Judge allows police tapes case to go to trial

SOUTH BEND, Ind. -- The long-running South Bend police tapes case may finally be decided in court. A judge is now refusing to dismiss the case without anyone hearing the recordings, but also confirms some of the tapes may have been legally made.

The 19 page court filing summarizes a controversy that has spanned more than 8 years. This partial ruling brings some of the tapes one step closer to being released, but some questions remain. Those questions are now taking center stage in the presidential race.

Mayor my question is straight forward.

During a live CNN town hall Monday night Mayor Pete Buttigieg was asked by an audience member what is on the secret tapes regarding the demotion of South Bend Police Chief Darryl Boykins

"So the answer is I don’t know and the reason I don’t know is because the recordings were made in a way that may have violated the Federal Wiretap Act," said Buttigieg.

Those recordings were made on a phone line inside South Bend police headquarters more than 8 years ago. An officer moved into an office that had a recorded line without knowing the his calls were being taped.

According to court documents, sometime around January 2011 former Communications Director Karen DePaepe discovered the line was being recorded while troubleshooting the system.

DePaepe informed Chief Boykins and the recordings were allowed to continue.

That move eventually lead to a federal investigation into the department and Chief Boykins demotion.

“The reason that I demoted the chief was that I found out he was the subject of a criminal investigation not from him, but the FBI and it made it very hard for me to trust him as one of my own appointees," Buttigieg said during the CNN town hall.

On Monday, St. Joseph County Circuit Court Judge Steven Hostetler ruled any tapes made before it was discovered the line was being recorded do not violate the Indiana Wiretap Act, because no one "intentionally" made them.

According to the ruling, “The language of the statute is clear that for an interception to occur it must be intentional. Since the recordings made prior to the discovery date were not intentional, they do not fall under the protection of the Indiana Wiretap Act. Thus, the production of those recordings would not violate the act as a matter of law."

As far as the tapes recorded after the discovery, those could be illegal.

“The Constitutional question presented is whether the City, having illegally made certain of the Recordings, has a First Amendment right to publish those of the Recordings that were illegally made. It does not have any such right," the ruling continued.

Both sides are still debating what the exact discovery date of those recordings was and whether they will ever be played in public.

Judge Hostetler set a pretrial hearing for may first.