INDIANAPOLIS (CN) — The Indiana Supreme Court skewered attorneys Tuesday on ESPN’s claim that campus police files on Notre Dame athletes are public records.
“Explain to me how Notre Dame falls into an agency of any level of government,” Chief Justice Loretta Rush said at one point during this morning’s hearing.
The case stems from a physical fight that broke out at Notre Dame on Sept. 6, 2014, about an hour before a football game between the Fighting Irish and the University of Michigan. A band had been holding a concert in the main building, and witnesses reported that a man fell down, or possibly through a stairwell, with blood pouring from his head.
ESPN reporter Paula Lavigne sought access to a campus police report on the incident, plus access to school logs related to 275 Norte Dame Student athletes, regardless if they were named as victims, suspects or witnesses in any incidents.
The St. Joseph Superior Court ultimately ruled against ESPN, saying Notre Dame was not subject to public-records law as a private university.
Notre Dame is appealing to the Indiana Supreme Court, however, after the Court of Appeals reversed against it in March, saying Norte Dame police force qualified as a public agency.
At a 45-minute hearing Monday, ESPN’s lawyer Maggie Smith told the five-justice court that university police are “are engaging in a governmental function” and should be subject to public-records laws.
Notre Dame’s attorney Peter Rusthoven argued that Indiana’s laws do not allow for a broad interpretation. Since Notre Dame is not a government agency, it is not subject to such police-record requirements, he said.
“And whatever else Notre Dame may be, it is not the elected representatives of government,” Rusthoven said.
ESPN’s attorney Smith meanwhile argued that other Indiana laws have described private police forces as “an agency” and as “a law enforcement agency.” This language allows for a private police department to be treated as any other similar police force, she said.
This distinction is a contentious point of the case, as Notre Dame’s police force can perform law-enforcement actions off its own campus, and yet may be treated differently then local law enforcement would be.
When asked if state laws purposefully treat private and public police forces differently,
Rusthoven answered, “Yes, absolutely.”
“This is part of the policy choices that inform the lines the legislature draws,” Rusthoven added.
Notre Dame’s own website likens its security to a fully fledged police force.
“Notre Dame police officers complete state mandated training requirements established for law enforcement officers and have the same legal authority as any other police officer in Indiana,” according to the “about” page on Notre Dame’s website.
Smith closed his argument with an emphasis on transparency in all law enforcement.
“We’ve got to get back to the fact here that we are talking about the core power of the state, the opportunity to deprive an individual of a liberty interest,” Smith said.
Indiana Attorney General Greg Zoeller has echoed such a sentiment in the past.
“The public has the right to transparency and accountability when police power is being exercised, and we look forward to further judicial clarifications on the scope of the public’s right to know in future decisions by our courts,” Zoeller said after the Court of Appeals ruled in favor of ESPN.
Justices Robert Rucker, Steven David, Mark Massa and Geoffrey Slaughter joined the court’s chief for today’s hearing. A ruling is expected in the coming weeks.
Indiana Gov. Mike Pence vetoed a bill in March that would have allowed private universities to keep their police records private. Since then, the Republican has joined Donald Trump on the presidential campaign route. Pence made headlines this week for refusing to say that Trump’s supporters in the Ku Klux Klan belong in what Hillary Clinton called “a bag of deplorables.”
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