Wiretap plaintiff must file a better complaint

You don't see too many civil cases for damages under the Omnibus Crime Control and Safe Streets Act of 1968, which prohibits the unauthorized wiretapping of phone calls. Plaintiff brought this action which the government tried to dismiss under Iqbal and on qualified immunity grounds. The district court denied the motion. The Court of Appeals is not so sure.

The case is Drimal v. Makol, decided on May 15. Law enforcement tapped plaintiff's phone to listen in on her husband's conversations, as he was the subject of a white-collar fraud inquiry. Here's the problem: some wiretapping is legal if the police have probable cause. But the police must minimize the nature of the wiretapping to ensure they are not listening in on calls unrelated to the investigation. Looming over this case is the Iqbal pleading standard set forth by the Supreme Court in 2009, which requires parties to plead non-conclusory factual allegations and not simply rely on legal conclusions.

The Court of Appeals hears the case because the district court denied defendants' motion for qualified immunity, and immunity questions can be appealed right away. The Circuit says the district court got it wrong under Iqbal. Plaintiff did not plead that the police failed to properly minimize the wiretapping. The Court of Appeals says:

In assessing the complaint, the district court read the minimization requirement into the plaintiff’s allegations that defendants “unlawfully” listened to her calls and required no greater specificity as to the facts alleged. However, a simple allegation that defendants behaved “unlawfully,” unsupported by any factual detail, is precisely the type of legal conclusion that a court is not bound to accept as true on a motion to dismiss, and the district court erred in doing so here. 

 If the plaintiff refiles her complaint on remand, the district court must consider qualified immunity. The Court of Appeals provides guidance on this issue. Qualified immunity allows municipal officials to avoid trial if they acted reasonably under the circumstances. The Court notes that "The government argues on behalf of all but one defendant that a per se “two‐minute rule” derived from United States v. Bynum — treating calls monitored for less than two minutes as properly minimized—entitles agents to immunity for interceptions that did not exceed that duration." It adds, "While our reasoning in Bynum, which didn’t pertain to any privileged communications, can be read to suggest a presumption that calls less than two minutes long need not be minimized, this is not a fixed rule for every case: whether the two‐minute presumption applies is a fact‐specific determination." In the end, "The two‐minute presumption we applied in Bynum thus does not automatically shield defendants against the failures to minimize calls under two minutes that the putative amended complaint is likely to allege."