheld a jury verdict
that a police officer's Fourth Amendment rights had been violated
when a specific call he made to his wife was recorded and listened

-29-
individual defendants that their specific conduct violated the

Fourth Amendment.

Moreover, other circuits' precedents in a line of cases

under Title III of the federal wiretap act would have led

reasonable officials to conclude that recording all calls into and

out of a police station was neither illegal nor unconstitutional.

If under Title III law the defendants could have

concluded their actions were not illegal, then they could

reasonably have concluded it was not clearly established that the

same actions would violate the Constitution. Congress enacted

Title III in response to Katz, see Bartnicki v. Vopper, 532 U.S.

514, 523 (2001), and in doing so attempted to provide at least as

much protection as the Constitution affords. See Mitchell v.

Forsyth, 472 U.S. 511, 531-32 (1985); Dalia v. United States, 441

U.S. 238, 256 n.18 (1979). Further, Title III statutory

requirements are relevant to the question of what public safety

employees' reasonable expectations of privacy were.22

to. Zaffuto v. City of Hammond, 308 F.3d 485, 488-89 (5th Cir.
2002). There, the violation was not recording lines as a general
matter, but instead that his particular call was accessed and
reviewed. Id. The court also made no finding as to qualified
immunity. Id.
22
To the extent that the district court relied on disputes
over the degree of notice of the recordings that defendants gave to
plaintiffs to deny immunity, it erred. There was no clearly
established law that explicit notice to employees of recording was
required in police offices and some law pointed the other way.
Amati v. City of Woodstock, 176 F.3d 952, 955 (7th Cir. 1999).

-30-
 The lead Title III case that defendants relied on for

their immunity claims is Amati v. City of Woodstock, 176 F.3d 952

(7th Cir. 1999). There, the court upheld a jury finding that a

police department's practice of recording all calls on a line used

by employees for both personal and business calls was not a

violation of Title III. Id. at 955-56. The court held that the

calls fell within the exception for recording "by an investigative

or law enforcement officer in the ordinary course of his duties."

Id. at 954-55. The court found "[i]t is routine, standard, hence

'ordinary' for all calls to and from the police to be recorded,"

because the "calls may constitute vital evidence" and can be used

to "evaluate[] the speed and adequacy of the response of the police

to tips, complaints, and calls for emergency assistance." Id. at

954. The Amati court further explained it was "irrelevant" whether

personal calls on a police department's lines were recorded,

holding that "if all the lines are taped, as is the ordinary

practice of police departments, then the recording of personal as

well as of official calls is within the ordinary course." Id. at

956.

Other courts had also taken the view before 2002 that

"the routine and almost universal recording of phone lines by

police departments . . . as well as other law enforcement

institutions is exempt from the [federal wiretap statute]" and the

practice of "routinely and indiscriminately record[ing] all phone

-31-
activity in and out of the police department" is "well known in the

industry and in the general public." Adams v. City of Battle

Creek, 250 F.3d 980, 984 (6th Cir. 2001); see also Abraham v.

County of Greenville, 237 F.3d 386, 391 (4th Cir. 2001)

(recognizing "the County's need to monitor for law enforcement

purposes calls relating to Detention Center inmates and

employees"); First v. Stark County Bd. of Comm'rs, No. 99-3547,

2000 WL 1478389, at *4 (6th Cir. 2000) (holding the routine

recording of all conversations in a sheriff's office dispatchers'

department was protected by Title III's law enforcement provisions

and dismissing plaintiffs' constitutional claims).

We need not address the jury's verdict. This is an issue

of law on which the district court erred. The individual

defendants are entitled to judgment on the basis of qualified

immunity.

2. Municipal Liability for the Fourth Amendment Claims Against
City of Providence

This leaves the City's Rule 50 motion on the Fourth

Amendment claims against it.23 The City says there is no municipal

liability for the recordings because plaintiffs' calls were not

recorded pursuant to any official policy or custom. This issue was

23
Unlike individual defendants, municipalities are not
entitled to qualified immunity. Our finding that Vieira and Lennon
are entitled to such immunity does not dispose of the issue of
municipal liability. Owen v. City of Independence, 445 U.S. 622,
638 (1980).

-32-
preserved. We review de novo. Valentin-Almeyda v. Mun. of

Aguadilla, 447 F.3d 85, 95-96 (1st Cir. 2006). We hold, contrary

to the district court, that the City was entitled to judgment as a

matter of law.

Municipal defendants may be held liable under § 1983 for

actions taken pursuant to an official policy or an official custom

that violated the Constitution. Monell, 436 U.S. at 694; Young v.

City of Providence, 404 F.3d 4, 26 (1st Cir. 2005). "A plaintiff

can establish the existence of an official policy by," inter alia,

"showing that the alleged constitutional injury was caused . . . by

a person with final policymaking authority." Welch v. Ciampa, 542

F.3d 927, 941 (1st Cir. 2008) (internal citations omitted).

Whether an official is a final policymaker is also a

question of law for the trial judge to decide.24 Jett v. Dallas

Indep. Sch. Dist., 491 U.S. 701, 737 (1989). This determination

requires a showing that "a deliberate choice to follow a course of

action [was] made from among various alternatives by the official

or officials responsible for establishing final policy with respect

to the subject matter in question." Pembaur v. City of Cincinnati,

475 U.S. 469 (1986) (plurality opinion); see also Wilson, 421 F.3d

at 59-60 (applying this test).

24
The district court's instructions to the jury make clear
that the finding of municipal liability rested on the court's
ruling that Vieira was a final policymaker. Plaintiffs did not
argue that there was some other policymaker.

-33-
 Whether an official has this requisite level of specific

policymaking authority is a matter of state law. Jett, 491 U.S. at

737. Courts must look to state law, including "valid local

ordinances and regulations," for descriptions of the duties and

obligations of putative policymakers in the relevant area at issue.

City of St. Louis v. Praprotnik, 485 U.S. 112, 125 (1988)

(plurality opinion). This does not mean that we look simply to

state law labels to determine whether an official is a final

policymaker, "[b]ut our understanding of the actual function of a

governmental official, in a particular area, will necessarily be

dependent on the definition of the official's functions under

relevant state law." McMillian v. Monroe County, 520 U.S. 781, 786

(1997). This, too, is a question of law for the judge to decide.

Plaintiffs argue, and the district court agreed, that

Vieira was a final policymaker with respect to the decisions to

procure and implement the Total Recall system. They say that

Vieira was responsible for the RFP and the actual decision to award

Expanets the bid. They also say that he had final authority with

regards to how the system was implemented. We reject these

arguments and hold that Vieira was not a final policymaker in this

case.

Both as a matter of state law and in practice, Vieira did

not have final policymaking authority over the decision to procure

the recording system and award Expanets the bid.

-34-
 The City Charter clearly states that the Board of

Contract and Supply, not the Department of Public Safety or its

officials, is the department with "responsibility . . . [t]o make

all contracts for purchase of materials, supplies, services,

equipment and property on behalf of the city, the price or

consideration of which shall exceed five thousand dollars."25

Charter, art. X, § 1007(c)(1). Moreover, the Board controls key

aspects of the bidding process, since bids are "to be submitted,

opened and considered in accordance with rules and regulations

approved by the board." Id. The Board also has total discretion

"[t]o reject any or all bids submitted to it for a specific

purpose" if, in its judgment, "the public interest will be best

served thereby." Id. § 1007(c)(3).

Although the Commissioner of Public Safety has, through

the Director of Communications, responsibility for the

"procurement, installation, and proper operation" of "all municipal

radio, television, teletype and other associated equipment," id. at

§ 1001(c), this procurement function is constrained by the Board of

Contract's control over the bidding process. The Department of

Public Safety can, through the Director of Communications,

25
While the Board's members include the Commissioner of
Public Safety, its total membership also includes the Mayor and ten
other departmental heads and senior city officials. It does not
include the Director of Communications. Charter, art. X, § 1007.
Moreover, the Mayor has general authority "[t]o supervise, direct
and control the activities of all departments and agencies of city
government." Id. art. III, § 302(a).

-35-
influence the general substantive parameters of an RFP in these

areas, but it cannot, by law, control which vendor ultimately

receives the award.

The Board of Contract and Supply, not Vieira, was also

responsible in practice for all of the relevant decisions involved

in awarding Expanets the bid to install its telephone system,

including Total Recall, in the Complex. Uncontested testimony at

trial showed that Vieira was one voice among many during the

planning meetings and did not single-handedly set the desired

parameters for the Complex phone system himself. Although Vieira

used those parameters to create the RFP he sent to Alan Sepe, the

Acting Director of the Department of Public Property, Vieira did

not have final policymaking authority over the RFP. It was only

adopted after the Board of Contract and Supply reviewed it and

voted on it, and Vieira was not a member of that body.

Nor did Vieira have final policymaking authority over the

decision to award Expanets the bid. The RFP itself clearly stated

that the Board of Contract and Supply had decisionmaking authority

and that the ordinary practice was to award the bid to the "lowest

responsible bidder" who met the RFP's specifications. Expanets

only received the bid after the Board of Contract and Supply,

pursuant to the City Charter, voted to do so.

Plaintiffs claim, and the district court held, that

Vieira was nonetheless the final policymaker because he recommended

-36-
to the Commissioner of Public Safety and Sepe that Expanets' bid be

accepted and both of them deferentially reviewed his

recommendation. That conclusion is contrary to the relevant law.

"Simply going along with discretionary decisions made by one's

subordinates . . . is not a delegation to them of the authority to

make policy." Praprotnik, 485 U.S. at 130. It also ignores the

fact that the Board of Contract and Supply ultimately voted to

award the bid, and there is no argument that the board did not

independently review the merits of Expanets' proposal.

As a matter of state law and in practice, Vieira also

lacked final policymaking authority over the implementation of the

Total Recall system. The Charter makes clear that the Director of

Communications's authority is subsidiary to the Commissioner of

Public Safety, who heads the Department of Communications and is

ultimately "responsible, through the [D]irector of

[C]ommunications, for the complete operation of the department

. . . and for the design, procurement, installation and proper

operation of all the equipment under its jurisdiction." Charter,

art. X, § 1001(c)(2). "[W]hen a subordinate's decision is subject

to review by the municipality's authorized policymakers, [the

policymakers] have retained the authority to measure the official's

conduct for conformance with their polices." Praprotnik, 485 U.S.

at 127.

-37-
 Vieira also did not have final policymaking authority

over the implementation of the Total Recall system in practice.

All indications suggest the Total Recall system was activated by

Expanets technicians in May 2002 immediately after its installation

and pursuant to Expanets' contract with the City. Vieira was also

not a final policymaker with respect to the decision to shut the

system down. Rather, Police Chief Esserman, when he learned of the

system, unilaterally ordered it shut down, apparently without

having to consult with Vieira.

There was also no custom or practice for which the City

could be held liable, and to the extent the jury's finding of

liability rested on that theory, a reasonable person could not have

reached that conclusion. Visible Sys. Corp. v. Unisys Corp., 551

F.3d 65, 71 (1st Cir. 2009). To find municipal liability, we have

required that the custom or practice "be so well-settled and

widespread that the policy making officials of the municipality can

be said to have either actual or constructive knowledge of it yet

did nothing to end it." Bisbal-Ramos v. City of Mayagüez, 467 F.3d

16, 24 (1st Cir. 2006) (quoting Silva v. Worden, 130 F.3d 26, 31

(1st Cir. 1997)) (internal quotation marks omitted).

The recordings in this case were neither so widespread

nor so well-settled as to be a custom or practice. They occurred

at a single building and for a period of eight months. This was

different from the City's otherwise-established practice of not

-38-
recording calls except pursuant to the policy at the EOC. Nor did

plaintiffs show the City's policymaking officials had constructive

knowledge of it and yet did nothing to end it. Indeed, when Fire

Chief Lanzi learned of it, he had his own telephone lines removed,

while Police Chief Esserman, on learning of the recordings, had the

Total Recall system shut down. Plaintiffs presented no evidence

any other officials knew of the recordings. Nor on appeal do

plaintiffs point to any evidence presented that showed a policy or

custom was established.

The City is entitled to judgment on the Fourth Amendment

claims.

B. State Constitutional Claims

The district court treated the defendants' liability

under the state constitutional claims as identical to their

liability under the federal constitutional claims. The plaintiffs

did not object at trial and do not challenge this approach on

appeal. We hold they have waived any objection to disposing of

their state law claims based on the disposition of their federal

constitutional claims, and judgment must be entered for all

defendants26 on the state constitutional claims as well.

26
Because we have granted qualified immunity under § 1983,
there is no reason to believe the defendants are not also entitled
to qualified immunity on state constitutional claims. Rhode Island
law recognizes qualified immunity. Ensey v. Culhane, 727 A.2d 687,
690-91 (R.I. 1999); see also Hatch v. Town of Middletown, 311 F.3d
83, 90 (1st Cir. 2003).

-39-
C. Pendent State Statutory Claims

Plaintiffs also prevailed at trial on their state law

claims for violation of the state wiretap and privacy acts.

Defendants appeal. We start with the City's claim of error of law,

that it cannot be sued under the state wiretap act because it is

not a "person" within the meaning of the act. As a result, the

City argues, the state wiretap claims against the City should have

been dismissed and no damages could be awarded against it.

1. The City Is Not a "Person" Who May Be Sued Under the
Rhode Island Wiretap Act

The district court rejected on summary judgment the claim

that the City was not within the scope of the federal wiretap act,

Walden, 495 F. Supp. 2d at 265-67, but did not address the City's

separate claim that it was not a defendant within the state wiretap

act, id. at 271. The City properly preserved the claim.27 This is

a pure issue of law, which we review de novo. Omnipoint Holdings,

Inc. v. City of Cranston, 586 F.3d 38, 45 (1st Cir. 2009). We hold

that the City is not a proper defendant within the scope of the

state wiretap act.

27
Plaintiffs argue that the City did not preserve the claim
at the summary judgment stage or later. Our own review of the
City's summary judgment motion shows that the City plainly
presented the argument that the state wiretap law did not allow
suit against a municipality because of a difference in wording in
the state and federal acts. Further, the City did raise on its
Rule 50 motion the argument that it was entitled to judgment on
both of the federal claims and all of the state claims.

-40-
 The City argues that while the Rhode Island wiretap

statute generally mirrors the federal statute, the federal act

applies to a broader range of possible defendants than state law

does. The federal statute makes any "person" who violates it

civilly liable and was amended by the Electronic Communications

Privacy Act of 1986 ("ECPA"), Pub. L. No. 99-508 § 103 (1986), to

also make any "entity" liable. 18 U.S.C. § 2520(a). The Rhode

Island statute instead permits suit only against a "person" and

does not include the term "entity." R.I. Gen. Laws §§ 11-35-21(a),

12-5.1-13(a). The City argues that it cannot be sued under the

state law because it is not a "person" under the Rhode Island

wiretap act.

We apply Rhode Island's rules of statutory construction

to interpret this statute. Under these rules, unambiguous language

is given its "plain and ordinary meaning," Castelli v. Carcieri,

961 A.2d 277, 284 (R.I. 2008), and for ambiguous text, we look at

the "statute in its entirety to determine the intent and purpose of

the legislature," Harvard Pilgrim Health Care of New England, Inc.

v. Rossi, 847 A.2d 286, 290 (R.I. 2004). Rhode Island's law also

dictates that we interpret the state wiretap act by analogy to

interpretations of the federal wiretap act, both before and after

the 1986 amendment that added the term "entity." See State v.

Oster, 922 A.2d 151, 162 (R.I. 2007) (citing federal court

interpretations the federal wiretap act to interpret parallel

-41-
language in the state provision); State v. O'Brien, 774 A.2d 89,

94-95 (R.I. 2001) (same).

The Rhode Island wiretap act by its terms only provides

for suits against "any person who intercepts, discloses, or uses

the communications" at issue. R.I. Gen. Laws § 12-5.1-13(a).

Further, recovery is "from that person." Id.28

The statute in turn defines a "person" as any

"individual, partnership, association, joint stock company, trust,

or corporation, whether or not any of the foregoing is an officer,

agent, or employee of the United States, a state, or a political

subdivision of a state." R.I. Gen. Laws § 12-5.1-1(11). This

language makes clear that only "officer[s], agent[s], or

employee[s]" of municipal governments are "persons" who may be

sued, not municipalities themselves. Id.

Further, the wiretap act's unique definition of the term

"person" shows the state legislature did not intend the act to

provide for suit against municipalities. Unlike the wiretap act

definition, Rhode Island's general definition of "person" for

purposes of statutory construction "extends to and includes

co-partnerships and bodies corporate and politic," Id. § 43-3-6,

which does include the City of Providence, see Charter, Art. I, §

28
The other section plaintiffs sued under is a criminal
provision that incorporates a requirement that the recordings be
willful and also applies only to "persons." R.I. Gen. Laws
§ 11-35-21(a). Rhode Island courts use the definitions in § 12-
5.1-1 when interpreting § 11-35-21. See O'Brien, 774 A.2d at 94.

-42-
102. Had Rhode Island's legislature wished the act to cover

municipalities, it could have ensured it did so specifically by

including the phrase "bodies corporate and politic," or using the

State's general definition of the word "person."

Our conclusion that municipalities are not "persons"

under the state act is reinforced by the material differences in

language between the state and federal wiretap acts regarding who

can be held liable. The equivalent provision in the federal

wiretap statute, 18 U.S.C. § 2520(a), was amended by the ECPA to

add to the statutory definition of those who could be held liable

the term "or entity." Pub. L. No. 99-508 § 103 (1986). This

amendment, courts agree, is the only possible basis for holding

municipalities liable under the federal act and even so, federal

courts disagree as to whether even the term "entity" includes a

municipality. Compare Adams, 250 F.3d at 985; Williams v. City of

Tulsa, 393 F. Supp. 2d 1124, 1132 (N.D. Okla. 2005), with Abbott,

205 F.3d at 980; Anderson v. City of Columbus, 374 F. Supp. 2d

1240, 1244-45 (M.D. Ga. 2005). And it is clear that Congress did

not intend to define the term "person" to include municipalities in

the federal statute.29 Abbott, 205 F.3d at 980; cf. Adams, 250 F.3d

29
The federal statute defines a "person" as "any employee,
or agent of the United States or any State or political subdivision
thereof, and any individual, partnership, association, joint stock
company, trust, or corporation." 18 U.S.C. § 2510(6). Although
this language varies slightly from that of § 12-5.1-1(11), we
conclude that both clearly exclude municipalities from the
definition of persons.

-43-
at 985. This again indicates that the Rhode Island statute does

not permit a cause of action against the City.

The City of Providence is entitled to dismissal of the

claims against it under the state wiretap law. Because plaintiffs

elected to pursue remedies under the state law to the exclusion of

federal law, all claims under the state wiretap act against the

City must be dismissed.

2. Trial Error from the Jury Verdict Forms Affecting All
Remaining Claims

This leaves the jury verdict finding Vieira alone liable

on the state wiretap claims. Plaintiffs were awarded $526,700 in

statutory damages under § 12-5.1-13 and $1 each in nominal damages

under § 11-35-21. Also remaining is the verdict against all three

defendants, for which each plaintiff received $1 in nominal

damages. How we resolve these issues on appeal affects the award

of attorney's fees against the defendants.

Defendants argue that the two jury verdict forms were

improper because they did not require the jury to make separate

findings as to each plaintiff against each defendant for the state

wiretap act and the state privacy act claims.30 Defendants

preserved this issue with timely objections at trial.

30
Although the same critique applies to the verdict forms
for the constitutional claims, our earlier findings on qualified
immunity and municipal liability make it unnecessary for us to
reach that issue.

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 "A verdict form must be 'reasonably capable of an

interpretation that would allow the jury to address all factual

issues essential to judgment.'" Sanchez-Lopez v. Fuentes-Pujols,

375 F.3d 121, 134 (1st Cir. 2004) (quoting Sheek v. Asia Badger,

Inc., 235 F.3d 687, 699 (1st Cir. 2000)). We examine the verdict

forms, along with the court's jury instructions, "to determine

whether the issues were fairly presented to the jury." Id.; Sheek,

235 F.3d at 699. Our review is de novo. Sanchez-Lopez, 375 F.3d

at 134-35.

Plaintiffs' claims under the state wiretap and privacy

acts, as instructed to the jury, required individual findings with

respect to each plaintiff against each defendant. The jury verdict

forms repeatedly failed to differentiate between the plaintiffs on

various counts, forcing the jury to choose between finding for all

or none of the plaintiffs and relieving individual plaintiffs of

the burden of proving their own cases. We hold that this prevented

the wiretap and privacy claims from being fairly presented to the

jury.

a. Plaintiffs' Claims Had to be Proved Individually

We assume arguendo that the instructions, as worded,

adequately presented the law and instead focus on what those

instructions required plaintiffs to prove.

Under the state wiretap act claims, plaintiffs had to

show that their telephone calls had been intercepted, R.I. Gen.

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Laws §§ 11-35-21, 12-5.1-13, and that defendants had done so

intentionally.31 Thus, the defendants could not be liable to any

plaintiff whose calls they did not intentionally record. Cf.

Reynolds v. Spears, 93 F.3d 428, 432 (8th Cir. 1996) (affirming

summary judgment for defendants on a similar provision of the

federal wiretap act, 18 U.S.C. § 2520(a), when plaintiffs relied

solely on a jury finding for a co-plaintiff to show their calls

were intercepted and provided no evidence of their own).

Defendants also had defenses that the jury had to

consider. The first, which the court only allowed for one of the

two wiretap claims, under § 12-5.1-13, was a law enforcement

defense. Under the wiretap act, defendants had a defense for

intercepted calls on "[a]ny telephone . . . being used by . . . an

investigative or law enforcement officer in the ordinary course of

his or her duties." R.I. Gen. Laws § 12-5.1-1(7)(i). As

instructed by the court, this required a finding as to whether

defendants were law enforcement officers and whether or not the

calls were recorded in the ordinary course of duties.32 If nothing

31
Plaintiffs raised state wiretap claims based on two
different statutory provisions. Count Four was under R.I. Gen.
Laws § 11-35-21, and Count Six was under R.I. Gen. Laws
§ 12-5.1-13. The court instructed the jury separately on these
claims, but it provided the jury with forms that did not
distinguish between the two claims and addressed them
simultaneously.
32
Although we do not ultimately decide defendant Vieira's
argument that the court incorrectly applied the law enforcement
exception to the state wiretap act, we question the court's

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else, the jury would have had to determine whether each defendant

was a law enforcement officer and whether the individual

plaintiffs' telephone calls were recorded in the ordinary course of

law enforcement duties. Cf. Amati, 176 F.3d at 955 (considering

whether recordings on a specific police department private line

fell within the equivalent federal law enforcement exception).33

Finally, for the wiretap claim under R.I. Gen. Laws § 12-

5.1-13, plaintiffs had to individually show the number of days that

their calls had actually been recorded for purposes of calculating

statutory damages. See id. § 12-5.1-13(a)(1).

On the privacy act claim, each plaintiff had to establish

both that he or she had an objectively reasonable expectation of,

or entitlement to, his or her calls being private, id. § 9-1-

28.1(1)(i), and that defendants's recording of calls actually

violated that expectation, id. § 9-1-28.1(b). Especially because

the evidence at trial was that plaintiffs used their phones for

varying purposes and under varying circumstances, both of these

recitation of the law, which could exclude government employees
responsible for operating otherwise legal recording equipment
simply because they are not police officers. Cf. United States v.
Lewis, 406 F.3d 11, 16-18 (1st Cir. 2005) (finding a state
telephone system administrator at a prison to be a law enforcement
officer).
33
The second defense presented to the jury was that
defendants could not be liable for the recording of calls by any
plaintiffs who consented to the recordings. This defense required
the jury to decide whether any of the individual plaintiffs had
consented. The court required the jury to make individual findings
on this defense and so we do not address it further.

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elements required individualized findings. Cf. O'Connor, 480 U.S.

at 718 (holding under the analogous Fourth Amendment right to

privacy that "whether an employee has a reasonable expectation of

privacy must be addressed on a case-by-case basis"); Vega-Rodriguez

v. P.R. Tel. Co., 110 F.3d 174, 179 (1st Cir. 1997).

b. Lack of Individuation in the Verdict Forms Prevented the Jury
from Making Essential Findings

The jurors were given two verdict forms, one for the 116

Walden firefighter plaintiffs and one for the nineteen Chmura

police plaintiffs. The forms addressed the state wiretap and

privacy act claims similarly.

For the state wiretap act claims the verdict forms asked

the jury whether each defendant--Vieira, Lennon, and the City--

"sought to intercept or procured another to intercept any of

Plaintiffs' telephone calls made or received at the Providence

Public Safety Complex." (Emphasis added). The forms allowed the

jury to find for each defendant or for all plaintiffs against each

defendant.

The verdict forms then presented the defenses. For the

law enforcement defense, the forms only gave the jury the choice of

finding for all plaintiffs or for all defendants and made no

distinction as to types of calls.

The forms next instructed the jury, if it found for

plaintiffs on the previous questions, to determine how many days

between May 23, 2002, and February 10, 2003, each plaintiff had

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established by a preponderance of the evidence that he or she had

telephone calls to or from the Complex that were recorded. Each

verdict form then listed plaintiffs' names with a space to provide

a number of days.

The verdict forms for the privacy act count only asked

the jury to find either individually for each defendant or for all

plaintiffs against each defendant.

These verdict forms did not fairly present the issues to

the jury because they deprived the jury of the ability to

differentiate between plaintiffs on nearly every element. Instead,

the forms assumed that the only meaningful distinction among the

plaintiffs was whether they were part of the Walden firefighter or

Chmura police groups, requiring the jury to find for all members of

the groups, or for none of them. While findings for all plaintiffs

might be permitted in a class action, this case was not a class

action and there were no findings as to commonality of claims. See

Fed. R. Civ. P. 23(b)(3) (allowing plaintiffs to proceed as a class

"if the court finds that the questions of law or fact common to

class members predominate").

Under the wiretap act, the forms required the jury to

find for all plaintiffs in each group if "any" of them had their

calls intentionally recorded, even if the jury found that only some

of the plaintiffs met their burden of showing their calls were

intentionally recorded. Thus, the jury found the defendants liable

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to all 116 Walden plaintiffs despite the jury's apparently

inconsistent factual finding that seventy-one of them had failed to

prove that their calls were recorded on any days.34

Further, the forms prevented the jury from making

essential findings on defendants' law enforcement defense, even

though defendants played different roles in the recordings and

plaintiffs' testimony made clear that their use of the telephone

system varied.35 The jury could very well have found that some

lines or calls were being recorded in the ordinary course of law

enforcement but that others were not. The all-or-nothing structure

of the verdict forms made it impossible for the jury to make this

distinction.

On the privacy act, the lack of differentiation in the

forms prevented the claim from being fairly presented to the jury

because the forms forced the jury to treat plaintiffs in each group

as having the same expectation of privacy. The evidence at trial

showed that plaintiffs in each group used their phones to make

34
The forms similarly required the jury to make a finding
of the number of days on which calls were recorded for plaintiffs
even if plaintiffs failed to prove that the recording of their
calls was intentional, as may well have been the case among
firefighters who made calls on the personal line.
35
Among the Chmura plaintiffs were police officers who used
their telephones for police work, civilian Police Department
employees who answered calls from complainants, and employees who
only made calls on administrative matters. Among the Walden
plaintiffs, there were internal calls between fire stations that
directly implicated the functioning of the Department and calls on
the firefighters' personal line.

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widely differing types of calls under differing circumstances, and

the jury could have found that their expectations of privacy

differed accordingly.36 Further, the jury's inability to make

individual findings, as under the wiretap claims, forced the jury

to find for all plaintiffs even if not all of them proved their

calls were recorded, as was the case with seventy-one of the Walden

plaintiffs.

The errors were not harmless.37 The error with the forms

affects both the awards against Vieira under the state wiretap act

and the award against all three defendants under the privacy act;

it requires a remand for a new trial on both.38

36
The Chmura plaintiffs made and received calls on a number
of lines for a number of purposes, including as part of
investigations, answering questions from family members of
suspects, addressing human resources concerns, or simply making
personal calls. The Walden plaintiffs had similar differences.
37
We realize there were 135 individual plaintiffs and that
construction of an appropriate form would take some effort. But
plaintiffs' claim such a form would take 1,000 pages is simply
untrue.
38
Lennon argues that the jury finding in Count Five, that
she violated the privacy act, R.I. Gen. Laws § 9-1-28.1, was
inconsistent with the verdict that she was not liable under Counts
Four and Six, under the state wiretap act. Even assuming Lennon
preserved the claim, the remedy for inconsistent civil verdicts
that cannot be reconciled is a new trial, see Davignon v. Hodgson,
524 F.3d 91, 109 (1st Cir. 2008), and she is entitled to a new
trial on other grounds.
We do not reach Lennon's claim on the sufficiency of the
evidence.

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D. Further Proceedings

There are other claims that we need not address,

including defendants' claims of error in the court's jury

instructions and evidentiary rulings. Our disposition moots the

plaintiffs' appeal.

Because plaintiffs are no longer prevailing parties, the

award of attorney's fees is vacated. The defendants' appeal from

the amount of the award is moot.

On remand the district court should dismiss all federal

claims,39 the state constitutional claims, and the state wiretap

claims against the City with prejudice. The court should dismiss

without prejudice the state wiretap claims against Vieira, and the

privacy act claim against the two individuals and the City, so the

claims can be brought in state court, which is the preferred forum

for any interpretation of state law issues remaining.

Accordingly we vacate the jury verdicts and direct entry

of judgment of dismissal with prejudice of all federal claims and

of the state wiretap claim against Lennon. We direct entry of

dismissal without prejudice to proceedings in the state courts on

the state wiretap claims against Vieira and the state privacy act

39
The dismissal of the federal wiretap act claims was based
on an election of remedies. The parties have not briefed the issue
of whether the federal wiretap claim can be reinstated on remand
given the basis for the dismissal was the election of remedies.
However, the election of remedies chosen by the plaintiffs was to
their advantage, and there is no reason to think even if the law
gave them a choice, that they would choose otherwise.

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claims against all three defendants. The award of attorney's fees

is vacated. No costs are awarded on appeal.

So ordered.

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