Judge rules Henry Davis Jr. did not defame officers involved in police tape controversy

By Lincoln Wright South Bend Tribune

SOUTH BEND — Henry Davis Jr. did not defame a group police officers involved in the police tapes controversy when he wrote a letter asking the Department of Justice to investigate potential racial biases, a St. Joseph Superior Court judge ruled.

In May 2014, Tim Corbett, Steve Richmond, Dave Wells and Brian Young filed a defamation lawsuit against Davis saying he damaged their reputations with his letter to the DOJ.

In his request for summary judgment, Davis, who was representing the 2nd District on the South Bend Common Council at the time, said he sent the letter to the DOJ after many of his constituents expressed concern about how African Americans were being treated by police. Davis said it was his duty as a Common Council member to look into the concerns.

Henry Davis Jr. won the Democratic primary to run for his old seat on the city council, in the 2nd District.

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The police tape controversy, the demotion and subsequent firing of South Bend’s first African-American police chief, Darryl Boykins, and the death of an African-American man in police custody heightened the community’s concerns, according to Davis. In July 2012, Michael Anderson died by choking while in police custody. Davis sent his letter to the DOJ the following month.

The legal case over the police tapes has lingered for years, as Common Council members have tried to have the tapes released. Corbett, Richmond, Wells and Young were unknowingly recorded on a police department phone line and allegedly made racial slurs against then-Police Chief Boykins. The city has spent at least $2 million in legal fees and on settlements with the officers and others in the case.

The officers continue to fight the release of the tapes. St. Joseph Superior Court Judge Steven Hostetler recently ruled the case can proceed to trial because recordings made before the police department’s then communications director discovered the recording device on a department phone line did not violate the Indiana Wiretap Act, which prohibits recording conversations without either person’s consent.

The officers’ new motion will argue that the recordings violated the federal, rather than the state, wiretap law, as well as the U.S. Constitution’s Fourth Amendment protection against illegal search and seizure. The officers must file their new motion by Sept. 10. The council will then respond with a written filing. If Hostetler again denies the officers’ motion, the case could go to trial in summer 2020 at the earliest.

In Davis’ case, his motion for summary judgment was based on Indiana’s anti-SLAPP law, which states individuals have a right to talk about public issues and that others are prohibited from attempting to silence them with lawsuits.

In their lawsuit, the officers argued Davis’ actions were outside the scope of his position on the Common Council and that he was individually liable for his actions because he acted with willful disregard to the consequences of his actions.

“Henry Davis’ actions were in his individual capacity and a rouge attempt to damage the plaintiffs by said unfounded allegations,” the officers’ suit read.

Thursday, The Tribune was told the officers’ attorney, Dan Pfeifer, was out of the office for the day. Pfeifer didn’t immediately return an email asking for comment.

But Judge Margot Reagan agreed with Davis’ defense under the anti-SLAAP statute and wrote the officers did not provide enough evidence to prove their claim.

“Because Davis Jr.’s letter to the DOJ was written in good faith to encourage a law enforcement inquiry, Davis Jr.’s letter was privileged, and this privilege completely defeats the officers’ defamation claim against him,” Reagan wrote.

In a statement issued Thursday, Davis said he was pleased with the court’s ruling and that he received his fair day in court. He thanked those who supported him through the legal process, especially those in the 2nd District. Davis is again vying for his former seat on the Common Council representing that district. He took the Democratic primary in May with 799 votes, 53% of the total cast. He currently has no challenger in the general election. Republicans have until July 3 to produce an opponent.

“The court’s decision is not just a victory for me, but also one for free speech,” Davis said Thursday in a statement. “Every American should have the right to engage in political discourse without fear of a defamation lawsuit.”

lwright@SBTinfo.com 574-235-6324 @LWrightSBT

aaron green