City of Indianapolis v. Heath

Decision Date19 November 1997
Docket NumberNo. 49A02-9612-CV-804,49A02-9612-CV-804
Citation686 N.E.2d 940
PartiesCITY OF INDIANAPOLIS, Appellant-Defendant, v. James HEATH, Appellee-Plaintiff.
CourtIndiana Appellate Court


The City of Indianapolis appeals the Marion Superior Court's reversal of a decision of the Indianapolis Civilian Police Merit Board (the Merit Board) which upheld the suspension of Officer James R. Heath of the Indianapolis Police Department (IPD) for statements he made in violation of IPD rules and regulations. The City presents the following issue for review:

Police officer Heath, while addressing a public meeting and dressed in a police uniform as a representative of the Indianapolis Police Department intentionally referred to Indianapolis Mayor Stephen Goldsmith as "Goldstein" while commenting upon the Mayor's fiscal policies. Were Officer Heath's remarks protected speech under the federal and state constitutions?

We reverse.

These are the facts. Officer Heath is a veteran IPD police officer. In the days following the bombing of the Alfred P. Murrah Building in Oklahoma City, attention was turned nationwide onto the activities and members of private militia and paramilitary groups because of the belief held by some at the time that a militia group may have been responsible.

In early May of 1995 in Indianapolis, television station WTHR-TV aired a five-part series entitled "Patriot Powder Keg", focusing on militias in Central Indiana. On May 3, part 3 of the series featured Heath, in uniform as a representative of the IPD. When off duty, Heath is a leader of a Johnson County militia group. 1 The program included clips of interviews with Heath filmed while riding in Heath's patrol car. The program also included excerpts of a speech Heath delivered to a militia group called the Sovereign Patriots. Although the meeting was held in the Jonathan Byrd's Cafeteria located in Greenwood, Indiana and was open to the public, it appears that the footage of Heath's speech was taken by a concealed camera.

In the video of Heath's presentation, he is depicted as making the following comment: "We've seen power corrupt, abuse of power with kings, queens, mayors, Mayor Goldsmith. What do we call him? I better not say it, ah well, we call him Goldstein." Record at 9.

On May 5, IPD Police Chief James Toler served Heath with notice that his comments had violated several IPD rules and regulations because he had made anti-Semitic remarks about the Mayor. As a result, Heath was demoted from sergeant to patrol officer and was suspended for thirty days without pay. Heath appealed his demotion and suspension to the Merit Board, which conducted a hearing and affirmed the sanctions. Heath thereafter appealed the Merit Board's decision to the Marion Superior Court.

The parties submitted briefs and the trial court conducted a hearing in the matter. The court reversed the Merit Board's decision, issuing the following conclusions of law:

1. Officer Heath's statement, while perhaps inappropriate and even offensive to some members of the community, was protected speech under the First Amendment to the Constitution of the United States and Article I, § 9 of the Constitution of the State of Indiana.

2. There is no evidence in the record which would support the Merit Board's finding that Officer Heath's conduct was detrimental to the efficient operation and the general discipline of the Indianapolis Police Department.

3. The Merit Board failed to demonstrate a compelling reason for the disciplinary action taken against Officer Heath when balanced against his free speech guarantees under the Constitution of the United States and the Constitution of the State of Indiana.

4. The Merit Board's decision was arbitrary and capricious, unsupported by substantial evidence, and violated constitutional principles as applied to Officer Heath.

Record at 102-03. The City appeals the Marion Superior Court's decision.

This court has recently set out the standard by which a public employee's protected speech is measured:

"The law is clear that public employees do not abandon their First Amendment rights upon entering the work place. '[A] State cannot condition public employment on a basis that infringes the employee's constitutionality protected interest in freedom of expression.' As noted in Connick [v. Myers (1983) ] [461 U.S. 138, 145, 103 S.Ct. 1684, 1689, 75 L.Ed.2d 708], the First Amendment was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people. '[S]peech concerning public affairs is more than self-expression; it is the essence of self-government.' Accordingly, the U.S. Supreme Court has frequently reaffirmed that speech on public issues occupies the 'highest rung of the hierarchy of the First Amendment values,' and is entitled to special protection. A three-part test for determining whether an employee was wrongfully discharged for 'speech' was developed in Connick. This test was recently discussed by the Indiana Supreme Court in Indiana Department of Highways v. Dixon (1989), Ind. 541 N.E.2d 877, 881 as follows:

'First, the employee must be speaking on a matter of public concern about which free and open debate is vital to the decision making of the community.

Second, the reviewing court must balance the interests of the employee, as a citizen, in commenting upon matters of public concern and the State's interest, as an employer, in running an efficient operation. Third, the employee's protected conduct must be a motivating factor in the State's decision to [discipline the employee.]' [Citations omitted.]" (Emphasis in original.)

Lach v. Lake County, 621 N.E.2d 357, 358 (Ind.Ct.App.1993), trans. denied, (quoting Campbell v. Porter County Bd. of Com'rs, 565 N.E.2d 1164, 1167 (Ind.Ct.App.1991)). A fourth step was added by the United States Supreme Court in Waters v. Churchill, 511 U.S. 661, 114 S.Ct. 1878, 128 L.Ed.2d 686 (1994). Pursuant to Waters, a court must determine whether the employer conducted an adequate investigation of the speech in question. The burden is upon the State to justify the imposition of sanctions. Indiana Dept. of Highways v. Dixon, 541 N.E.2d 877 (Ind.1989).

The first part of our inquiry requires a determination of whether Heath's speech addressed a matter of public concern. "Whether an employee's speech addresses a matter of public concern must be determined by the content, form, and context of a given statement, as revealed by the whole record." Connick, 461 U.S. at 147-48, 103 S.Ct. at 1690. The Connick court described speech upon matters of public concern as "relating to any matter of political, social, or other concern to the community." Id. at 146, 103 S.Ct. at 1690. Such inquiry focuses not upon what might incidentally be conveyed by the fact that an employee spoke in a certain way, but rather upon "the point of the speech in question." Dambrot v. Central Mich. Univ., 55 F.3d 1177, 1187 (6th Cir.1995) (quoting Linhart v. Glatfelter, 771 F.2d 1004, 1010 (7th Cir.1985)). We must ask to what purpose the employee spoke. Dambrot, 55 F.3d 1177.

The record is susceptible to differing interpretations concerning the context in which the statement in question was made. The videotape aired by WTHR-TV depicts Heath making an apparently unsolicited comment about Mayor Goldsmith while addressing the use of power in government. However, Heath testified before the Merit Board that after stating "We've seen power corrupt, abuse of power with kings, queens, mayors," Record at 9, there ensued a discussion of Mayor Goldsmith's fiscal policies that was initiated by members of the audience. According to Heath,

I said that everybody abuses power, I said King George, kings, queens and mayors. When I said mayor, they started talking, which there was a cut in the film, but there isn't a cut in the tape that I gave to the Jewish Relations Council. They started talking and....

* * * * * *

[Question]: You mentioned a cut in the tape. Are you saying that the piece as it was portrayed on television, as running smoothly in one solid quote, did not occur that way?

[Heath]: That's right. It did not.... What happened was we were talking about the abuse of power, as I had mentioned, and everything else. I said kings, queens, and mayors. Before that, I said I had even used my police powers coming down there that day because I was speeding. I said people abuse power, kings, queens and mayors.

When I said mayors, somebody mentioned Mayor Goldsmith sold out the Hoosier Dome and people said different things. I said, "Wait a minute. We're getting off track." They said, "Well, what do you guys call him?" I said, "Well, I shouldn't say." Then I said, "Oh, well, we call him Goldstein."

[Question]: Now, stop there. The questions that came from the audience and the comments about Mayor Goldsmith do not appear on that tape; is that correct?

[Heath]: Right.

[Question]: And it was due to a question from the audience that you were asked what do you guys, law enforcement officers of Indianapolis, call the Mayor; is that right?

[Heath]: Right.

Merit Board Transcript at 43-44.

Although the Merit Board made no express finding regarding whether the comment in question came about as Heath explained, Heath's version was not disputed by the City. Accepting Heath's version as true, the comment in question was made during a public meeting in the midst of a discussion about the fiscal policies of the Mayor of City of Indianapolis. As such, it can hardly be disputed that the comment addressed a matter of political concern to the community. Inasmuch as speech about political matters is at the core of the free speech guarantee under both the Indiana and United States Constitutions, Heath's comments satisfy the first inquiry under the...

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2 cases
  • Messer v. New Albany Police Dep't
    • United States
    • Indiana Appellate Court
    • March 16, 2012
    ...and opinions to public debate. Id. at 9 (citations omitted).Messer's statement was more like that addressed in City of Indianapolis v. Heath, 686 N.E.2d 940 (Ind.Ct.App.1997), trans. denied, and it was therefore permissible to discipline him for it. Heath, a police officer and leader of a m......
  • City of Indianapolis v. Heath
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    • Indiana Supreme Court
    • May 27, 1998
    ...1193 698 N.E.2d 1193 City of Indianapolis v. Heath Supreme Court of Indiana May 27, 1998 686 N.E.2d 940 Transfer All Justices concur. ...

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