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Officer's statement not protected by First Amendment

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A divided Indiana Court of Appeals has ruled the New Albany Police Department had the right to discipline an officer whose racially charged comments made to fellow officers were leaked to the press and made public.

In Jack Messer v. New Albany Police Department, No. 22A05-1104-MI-179, the COA affirmed a judgment by Floyd Superior Judge Roger Duvall granting summary judgment for the New Albany Police Department.

The case involves the suspension of longtime officer Jack Messer, who made a controversial comment to fellow officers after an internal roll call meeting in January 2010. He said, “The biggest mistake that government made was giving those people civil rights.” After saying he didn’t mean what he had said, a complaint was not filed and his supervising officer didn’t believe a violation had occurred. But several days later, the comment was leaked to the press.

An internal police department investigation cleared Messer of wrongdoing, but a police merit commission complaint found the statement caused offense to the members of the community, raised suspicion of racism within the department, and was considered conduct unbecoming of an officer. The commission suspended him for 30 days, and on judicial review Duvall granted the department’s summary judgment motion.

Messer argued on appeal that his statement was protected by the First Amendment and the department should not have subjected him to discipline for making it. The parties agreed the First Amendment question was before the appellate court and is governed by Pickering v. Board of Education, 391 U.S. 563, 566 (1968), which held the First Amendment protected a public school teacher who wrote a letter to a newspaper in which he criticized the allocation of school funds and the manner by which the school board raised such funds. The court didn’t establish a general constitutional standard applicable to all government-employee-speech cases, but created a two-step test and held the government’s interest as employer must be balanced on a case-by-case basis against the individual and societal First Amendment interests.

Judges Melissa May and Edward Najam found that the department deserved special preference under the Pickering analysis because, like a previous case of City of Indianapolis v. Heath, 686 N.E.2d 940 (Ind. Ct. App. 1997), the officer’s speech caused a disruption and the comment wasn’t made as a private citizen. The value of the speech was also low, according to the court majority, because it wasn’t made as a part of government speech.

Judge John Baker disagreed in a separate opinion that said he would have reversed the trial judge’s summary judgment grant for the police department. He determined the statement was made in private and Messer had no reason to expect it would become public and “disrupt” the department, and because of that this case is distinguishable from Heath. The statement was protected by the First Amendment, Baker wrote.

 

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  • anti-white speech cases
    So a political opinion about civil rights is not protected speech? The article doesnt say but we all know that the officer was white. Only whites tend to get their speech characterized as "racially charged" whatever that means. if a nonwhite person says something white people dont like, that would be protected speech for sure. Basically the courts are now implementing antiwhite laws in spite of race supposedly not being a legit factor in state action. Sure, unless its the judiciary taking it into consideration! Some first amendment cases boggle my mind. The ones that disallow nativities but never seem to involve the frequent conspicuous candle lightings of other sectarian faiths. Or how porn is protected speech but political speech is not. Totally backwards misapplication of the first amendment without any regard for framer's intent. Some first amendment! Only protects speech that the powerful approve of in advance. Maybe I shouldnt even say this or somebody will be pushing out a subpoena to see if they can get me fired, too. THOUGHTCRIME!

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  1. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  2. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  3. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

  4. When I hear 'Juvenile Lawyer' I think of an attorney helping a high school aged kid through the court system for a poor decision; like smashing mailboxes. Thank you for opening up my eyes to the bigger picture of the need for juvenile attorneys. It made me sad, but also fascinated, when it was explained, in the sixth paragraph, that parents making poor decisions (such as drug abuse) can cause situations where children need legal representation and aid from a lawyer.

  5. Some in the Hoosier legal elite consider this prayer recommended by the AG seditious, not to mention the Saint who pledged loyalty to God over King and went to the axe for so doing: "Thomas More, counselor of law and statesman of integrity, merry martyr and most human of saints: Pray that, for the glory of God and in the pursuit of His justice, I may be trustworthy with confidences, keen in study, accurate in analysis, correct in conclusion, able in argument, loyal to clients, honest with all, courteous to adversaries, ever attentive to conscience. Sit with me at my desk and listen with me to my clients' tales. Read with me in my library and stand always beside me so that today I shall not, to win a point, lose my soul. Pray that my family may find in me what yours found in you: friendship and courage, cheerfulness and charity, diligence in duties, counsel in adversity, patience in pain—their good servant, and God's first. Amen."

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