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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. Call it unauthorized law if you must, a regulatory wrong, but it was fraud and theft well beyond that, a seeming crime! "In three specific cases, the hearing officer found that Westerfield did little to no work for her clients but only issued a partial refund or no refund at all." That is theft by deception, folks. "In its decision to suspend Westerfield, the Supreme Court noted that she already had a long disciplinary history dating back to 1996 and had previously been suspended in 2004 and indefinitely suspended in 2005. She was reinstated in 2009 after finally giving the commission a response to the grievance for which she was suspended in 2004." WOW -- was the Indiana Supreme Court complicit in her fraud? Talk about being on notice of a real bad actor .... "Further, the justices noted that during her testimony, Westerfield was “disingenuous and evasive” about her relationship with Tope and attempted to distance herself from him. They also wrote that other aggravating factors existed in Westerfield’s case, such as her lack of remorse." WOW, and yet she only got 18 months on the bench, and if she shows up and cries for them in a year and a half, and pays money to JLAP for group therapy ... back in to ride roughshod over hapless clients (or are they "marks") once again! Aint Hoosier lawyering a great money making adventure!!! Just live for the bucks, even if filthy lucre, and come out a-ok. ME on the other hand??? Lifetime banishment for blowing the whistle on unconstitutional governance. Yes, had I ripped off clients or had ANY disciplinary history for doing that I would have fared better, most likely, as that it would have revealed me motivated by Mammon and not Faith. Check it out if you doubt my reading of this, compare and contrast the above 18 months with my lifetime banishment from court, see appendix for Bar Examiners report which the ISC adopted without substantive review: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS

  2. Wow, over a quarter million dollars? That is a a lot of commissary money! Over what time frame? Years I would guess. Anyone ever try to blow the whistle? Probably not, since most Hoosiers who take notice of such things realize that Hoosier whistleblowers are almost always pilloried. If someone did blow the whistle, they were likely fired. The persecution of whistleblowers is a sure sign of far too much government corruption. Details of my own personal experience at the top of Hoosier governance available upon request ... maybe a "fake news" media outlet will have the courage to tell the stories of Hoosier whistleblowers that the "real" Hoosier media (cough) will not deign to touch. (They are part of the problem.)

  3. So if I am reading it right, only if and when African American college students agree to receive checks labeling them as "Negroes" do they receive aid from the UNCF or the Quaker's Educational Fund? In other words, to borrow from the Indiana Appellate Court, "the [nonprofit] supposed to be [their] advocate, refers to [students] in a racially offensive manner. While there is no evidence that [the nonprofits] intended harm to [African American students], the harm was nonetheless inflicted. [Black students are] presented to [academia and future employers] in a racially offensive manner. For these reasons, [such] performance [is] deficient and also prejudice[ial]." Maybe even DEPLORABLE???

  4. I'm the poor soul who spent over 10 years in prison with many many other prisoners trying to kill me for being charged with a sex offense THAT I DID NOT COMMIT i was in jail for a battery charge for helping a friend leave a boyfriend who beat her I've been saying for over 28 years that i did not and would never hurt a child like that mine or anybody's child but NOBODY wants to believe that i might not be guilty of this horrible crime or think that when i say that ALL the paperwork concerning my conviction has strangely DISAPPEARED or even when the long beach judge re-sentenced me over 14 months on a already filed plea bargain out of another districts court then had it filed under a fake name so i could not find while trying to fight my conviction on appeal in a nut shell people are ALWAYS quick to believe the worst about some one well I DID NOT HURT ANY CHILD EVER IN MY LIFE AND HAVE SAID THIS FOR ALMOST 30 YEARS please if anybody can me get some kind of justice it would be greatly appreciated respectfully written wrongly accused Brian Valenti

  5. A high ranking Indiana supreme Court operative caught red handed leading a group using the uber offensive N word! She must denounce or be denounced! (Or not since she is an insider ... rules do not apply to them). Evidence here: http://m.indianacompanies.us/friends-educational-fund-for-negroes.364110.company.v2#top_info

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