Police Chief Snapchat Snafu Suit Can Proceed On 1 Count, Judge Rules

EVANSTON, IL — A federal judge found in favor of the city of Evanston and its former police chief on all but one of the remaining claims in a civil rights lawsuit over social media posts by the city's former top cop.

In February 2020, then-Evanston Police Chief Demitrous posted several photos of printed mugshot arrays on a Snapchat account he kept for private use. Cook would later explain he preferred using the social media application's camera function over the phone's default.

The photos included various people's personally identifying information, such as their birthdays and last known addresses, and some were accompanied by hand-written notations like "DOA [dead on arrival]," "in custody" or, in the case of Kevin Logan, "pending HIV."

Cook deleted the post, explained it had been inadvertent, and apologized. Then-interim City Manager Erika Storlie suspended him for three days as a result of the incident, records show.

Logan, represented by Wheeling-based attorney Ilia Usharovich, filed the first version of his suit a short time later. In May 2020, five other people filed a class action complaint.

Both lawsuits were amended after U.S. District Judge Matthew Kennelly tossed out some of the counts, including Logan's claims against of the city for defamation, negligent infliction of emotional distress, intentional infliction of emotional distress, violation of his rights under the state constitution, negligence, gross negligence and willful and wanton conduct.

In April 2021, the Evanston City Council voted to settle the class action complaint in exchange for $90,000. Mayor Daniel Biss succeeded former Mayor Steve Hagerty in May 2021. In June 2021, Cook announced his retirement after city staff presented him with a severance offer.

Then on Tuesday, Kennelly granted summary judgment to the city and Cook on Logan's equal protection and defamation claims — but not on his claims under the Constitution's due process clause.

The judge found that Logan had not provided evidence that Cook had intended to discriminate based on race and that the former chief was entitled to absolute immunity under state law on Logan's claims of defamation, since police and other executive branch officials cannot be held civilly liable for statements within the scope of their official duties, even if they are defamatory.

Kennelly also found that no reasonable jury could have found that the city violated Logan's Fourth Amendment rights to be free from unreasonable searches and seizures.

But the judge allowed Logan's claim that Cook violated his right to privacy under the Fourteenth Amendment — and that the city should be held responsible — to stand.

"The Court concludes that a reasonable jury could find that Cook violated Logan's due process rights in publishing the photo and the text next to it," Kennelly said.

Related:
Evanston Police Chief Demitrous Cook To Step Down As Top Cop
Demitrous Cook Snapchat Class Action Suit Settles For $90,000
Man Sues Police Chief, City Over 'HIV' Social Media Post
Evanston Police Chief Apologizes For Personal Snapchat Posts

As for whether the city is ultimately liable for Cook's actions, Kennelly said it should be up to a jury to decide.

"Taken as a whole, the record reflects a genuine factual dispute regarding whether Cook was acting at the apex of the city's authority when he published the photos," he said. "This is further buttressed by the fact that Evanston police policy specifically allows for the use of social media to aid in criminal investigations."

Because the U.S. Seventh Circuit Court of Appeals has previously recognized a constitutional right to privacy of medical information, Logan's claim is based on Cook's disclosure of his supposed HIV status, regardless of its accuracy.

"Cook contends that because Logan was not actually HIV positive and did not have a pending HIV test, the 'pending' and 'HIV' text above and next to his photo did not actually contain confidential information subject to constitutional protection. In other words, Cook says that he is claimed to have published false medical information about Logan and that this does not amount to actionable publication of private medical information under the Fourteenth Amendment according to Supreme Court precedent," Kennelly said in the 13-page order, which scheduled a status hearing for July 5 to set a trial date and discuss the possibility of settling the case.

"Cook's argument amounts to the proposition that if a public official discloses personal medical information about an individual that is accurate, the official violates the Constitution, but if he discloses false medical information about an individual, he does not," the judge continued. "This is a Catch-22 argument that does not carry the day."

UPDATE: Evanston Pays $125,000 To Settle Suit Over Ex-Chief's Snapchat Post