90 Days to respond; civil suits over recorded police phone calls looming
SOUTH BEND, Ind. - The first of what could be several civil lawsuits is looming, as five individuals represented by Pfeifer, Morgan, and Stesiak have notified the city of their tort claim.
The city now has 90 days to respond; they can accept the claim, deny the claim, or stay silent. If the 90 days expires and the city has stayed silent, it is the same as denying the claim.
The attorney’s have enlisted the assistance of another firm from Indianapolis they claim has experience litigating this type of case.
The five claimants are Detective Brian Young, whose line was recorded; his wife Sandy Young, who says she made several calls to the line; Division Chief Steve Richmond, who was supposed to have the line to begin with but avoided it by requesting that he keep his original line when he was promoted to Division Chief; Assistant Commander of the Metro Homicide Unit and South Bend Police Lt. Dave Wells; and Commander of the Metro Homicide Unit Tim Corbett.
None of the claimants know for certain they were recorded; and only Corbett has been confirmed to be on tape by Karen DePaepe, who says she stumbled onto the original files, and the mistaken switching of lines, while she was conducting maintenance on the recording system.
According to Daniel Pfeifer, his clients claims are based on telephone conversations that were illegally recorded by wiretapping.
Despite documentation that officers with the police department can have no expectation of privacy when using department equipment, and that it can be inspected at any time, Pfeifer says private conversations cannot be listened to or recorded.
But the Federal Wiretapping and Electronic Eavesdropping statute has exceptions, specifically for law enforcement.
These exceptions were put to the civil litigation test in Amati vs. Woodstock.
In that case, police officers who worked at the department in Woodstock, Illinois brought a civil suit because their private conversations were recorded on a phone line they had been told was not recorded.
In the course of the litigation the city was able to argue that the recordings were done in the course of ordinary law enforcement.
The Seventh District Circuit Court of Appeals, which is the circuit court South Bend falls under, ruled against the officers saying, “The invasion of privacy was regrettable. But if all congress had cared about was the protection of privacy it would not have written an exception for electronic eavesdropping in the ordinary course of law enforcement into the statute.”
This could have been good news for the city of South Bend, because it sets a precedent that could seriously hamper the civil suit here if it applies.
As it stands, former Director of Communications Karen DePaepe has stated that the line in question was originally recorded to have documentation of complaints against officers and for tips into investigations.
However, several weeks ago, South Bend’s Mayor Pete Buttigieg has marginalized the ruling as it relates to what happened here stating, “I know that there was a superficially similar case but my understanding is that it doesn’t provide an exception here.”
Buttigieg went on to talk about how federal authorities certainly knew about the case and he claimed (for them) that they still had a problem with what was going on in South Bend.
There has been no official response from U.S. Attorney David Capp that he knew about Amati vs. Woodstock, or if it influenced his decision not to press charges.
From the beginning Mayor Buttigieg has been adamant that the police department was out of compliance, according to federal authorities.
Pfeifer has taken that as an admission that illegal wiretapping has occurred.
Now, his clients could end up suing the city for every single phone call they made on and to that line.
But U.S. Attorney David Capp has never actually stated in so many words that illegal activity actually occurred.
In a letter to the city Capp references that the Mayor has made several changes to the policies, and that they have not, nor cannot, weigh in on whether they are correct.
Prior to leaving for his commitment to the Naval Reserve, Buttigieg had been pressured about potential litigation from the other side of the issue; whether his handling of the personnel changes was appropriate.
His comments about whether the legal opinion of Amati vs. Woodstock were predicated on advice he received from the special counsel he commissioned, Rich Hill; who does not appear to have any previous federal, criminal, or wiretapping law experience; and interim City Attorney, Aladean DeRose.
Buttigieg did speak with G. Robert Blakey, the University of Notre Dame Law School professor and man who oversaw the committee to create the wiretapping law in the 60s, nearly two months after the scandal broke.
Blakey’s opinions have been echoed by Pfeifer.
A phone conversation with Blakey, the day after Buttigieg claimed to have talked to him, revealed that Buttigieg failed to mention the Amati vs Woodstock opinion when giving Blakey all of the details of what had happened.
Pfeifer was unaware of the precedent setting case law as well.