good morning i'm daniel peiffer i represent the police officers john and others just a solid and i will be dividing the twenty minutes allotted i will be taking eight minutes mr solomon will be taking twelve saving five for rebuttal my comments and arguments will be limited to the position that the police officers are taking in response to the appeal process feel five filed counsel what the issues concerning the police officers are still live in this case haven't they all been settled they have not all been settled because it is our position that we judge and bachmann entered his order he determined that the cassettes that had been generated subsequent to february fourth violated the federal wiretap well i've i've looked at the record and there are a bunch of stipulations with its missile and it looks to me like all of the claims by and against your clients have been dismissed you can't appeal because you don't like a district judge's order if your clients or claims have all been dismissed well our position is and we were involved in the trial of this i know you were involved in the trial but you know molests dismissed your claims we dismissed our claims for damages as it relates to that the police officers had we still fully participated and the declaratory not you're not answering my questions saying we've fully participated in something doesn't mean you're still party it's what concretely why do you think that's a live issue when your clients have settled all disputes about the consequences of that we've settled as it relates to monetary damages we did not resolve the case as it relates the how and how your clients entitle anything other than monetary damages they disclosure our non disclosure of those papers our clients or my clients the police officers have an interest in and that was let me put this a different way have you ever found a case in which the parties had settled and dismissed all of their damages claims in which a declaratory judgment was normal less treated as still alive not you're not listening to my question i asked you do are you aware of have you ever heard of a case in which a court held that it declared terri judgment suit was live after the parties had settled their dispute about liability i cannot cite such a case to know and i'm not aware of one either i should think that's a problem for you it is our position that the disclosure or non disclosure of i know what your position but lots of people want to judiciary to issue advisory opinions and that's just doesn't cut it you need things like the fort we were defendants in the declaratory judgment action filed by the city the city pursued the action for purposes of a determination as to whether the violation of the wiretap act occurred that i can't respond any was just money damages but there was no reference to the declaratory judgment that is correct is a specific reservation along those lines for me the reservation in the documents indicated that we would still fully participate in the declaratory judgment action for the purpose of determining whether or not those tapes should be turned over yes your honor and that was in that with the language what document was that that was in the release and settlement agreement that was reached with the city of are requests for the district judge to love rule on this reservation that you speak of there there was no such request made there was no objection to our participation i cannot say with certainty but i do not believe that that would be a part of the record or the appendix that was the release that was signed by the police officers it was never still remain concerned about disclosure the discussion was that when the case settled for the monetary damage component the police officers would still remain a party and still fully participate in the declaratory judgment action trial that document the release was not i'm almost positive that the statement made a part of the record typically releases would not be a part of the record number one and number two that issue was never discussed  at that district court level high or it may not have been discussed but i know staring at a couple of stipulations one of them you know which was signed by you says the party is by their stipulate to the dismissal of this cause of action with prejudice for the reason that the matters in controversy have been fully settled that sure looks like a dismissal of everything that stipulation of dismiss pertained to the lawsuit that the police officers had against the city of south bend there were multiple claims that were combined and consolidated into the  declaratory judgment action well oh i can't find that in any of these dismissal orders which look unconditional except for the reservation of claims against  we need some further yeah and because of the harms of those orders it so you're just saying those various actions had assigned to them different numbers so are you saying that you know after you provide us with the documents because i think we're going to need the additional documentation that that stipulation is tied to the specific case that asked for monetary damages you as opposed to the case that was asking for the declara thank you your honor may it please the court my name is ed sullivan i represent the city of south bend mr sullivan for you i have a jurisdictional question based on the caption of this case yes or how is it possible to have a suit caption south bend the south bend you out of the city of south bend is a political subdivision of the administration the mayor of south bend yes it's a separate entity and one would think you didn't have a suit captioned president of the united states be congress of the united states between say divisions of general motors this farce the federal government is concerned different parts of a state indeed different parts of south bend or like divisions of general motors were different subsidiaries of general motors and i don't understand how there can be a lawsuit between them i trust you agree with me that one part of general motors can sue another part i do i agree with you so how can one part of indiana that's all the city of south bend is a part of indiana how can one part of indiana sue another part of indiana in federal court i understand how you might be able to do it in state court i don't see all you can do it in federal court you're out of the legislative investigative powers of the legislative body statute in indiana gives the common council the right i don't think you're i don't think you're hearing me it doesn't matter no legislation in indiana can authorize a lawsuit in federal court right it's a principle of federal law that you know it's a palette as are subdivisions of the state and the question is how can one subdivision of the states sue another subdivision of the state in federal court this might be a perfectly fine suit in state court i just don't understand it in federal court the subpoena w served on the mayor your honor and that that federal law governs whether the mayor can respond to that subpoena if there is a rule of federal law that one part of a state can't sue another part of the state and by the way we have decisions to that effect we held for example that you call go couldn't sue it's airport authority based on that principle if there aren't decisions to that effect the fact that there's a question of federal law doesn't matter one part of general motors can't sue another part of general motors even if there's a question about the meaning of the federal transportation safety you know right understand that your point that they're both political subdivisions of indiana but they have separate status within so do you want to overrule the decision saying chicago can't sue the chicago airports where the rivers as i say we've got cases on this the supreme court has cases on this yes your honor and i would be happy to try and brief that issue it came up briefly to the federal trial court well we don't need we may need that and we would also i think need to brief the question whether the issue arises under federal law the question whether the common enforcement but it's a pretty fundamental rule of federal law that with rear exceptions the claim arises under the law that creates the cause of action and the thing that creates the right to issue  not federal law as your honor i'd be happy to address that in subsequent briefing all of this should have been addressed i say this to to you as well as to mr pfeifer  mr palmer jurisdiction is the first question in every federal case the briefs filed by the parties in this case just proceed as if federal jurisdiction were something everybody could ignore it isn't luzhin did not apply after february fourth because they there was knowledge of the taping after that but really those facts were no different prior to february fourth facts establish that there was a capture of conversation private conversations that fit the definition of an interception under twenty five ten fo consequently since it is an interception under the statute then there's the knowledge that was acquired by the south and police department of the capture of crime the on those calls that know doesn't change the status of the intersection and if it's an interception and if it's not authorize and it doesn't fall within the only course exclusion and there's no other exception then that interception violates the wiretap back under twenty five fifteen the contents of those reportings cannot be received in evidence and that's what the subpoena by the common council is attempting to do so the fact that the police department became aware of that interception on february fourth doesn't change the basic fundamental fact that this is an interception under the law the knowledge is irrelevant to the definition of interception and the knowledge is irrelevant to the ordinary course exclusion and the knowledge is irrelevant to the prohibition of use contained in twenty five fifteen consequently when you apply that law then the order then you find that all of the interceptions are prohibited by the wire and judgment bachmann's opinion and up creating a kind of exclusion and implied exclusion he ruled that you need intent even under the ordinary course exclusion analysis and the text of the statute just doesn't support that the structure and the purpose of the wiretap act is to protect individuals privacy in their telephone conversations and to create a process for legitimate law enforcement eavesdropping if the opinion is allowed to stand as it is it leaves unprotected potentially a vast number of individuals and their conversations which occurred without knowledge without consent without permission and not pursuant to a routine non investigative procedure so those are the only that you get to intercept someone's private conversation consent or they participated in the interception or it falls under the definitional exclusion because it's part of a routine and now an investigative process or or for ordinary course by using the naledge of the capture of the calls as the point of departure he's created an exclusion that doesn't exist in the i believe your honor that the facts in the record are very strong in supporting the ordinary course exclusion what we have here is a mistake by secretary who plug wire into a phone jack because she didn't know where else to put that wire and it ended up having an empty office and when someone moved into that office they ended up being report now that's not a routine and it's not a regular part of the south and police department the department captured in a regular way the front desk and the nine one one lines and then they had available to some officers at their choice the ability to hook into the system for specific purposes when one officer had his line hooked up at his request and then retired that line inadvertently began to be used by someone who didn't request that so just as in a model where this court ruled that you need a routine non investigative process to fit within the ordinary course exclusion and  determined there that it was the ordinary course and this court said the facts don't compel a different result here the facts don't compel a different result than what judgement bachmann found that is there was not a routine non investigative process so we believe that the court should be upheld in relation to the order finding that the ordinary course did not apply but if it didn't apply after february fourth it doesn't apply prior to february fourth either as a defense yes your briefer cites that the motion to dismiss was denied that's correct then it just completely ignores the issue it doesn't address it for us to consider right it's for us to and our rule and that's not all we have these settlements to deal with your honor if i may it is much it is i have not agreed with mr piper on many things in this case nor anything in this case it was our understanding that the settlement agreements of which we were not a part of only pertained to the damages suit brought by and you heard my question to m parker which is how is that possible if you settle the dispute about damages isn't any further dispute about declaratory relief simply a request for an advisory opinion it would be as to mr  and but the litigation as to the city of south bend in south bend common council is that i i understand how there is a live dispute between the city and the common council but it's i have a very hard time understanding how mr pfeifer is doing anything other than requesting an advisory opinion if we have the dispute between the city and the common council that's live all right but the question is whether it's within federal jurisdiction on which your brief and the recording of that line was deliberate it was done deliberately and in the police department set out to record that line and it did yes what happened was the person using the wind changed but the recording of a line was deliberate from word intentional recording do you think it means intentionally overhearing a particular person or does it mean intentionally recording a line i believe it means intentionally recording no i mean we've made them y well that's you know one would think so so how did this litigation get sidetracked into the question whether intentionally recording a particular person was relevant it got sidetracked or honor because after trial gave specific questions to the parties that he wanted to be addressed one of the questions wise if they gave recordings are unintentional or they are legal you know but it's playing the recordings were intentional it may be that it was unintentional that a particular person would be heard right so when when it will i won't pursue you on when and how that issue got introduced but the district judge's opinion never explains why he thinks that there has to be an intent to over you're a particular person as opposed to an intent to record a particular line idiotic it did first come up in the post trial preview as  took off on his to station between intentional and unintentional recording to the extent that it is you just completely lose me the recording was intentional over hearing a particular person was addressed in the post trial briefing to treasury and were not a post trial brief we are the u s court of appeals we expect to have that question addressed here it wasn't addressed by the district judge he didn't mention it it's not addressed here we were addressing the issues raised by the district court's opinion itself and his analysis and those were the arguments that we raised the previous to this let me just ask you i'm just curious what is the counsel want access to these one question karen de pape who overheard these conversations when she was checking the system for malfunctions because it was crashing heard something that caused her to believe that conversations involving the police one police officer and whoever else was on the line we don't know because we've never had access to any of it raised an issue that she felt created an ethical problem or a legal problem that the discussions gave concern to whether the police officer is involved in something illegal or unethical whether the police department violated the wiretap in the meantime the chief just continued to record it she continued through that she didn't get any kind of court order or anything like that the chief did not do anything other than what was being done before the the evidence is clear that the recordings would stop only if the chief of police made that decision to stop he did not he did not order it to continue he did not obligation to investigate its agencies and its employees so pursuit to the indiana state statue the common council issue council could investigate whether anything was unethical or illegal as disposed by these telephone conversations in the in the common council is a layer in the federal wiretap act in its requirements that the recording of telephone calls to and from police stations is inherently are met and in within the ordinary course of law enforcement  calls and we've been arguing about whether or not the the exclusion requires it every single call on every single line is required for the ordinary course exclusion to apply common  it's our position that any calls that are recorded that are normal calls into and out of a police department telephone system that was a target as part of  investigation it are subject to the exclusion of the wired but isn't a money distinguishable since they are the police chief intentionally recorded the untapped line but here there was no intentional it was intentional that this line would be recorded what happened was everyone forgot about it being recorded because it got passed down to three or four different officers have to the initial record you know but i'm just saying isn't is helpful to you as you might think that's all i'm saying there's a difference i think there's a distinction here it i don't understand the distinction your honor because you know marty the police ch the police department that all eyes will be recorded except this one line which you can use for personnel costs nine years after he did that he changed his position had ordered that that and unrecorded line suddenly be recorded he did not give notice to anyone in the police department of the change of position the recording at the issuing of madi was on what had been an unreported loss and this court ruled that that didn't matter because calls into and out of police departments are within the ordinary recording of those calls is within the ordinary course of law enforcement business so therefore even though nobody had notice that this line has been recorded in fact there have been representations that the line would not be that it represented those representations or made even after the decision to record this court ruled that the ordinary course exclusion applied we have a very similar can we take this line we recorded this line as part of the police department's telephone system to ensure compliance with with break delay sions by the police line was or offices young's conversations were being record that was in it for the city in the police officer to take in the position that the definitional part of the statute eight hundred twenty five ten creates a situation in which every interception is illegal the definitional part of the statute does a create any there's no question that officer young's mind was not intentional record officer young's conversations were not intentional requests and it's it was very difficult that struck me as being a little unusual in the way they were that so i traced might my take on it was by saying that they were implying that if calls were not a textbook they were not is support of the act the parties had cited a case which i submitted to this court in additional authority which we submitted yesterday the bay g s case which is purely case in the country that i could find that inadvertent they are not covered by the act and therefore they could be discussed the city in the police officers also point to sections twenty five fifteen through twenty five nineteen  was a self contained section of the statute what your plight only two recordings that had been authorized by a court now the words court authorized wiretapping  came as a surprise to us because he'd raised an issue that we had not addressed originally in the summary judgment cert trial lo and behold it looks like he was correct it inadvertent recordings if they are inadvertent i understand your honor since if inadvertence means you need hurt lee hearing a particular person as opposed to inadvertently recording the line and to repeat no one has addressed which of is simply whether or not the ordinary course exclusion applies again going back to the mahdi i believe that none of the distinctions that they've attempted to raise  distinctions with any merit i don't believe this court meant to say that every phone well call and every single line needed to be recorded in order for the ordinary course exclusion to apply i don't believe this court believed their rule that you have to have a set routine in order for the exclusion to apply because if you have a separate team that's known to everybody and everybody knows which lines are being recorded and this court s that's not necessary because everybody knows that calls to and from police departments are recorded and that gives implicit no is a mighty was and i counsel let's let's suppose that somebody sets out to record a line and they have no idea who uses the line but they know that this is a live number and they record it just because they're nosy ok can anybody s about that in your view i assume the answer is no because they had no idea who was going to use the line and therefore with respect to anybody who used the line the recording was inadvertent can that possibly be right no you i don't believe it is it can't possibly be it is it and that is an exception that was set out in a model that that call it the recordings are made for a purpose of intimidation harassment no no intimidation or harassment my hypothetical was there just nosy they're not going to intimidate they're not going to harass they're just nosy and i believe that being nosy would fall within that same thank you out of the city or the officers have never made the argument that the only way the ordinary course solution applies if you record all every single call what we've done is trying to distinguish the facts in a muddy from the facts in this situation it's very clear that this court said that ordinary can't be used in a way that is literal that's actually what the opinion says you can't apply it literally because it's ordinary for police officers to investigate and this court then went on to say ordinary means two things it's got to be a routine non investigatory and the typical place police departments do that i emergency nine one one lines and incoming calls from the public now the cell phone police department is a large urban push partment has hundreds of officers and hundreds of lines and it has a subset which it has put within that ordinary course procedure and it's an indiscriminate recording of a weber happens to be at the front desk so we've never argued that it requires all i see my time is up there right now with regard to supplemental briefing the parties will have fourteen days to submit they brief speaking to jurisdiction