Wiretap and defamation claims against South Bend councilman allowed to move forward

Overturning the trial court’s dismissal, the Indiana Court of Appeals is allowing the complaint claiming a South Bend city councilman violated the federal wiretap act and committed defamation to proceed.

South Bend Police officers Brian Young, Dave Wells, Steve Richmond and Tim Corbett filed a lawsuit in May 2014 against the city of South Bend, the South Bend Common Council and Henry Davis Jr., a member of the common council.

The officers filed the suit after they learned that Davis had allegedly either listened to tapes of their illegally recorded private telephone conversations or that he had talked to someone who had heard the tapes. Davis also sent a letter to the U.S. Department of Justice accusing the officers of racially based misconduct and he allegedly posted comments about the matter on social media.

In the complaint filed in St. Joseph Superior Court, the officers charged Davis violated provisions of the federal wiretap act and related provisions in Indiana law by either listening to the phone conversations or receiving information about the calls. Also, they assert that Davis is personally liable for defamation by forwarding correspondence to the Justice Department.

The officers voluntarily dismissed the city and common council from the complaint in July 2014 but kept Davis as the sole defendant. They contend he acted outside the scope of his employment. The trial court disagreed, finding the claims against Davis were barred by Indiana Tort Claims Act which prohibits civil claims against government workers acting within the scope of their jobs.

Originally including the two government entities in the complaint caused the Court of Appeals to take a closer look at the issue of whether Davis was acting inside or outside the scope of his employment.

Davis argued the officers’ dismissal of the city and common council from their lawsuit constitutes a judgment which, under the ITCA, would bar the complaint against him.

However, the Court of Appeals noted the plaintiffs decided to voluntarily dismiss the government entities before the litigation had begun and, therefore, did not require any judicial action to amend the complaint. Consequently, the appellate panel found the dismissal in this case did not equate to a judgment for ITCA purposes.

The Court of Appeals also disputed Davis’ argument that the officers could not seek recovery from him as an individual because the city and common council did not respond to the complaint and assert that he was not acting as a government employee.

Once the officers amended their complaint to focus solely on Davis, the Court of Appeals pointed out there was no government entity participating in the litigation that could have filed a pleading as to Davis’ actions.

“To agree with Davis’s position would be to hand control of litigation over to a third party,” Judge John Baker wrote for the court. “We simply cannot countenance, and cannot conclude that the General Assembly intended, such a result. We decline to find that a non-party governmental entity was required to file a pleading before the Officers’ individual claims against Davis were entitled to proceed.”

The Court of Appeals reserved the dismissal of the officers’ complaint in Brian Young, Dave Wells, Steve Richmond, and Tim Corbett v. Henry Davis, Jr., 71A04-1501-CT-26. It also remanded for further proceedings on both the defamation and wiretap claims.