South Bend, Ind. Can’t Sue Its City Council

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By Melissa Heelan Stanzione

A suit by South Bend, Ind., against its city council over police wiretaps was dismissed by the Seventh Circuit Aug. 1 ( City of S. Bend v. S. Bend Common Council , 2017 BL 267133, 7th Cir., No. 15-3315, 8/1/17 ).

“The suit is like one division of General Motors suing another” and “is improper,” Judge Frank H. Easterbrook wrote for the court.

South Bend’s police department records some of its office phones for business purposes, but some “troubling” calls came to light after the system crashed and was subsequently restored.

After the police department refused to turn over the tapes to the city council, the council asked a state court to enforce a subpoena for access to them.

City Sues

The city then filed suit in federal court, asking it to declare that disclosure of the tapes would violate federal wiretap statutes. It also sued several police officers, arguing that it should be declared not liable to any of them. Those officers countersued the city for damages.

The district court determined that it had jurisdiction over the cases and that all lawfully made recordings should be disclosed.

Only state courts can resolve an “intramural dispute, but otherwise it must be worked out the same way Congress and the President resolve their differences: by politics,” the Seventh Circuit said.

It ordered the district court to dismiss the complaint and said the state court should resolve the underlying dispute “without regard to the vacated federal judgment.”

Judges Joel M. Flaum and Ann C. Williams joined the opinion.

Faegre Baker Daniels LLP represented the city. May, Oberfell & Lorber represented the council. Pfeifer, Morgan & Stesiak represented the individual officers.

To contact the reporter on this story: Melissa Heelan Stanzione in Washington at

To contact the editor responsible for this story: Jessie Kokrda Kamens at

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