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Justices find email is constitutionally protected speech

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A trial court erred in granting summary judgment to a fire chief and township in a firefighter’s suit following his termination by the chief for sending a personal, political email that the chief believed contained false statements of fact. The firefighter’s email was actually constitutionally protected speech, the Indiana Supreme Court held Thursday.

Bradley Love, a volunteer and part-time firefighter, responded on his personal email account to an email he received regarding the candidate he was supporting for Sugar Creek Township trustee. In the email sent to a few people, Love claimed the Sugar Creek Fire Department has given new sport utility vehicles to lieutenants and captains, and they drive them all over the state; the fire department doesn’t make runs after 4 p.m.; and other claims regarding the fire department.

Fire chief Robert Rehfus was forwarded the email and decided to fire Love because he claimed it contained false statements of fact. Rehfus was supporting a different candidate for trustee.

Love filed a suit under 42 U.S.C. Section 1983 against Rehfus, individually and in his official capacity, and against the Sugar Creek Township arguing his First and Fourteenth Amendment rights were violated. The trial court granted summary judgment in favor of the defendants. The Indiana Court of Appeals reversed.

In Bradley J. Love v. Robert Rehfus, et al., No. 30S01-1004-CV-162, the justices reversed the trial court, finding that Love’s email had constitutional protections under the test set forth in Pickering v. Board of Education, 391 U.S. 563 (1968) and its progeny. There were no genuine issues of material fact as to the facts considered under the Pickering balance – that the public employee was speaking as a citizen and speaking on a matter of public concern – and Love’s speech was protected public-employee speech under the Garcetti-Connick-Pickering test, wrote Justice Frank Sullivan.

The defendants didn’t show that Love’s email had any potential to create difficulties maintaining discipline or loyalty or interfered with working relationships in the fire department. Also, nothing suggested that writing and sending the email interfered with Love’s ability to perform his job or the regular operation of the department. The email can’t be considered a personal attack on Rehfus because it doesn’t reference him by name or position, Justice Sullivan continued.

“The government was not justified in treating Love different from any other member of the general public,” he wrote.

Love argued that the township could be liable for Rehfus’ actions based on Pembaur v. City of Cincinnati, 475 U.S. 469 (1986), because Rehfus had final policymaking authority for the township. The justices found summary judgment in favor of either party on Love’s claim of municipal liability under Section 1983 is inappropriate. An inquiry needs to be made as to whether Rehfus had final policymaking authority regarding the employment of part-time, volunteer firefighters, not whether he was the final policymaking authority with regard to all employment matters for the township or within the department.

The justices ordered on remand that the trial court determine who the final policymaker was, and if it wasn’t Rehfus, determine whether that official regulated to Rehfus the relevant final policymaking authority.

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  1. Whilst it may be true that Judges and Justices enjoy such freedom of time and effort, it certainly does not hold true for the average working person. To say that one must 1) take a day or a half day off work every 3 months, 2) gather a list of information including recent photographs, and 3) set up a time that is convenient for the local sheriff or other such office to complete the registry is more than a bit near-sighted. This may be procedural, and hence, in the near-sighted minds of the court, not 'punishment,' but it is in fact 'punishment.' The local sheriffs probably feel a little punished too by the overwork. Registries serve to punish the offender whilst simultaneously providing the public at large with a false sense of security. The false sense of security is dangerous to the public who may not exercise due diligence by thinking there are no offenders in their locale. In fact, the registry only informs them of those who have been convicted.

  2. Unfortunately, the court doesn't understand the difference between ebidta and adjusted ebidta as they clearly got the ruling wrong based on their misunderstanding

  3. A common refrain in the comments on this website comes from people who cannot locate attorneys willing put justice over retainers. At the same time the judiciary threatens to make pro bono work mandatory, seemingly noting the same concern. But what happens to attorneys who have the chumptzah to threatened the legal status quo in Indiana? Ask Gary Welch, ask Paul Ogden, ask me. Speak truth to power, suffer horrendously accordingly. No wonder Hoosier attorneys who want to keep in good graces merely chase the dollars ... the powers that be have no concerns as to those who are ever for sale to the highest bidder ... for those even willing to compromise for $$$ never allow either justice or constitutionality to cause them to stand up to injustice or unconstitutionality. And the bad apples in the Hoosier barrel, like this one, just keep rotting.

  4. I am one of Steele's victims and was taken for $6,000. I want my money back due to him doing nothing for me. I filed for divorce after a 16 year marriage and lost everything. My kids, my home, cars, money, pension. Every attorney I have talked to is not willing to help me. What can I do? I was told i can file a civil suit but you have to have all of Steelers info that I don't have. Of someone can please help me or tell me what info I need would be great.

  5. It would appear that news breaking on Drudge from the Hoosier state (link below) ties back to this Hoosier story from the beginning of the recent police disrespect period .... MCBA president Cassandra Bentley McNair issued the statement on behalf of the association Dec. 1. The association said it was “saddened and disappointed” by the decision not to indict Ferguson police officer Darren Wilson for shooting Michael Brown. “The MCBA does not believe this was a just outcome to this process, and is disheartened that the system we as lawyers are intended to uphold failed the African-American community in such a way,” the association stated. “This situation is not just about the death of Michael Brown, but the thousands of other African-Americans who are disproportionately targeted and killed by police officers.” http://www.thestarpress.com/story/news/local/2016/07/18/hate-cops-sign-prompts-controversy/87242664/

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