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Appeals court reinstates defamation suit against Henry Davis Jr

SOUTH BEND, Ind. -

The Indiana Court of Appeals has reversed the dismissal of the suit against Henry Davis Jr filed by four officers in May 2014 related to the tapes recorded at the South Bend Police Department.

Officers Tim Corbett, Steve Richmond, David Wells and Brian Young allege Davis violated the Wire Tap Act by listening to the tapes or receiving information about what was on the tapes.

The suit also alleges Davis is liable for defamation by writing a letter to the Department of Justice in August 2012 about his concerns South Bend Police officers were recorded saying inappropriate, racial remarks on the tapes.

They also allege Davis posted comments on his Facebook page concerning what he heard.

When the officers filed the suit in May 2014, it was filed against the city of South Bend, the South Bend Common Council and Henry Davis Jr.

The officers dropped the city and council from the suit in July 2014 and filed an amended complaint in October 2014.

In January 2015, a St. Joseph County judge granted a motion to dismiss filed by Davis. Davis alleged he could not be held liable personally while working within the scope of his job for a government entity, as protected by the Indiana Tort Claims Act.

The St. Joseph County trial court found the claims against Davis were barred by the ITCA.

On August 4, 2015, the Indiana Court of Appeals reversed the St. Joseph County court’s decision to dismiss the suit.

The appellate court stated the wording in the lawsuit sought to have Davis held liable as an individual for defamation and did not allege he was acting as a governmental employee, and therefore, the suit was not barred by the ITCA.

The appellate court stated therefore, the trial court erred in dismissing the defamation claim, reversed the decision and remanded it for further proceedings.

For the wiretap claim, the appellate court said it must consider two provisions in addressing whether the dismissal of the case was erroneous in regards to the wiretap.

First, the appellate court had to decide whether the voluntary dismissal of the city and common council constituted a judgment. The appellate court found because the officers dropped the two government entities so early in the case, they were within their rights without seeking permission from the trial court.

Second, the appellate court had to consider whether the lack of response from the city and the county stating Davis was acting outside his scope of employment prevented him from being sued personally.

The appellate court found that since the city and council were dropped from the suit, they were no longer a party in the suit and were not required to file a pleading before the claims against Davis were allowed to proceed.

The appellate court reversed the trial court’s order of dismissal on the wiretap claim and remanded the case for further proceedings.

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