Closing arguments conclude Thursday in South Bend Police Tapes case

There were arguments over the definitions of terms like intent, interception, implied consent, institutional knowledge, and ordinary course of business regarding tapes of recorded conversations at the South Bend Police Department.

In 2012, the South Bend Common Council subpoenaed tapes of recorded conversations on line 6031 at SBPD, believing they contained racist or illegal language and that they led to the improper ousting of then-Police Chief Darryl Boykins. But police officers, called the "intervenors," filed into the case to block that subpoena, saying the creation of the tapes violated state and federal wiretap acts.

Thursday morning’s oral closing arguments began with attorney Dan Pfeifer, who represents the intervenors. He spoke for about 50 minutes. He argued that the police chief who preceded Boykins, Thomas Fautz, had a practice in place that demanded officers have knowledge and consent over whether their individually assigned lines are recorded. Considering Chief Boykins made no changes to Fautz's directives, Pfeifer argues that practice should have continued.

Then-Captain Brian Young, who was assigned line 6031, did not know his line was being recorded.

“The person that is assigned to that number, Young, has never consented to the recording of that line,” Pfeifer said in his closing arguments. “So, the consent to record 6031 when it was assigned to [another officer] ends when it is no longer assigned to [that officer], because under Fautz’s policy, the officer that is assigned to the line has to consent and agree.”

The 6031-phone line was hard-wired into the SBPD "Voice Logger" in 2005 at the request of the officer assigned to the line at the time. Communications staff at SBPD maintained a list of what lines were recorded. However, when a new officer took over the office with line 6031, he had his previous number swapped with 6031, and 6031 was transferred to a different office, which Young would eventually occupy.

"There is no evidence that Brian Young ever specifically consented," Pfeifer said, "and there is an abundance of evidence that Fautz and Boykins had a policy and procedure, and the City of South Bend, going all the way back to 2005, knew that 6031 was being recorded.”

To be clear, both sides of this case agree that there were no written or unwritten policies at SBPD regarding the recording of phone lines. It's important to distinguish Fautz's directives as practice, not actual policy.

Still, Pfeifer made the argument that officers had an expectation of privacy on their individually assigned lines. He said it was clearly a different protocol than the department's general use lines, like the front desk and 911 dispatch center.

"It makes no difference what the content of the conversation is, if in fact the conversation being recorded was recorded illegally," Pfeifer said.

On behalf of the intervenors, Pfeifer requests the court declare the tapes a violation of wiretap law and order they be destroyed.

His arguments were then followed up with the closing arguments from Attorney Matt Anderson, who represents the common council. He spoke for roughly 25 minutes. He argues there was no violation of the wiretap acts because, for one, the recording lacked the proper intent necessary.

"There is, sort of, this occurrence of the right hand not knowing what the left hand is doing," Anderson said. "Karen DePaepe [SBPD's director of communications at the time] may have known whether the line was being recorded or not, but she did not know that was Brian Young's line."

He said the recordings were done in the ordinary course of business at SBPD. He also argued that there was implied consent present at SBPD.

“The police department engaged in routine recording of calls," Anderson said. "That recordings were common, that there’s no intent to deceive or improper motive in knowing lines were recording, and furthermore, that Karen DePaepe, in this case, listened to and made tapes in the ordinary course of her job duties.”

Anderson requests the court allow the tapes, which he says are not in violation of any laws, be made public, as the Common Council requested over a decade ago.

"We simply ask what we asked for in 2012, which was that the Motion to Compel the subpoena issued by the South Bend Common Council be granted without exception," Anderson said.

St. Joseph County Superior Court Judge Jamie Woods then spent time asking each lawyer specific questions about the case and ultimately took all pending matters under advisement. He has 90 days, so until June 3, to rule.

Again, he will be the one to decide whether the police tapes are subject to dissemination or destruction.