Closing arguments set for Thursday morning in South Bend Police Tapes case

Both sides in this court battle that began in 2012 were asked to file written submissions, "Proposed Findings of Fact and Conclusions of Law." Both documents are attached to the bottom of this article.

This case centers around cassette tapes made of conversations on one phone line, "line 6031," at the South Bend Police Department back in 2011. The South Bend Common Council subpoenaed the tapes in August of 2012 in response to allegations that the tapes contained racist or illegal language, and after then-Police Chief Darryl Boykins was ousted. But police officers filed into the case, called the "intervenors," to block that subpoena, saying it violated state and federal wiretap acts, resulting in the court battle still ongoing today.

After SBPD's "Voice Logger" recording system crashed, and while troubleshooting, the director of communications heard "something that disturbed her," possibly "illegal," and reported the conduct to Chief Boykins. In late 2011, Boykins asked for copies of those relevant conversations, and the first tapes were made.

The council argues in its court filing that even though the intervenors did not know that particular phone was being recorded, the recording of police lines is considered "ordinary course." The filing states, "...the near universal routine practice of recording calls into and out of police departments is, and has been, well known by both police officers and the public for many years before the recordings at issue in this case. This knowledge constitutes notice. The use of a police department telephone line with such notice constitutes implied consent."

Also, officers had to sign off on a policy from the SBPD Office of Professional Standards, which states, "Employees do not have a right to privacy for assigned equipment."

At-large South Bend Common Council Member, Dr. Oliver Davis, called for the original subpoena and made the same argument in a November interview with ABC57.

"All of this took place, conversations, on the work phones, okay?" he said. "If it had taken place on their own cell phones, their phones at their house, whoopity do. But to have this taking place on their work phones, that's a different ball game."

There was no written or unwritten policy at SBPD regarding the recording of individual phone lines, so the question is whether that means the officers with recorded lines had an expectation of privacy. The common council says it does not, but the intervenors disagree.

They say it does, considering both the lack of policy and that the chief before Boykins gave a directive that individually assigned phone lines should only be recorded with that officer's knowledge and consent.

Line 6031 belonged to Officer Brian Young, who did not know his line was being recorded, and therefore, it's argued that "this lack of knowledge is fatal to any claim of consent."

This argument, maintained since 2012 but by two groups of intervenors, was filed by attorney Dan Pfeifer, who spoke with ABC57 ahead of the December bench trial.

"The substance of what is on the tapes has never been an issue," he said, "because what is on the tapes begs the question: if the tapes were obtained, if the recording of the line was in violation of the law, then nothing that is on the line can be disseminated."

The intervenors demand that the tapes never be released and instead be destroyed.

Oral arguments will take place on Thursday morning at the St. Joseph County Superior Court 6, then Judge Jamie Woods has 90 days to rule on all pending matters.