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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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  3. Indiana up holds this behavior. the state police know they got it made.

  4. Additional Points: -Civility in the profession: Treating others with respect will not only move others to respect you, it will show a shared respect for the legal system we are all sworn to protect. When attorneys engage in unnecessary personal attacks, they lose the respect and favor of judges, jurors, the person being attacked, and others witnessing or reading the communication. It's not always easy to put anger aside, but if you don't, you will lose respect, credibility, cases, clients & jobs or job opportunities. -Read Rule 22 of the Admission & Discipline Rules. Capture that spirit and apply those principles in your daily work. -Strive to represent clients in a manner that communicates the importance you place on the legal matter you're privileged to handle for them. -There are good lawyers of all ages, but no one is perfect. Older lawyers can learn valuable skills from younger lawyers who tend to be more adept with new technologies that can improve work quality and speed. Older lawyers have already tackled more legal issues and worked through more of the problems encountered when representing clients on various types of legal matters. If there's mutual respect and a willingness to learn from each other, it will help make both attorneys better lawyers. -Erosion of the public trust in lawyers wears down public confidence in the rule of law. Always keep your duty to the profession in mind. -You can learn so much by asking questions & actively listening to instructions and advice from more experienced attorneys, regardless of how many years or decades you've each practiced law. Don't miss out on that chance.

  5. Agreed on 4th Amendment call - that was just bad policing that resulted in dismissal for repeat offender. What kind of parent names their boy "Kriston"?

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