JEFF HARRELL, South Bend Tribune

Phone conversations recorded in the “ordinary course” of police duties does not violate the Federal Wiretap Act, a federal appellate court ruled in 1999.

The case of Amati v. City of Woodstock (Ill.) served as a precursor to the federal investigation into recorded calls at the South Bend Police Department that led to Darryl Boykins’ ouster as police chief and cost Karen DePaepe her job as the department’s director of communications.

“I believed there was racism and criminal activity, in my mind, so I went to the chief,” DePaepe, who uncovered the recordings in February 2011, said Friday.

Mayor Pete Buttigieg repeatedly emphasized that his decision to demote Boykins to captain and fire DePaepe was backed by the Federal Wiretap Act.

In April Buttigieg said it’s a felony to record phone conversations without proper consent – and a separate felony, he noted, to copy, use or disclose the contents of such recordings, or to solicit one to do so.

When asked Friday to comment on Amati v. Woodstock, which provides an exception to the Federal Wiretap Act, the mayor’s spokeswoman Debra Johnson said in a statement:

“The mayor’s role is to ensure that city departments are well-run and fully compliant. Federal authorities made it clear to the mayor that they found problems and expected corrections, and he acted accordingly.”

Once a new “Enhanced 911” phone system was installed in 1991 at the police department in Woodstock, Ill. – a municipality northwest of Chicago famous for serving as the location for the movie “Groundhog Day” starring Bill Murray – all calls directed through the dispatch console were recorded.

Few paid attention to the recorded calls until Sgt. Charles Amati was overheard during one radio call following up an obscenity by calling the chief a derogatory name.

The department’s deputy chief summoned Amati along with his union representative and told the police sergeant not to use the radio improperly.

The deputy chief added “everything” that came through the Woodstock Police Department was recorded.

The admonishment snowballed into a lawsuit when attorneys went to a local police union meeting and told the officers they could sue and win $10,000 per violation under a Federal Wiretap Act civil statute.

“They thought they were going to hit the lottery,” recalls attorney Stephen E. Balogh, who represented the Woodstock Police Department’s director of communications in the civil suit and the appeal.

Claiming the department was “eavesdropping” in violation of the Federal Wiretap Act, the Amati parties asked for $300 million in damages.

“They were looking at thousands of violations,” Balogh says, “for each intercepted communication is a violation.”

The trial, which lasted three weeks, ended with the jury returning a verdict in Amati’s favor.

Balogh and a host of other attorneys representing the city of Woodstock appealed the verdict to the U.S. Court of Appeals, Seventh Circuit, the next year.

In the opinion that overturned the verdict, U. S. Circuit Court Judge Richard A. Posner wrote:

“Investigation is within the ordinary course of law enforcement … Since the purpose of the statute was primarily to regulate the use of wiretapping and other electronic surveillance for investigatory purposes, ‘ordinary’ should not be read so broadly; it is more reasonably interpreted to refer to routine noninvestigative recording of telephone conversations.”

If the department was recording every call trying to catch one person, “that’s a violation,” Balogh says, adding, “If they’re just generally recording phone calls and happen to overhear something, that’s ordinary course.”

According to the South Bend Police Department’s duty manual, it was in DePaepe’s job description to ” … check and maintain any and all equipment” in the department’s Emergency Communications Center.

DePaepe says the ruling in Amati v. Woodstock lends further justification to her course of action after hearing the tapes.

“Was I given any policy or direction … no,” DePaepe insists. “I have no doubt there was racism on those tapes. And I did believe there was criminal activity being committed.

“And I went to my chief.”

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