Messer v. New Albany Police Dep't

Decision Date16 March 2012
Docket NumberNo. 22A05–1104–MI–179.,22A05–1104–MI–179.
Citation965 N.E.2d 54
Parties Jack MESSER, Appellant–Petitioner, v. NEW ALBANY POLICE DEPARTMENT, Appellee–Respondent.
CourtIndiana Appellate Court

Bart M. Betteau, Betteau Law Office, LLC, New Albany, IN, Attorney for Appellant.

Brandon W. Smith, Stanley O. Faith, Faith Ingle Smith LLC, New Albany, IN, Attorneys for Appellee.

MAY, Judge.

Jack Messer was a New Albany police officer who made a racially-charged remark while talking with other officers after roll call. The comment was leaked to the press. The New Albany Police Merit Commission found Messer's statement was conduct unbecoming an officer and suspended him. On judicial review, the trial court granted the New Albany Police Department's motion for summary judgment, finding there was no issue of fact as to whether Messer's conduct was unbecoming an officer and provided a basis for his discipline.

We affirm.1


The facts most favorable to Messer, the non-moving party, are that Messer worked for the New Albany Police Department for twenty-seven years. The Department conducts roll call in an area where the public is not permitted, and matters discussed at roll call are not disseminated to the public. After formal roll call it was typical for small groups of officers to engage in private conversations and discuss matters they believed would never become public.2

After roll call in January 2010, Messer joined in a conversation with some other officers about public housing. During the conversation Messer said, "the biggest mistake that government made was giving those people civil rights." (App. at 126.) Other officers challenged Messer's statement, and Messer explained that he misspoke and did not mean what he said. No officer filed a complaint, and Messer's supervising officer did not believe a violation had occurred so he took no action.

Several days later the comment was leaked to the public. The Police Department conducted an internal investigation and cleared Messer of wrongdoing, but the Police Merit Commission issued a complaint. It found Messer's statement caused offense to members of the community, raised suspicions of racism in the Department, and was conduct unbecoming an officer. The Merit Commission suspended Messer for thirty days. Messer petitioned for judicial review, and the trial court granted the Department's motion for summary judgment.


The purpose of summary judgment is to terminate litigation about which there can be no factual dispute and which may be determined as a matter of law.

Deuitch v. Fleming, 746 N.E.2d 993, 997 (Ind.Ct.App.2001), reh'g denied, trans. denied. When reviewing a summary judgment, we apply the same standard as the trial court. Id. Summary judgment should be granted only if the designated evidentiary material establishes there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Id. On review, we construe the pleadings, affidavits, and designated materials in a light most favorable to the non-movant. Id. Where there are material disputed facts, or if undisputed facts give rise to conflicting reasonable inferences that affect the outcome, they must be resolved in favor of the non-movant. Id. We give careful scrutiny to assure that the losing party is not improperly prevented from having its day in court. Id.

Messer argues his statement was speech protected by the First Amendment, so the Department should not have subjected him to discipline for making it. The parties agree the First Amendment question before us3 is governed by the analysis in Pickering v. Board of Education, 391 U.S. 563, 566, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). In Pickering, the United States Supreme Court 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. Pickering did not establish a general constitutional standard applicable to all government-employee-speech cases, but held the government's interest as employer must be balanced on a case-by-case basis against the individual and societal First Amendment interests. Love v. Rehfus, 946 N.E.2d 1, 9 (Ind.2011), reh'g denied.

Pickering provides a two-step analysis for determining whether the First Amendment protects an employee's speech. First, the employee must have been speaking as a citizen on a matter of public concern. Id. The Department concedes Messer was speaking as a citizen on a matter of public concern. If the employee satisfies this threshold, a balancing test must be applied to determine if the government was justified in treating the employee differently from any other member of the general public. Id.

Even if an employee speaks as a citizen on a matter of public concern, the government employer can restrict the speech if it can prove the First Amendment interests of the employee and society are outweighed by the employer's interest in operational effectiveness and efficiency. Id. at 10. Government employees who speak as citizens on matters of public concern are subject only to speech restrictions that are necessary for their employers to operate efficiently and effectively. Id. Therefore, to justify a retaliatory action, the government must show the speech had the potential to disrupt the efficiency and effectiveness of its operations. Id.

Factors to consider in a Pickering balancing include (1) whether the speech would create problems in maintaining discipline or harmony among co-workers; (2) whether the employment relationship is one in which personal loyalty and confidence are necessary; (3) whether the speech impeded the employee's ability to perform his responsibilities; (4) the time, place and manner of the speech; (5) the context in which the underlying dispute arose; (6) whether the matter was one on which debate was vital to informed decision making; and (7) whether the speaker should be regarded as a member of the general public. Greer v. Amesqua, 212 F.3d 358, 371 (7th Cir.2000), reh'g denied, cert. denied 531 U.S. 1012, 121 S.Ct. 568, 148 L.Ed.2d 487 (2000) (cited in Love, 946 N.E.2d at 13).

The government employer must establish potential disruptiveness or harmful effects of the speech, but is not required to produce actual evidence of disruption. Id. "Substantial weight is given to the government's reasonable predictions of disruption when it acts as an employer." Id. at 11. The government employer does not need to wait for the actual disruption of the office and the destruction of working relationships to manifest before taking action. Id. Still, there must be evidence supporting the threat of harm to the government entity—the government's concerns are not to be taken at face value. Id. Thus, mere allegations of disruption are not sufficient to sustain the government's burden of showing that the speech threatened the efficiency and effectiveness of its operations. Id.

Applying the Pickering balance "is not an exercise in judicial speculation." Id. (quoting Gustafson v. Jones, 290 F.3d 895, 909 (7th Cir.2002) ). Rather, courts must examine the ordinary or foreseeable effect of the conduct to determine whether it would be reasonably calculated to create division or to have impaired discipline. Id. The government must therefore provide sufficient evidence that the employee's speech had the potential to disrupt or harm its operations had the retaliatory action not been taken. Id.

If the government carries that burden, the nature and extent of the potential disruption must be weighed against the First Amendment value of the speech. Id. The government's burden under Pickering varies depending on the nature of the employee's expression. Id. The stronger the First Amendment value of the speech, the stronger showing of harm the government must make to justify its action. Id.

In Love, a fire chief, Rehfus, terminated Love, a firefighter, for sending to a small group of citizens a private email supporting a candidate for township trustee. The candidate pledged that, if elected, he would hire a new fire chief. The chief believed Love's email contained false statements of fact regarding different issues involving the fire department and a public park. Chief Rehfus terminated Love's employment for "conduct unbecoming a firefighter and failure to be truthful." 946 N.E.2d at 7. Our Indiana Supreme Court found the email was constitutionally protected speech under the Pickering test.

The Court noted competing interests:

The government ... has broader discretion to regulate the speech of its employees, because there are different interests at stake when it acts as employer than when it acts as sovereign. When the government acts as an employer, its interest "in achieving its goals as effectively and efficiently as possible" is given greater value. Similar to a private employer, the government must exercise some control over its employees' words and actions to fulfill its public duties. Thus, citizens who become government employees must accept certain limitations on their freedom.
Nevertheless, citizens who work for the government remain citizens and do not completely forfeit their fundamental liberties by virtue of their public employment. Moreover, there is a strong societal interest in allowing public employees to contribute their well-informed ideas 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 militia group, was addressing a public meeting while dressed in a police uniform as a representative of the Indianapolis Police Department. He intentionally referred to Indianapolis Mayor Stephen Goldsmith as "Goldstein" while commenting on the Mayor's fiscal policies. The police chief...

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