# Davidson v. Perron

> Indiana Court of Appeals · August 23, 1999 · 716 N.E.2d 29

URL: https://www.frixlaw.com/law-library/cases/9711299

## Case

- **Full name:** Bruce DAVIDSON, Appellant-Plaintiff, v. James PERRON, Mayor and City of Elkhart, Indiana, Appellees-Defendants
- **Court:** Indiana Court of Appeals
- **Decided:** August 23, 1999
- **Citations:** 716 N.E.2d 29; 1999 Ind. App. LEXIS 1424; 1999 WL 637066
- **Precedential status:** Published
- **Opinion:** Concurring in part by Kirsch
- **Judges:** Najam, Garrard, Kirsch
- **Cited by:** 60 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9711299

## Opinion text

KIRSCH, Judge,
concurring in part and dissenting in part.
I fully concur in the majority’s resolution of the issues involving timeliness of notice under the Indiana Tort Claims Act and the dismissal pursuant to Indiana Trial Rule 12(B)(8). I also fully concur with its statement of the law applicable to Davidson’s original complaint for defamation. From its application to the facts of this case, however, I respectfully dissent.
Like every defamation case, this one involves a collision between two fundamental rights: the right to freedom of speech provided and protected by the First Amendment to the United States Constitution and .the right of individuals to be protected from false attacks on their reputations. See Journal-Gazette Company v. Bandido’s, Inc., 712 N.E.2d 446, 448 (Ind.1999). Defamation cases require courts to draw a line between “speech unconditionally guaranteed and speech which may legitimately be regulated.” New York Times Co. v. Sullivan, 376 U.S. 254, 285 , 84 S.Ct. 710 , 11 L.Ed.2d 686 (1964). In drawing that line, courts must assure themselves that the line drawn by its judgment “does not constitute a forbidden intrusion on the field of free expression.” Id. In doing so, courts must examine for themselves “the statements in issue and the circumstances under which they were made .... ” Id.
Here, the alleged defamatory statement is contained in the first sentence of the last paragraph of a letter to the editor written in response to one written by Bruce Davidson, and it is in this context that the statement must be examined. The entire paragraph reads as follows:
*39 “Police certainly have privileges, but I do not believe that they should be abused in the way that some officers like Davidson have done. The so-called vote of no confidence amounted to only a cheap shot against the chief.”
Record, p. 224.
The majority correctly notes that the alleged defamatory statement “is to be viewed in context and given its plain and natural meaning, according to the idea it is calculated to convey and the persons to whom it is addressed.” Opinion, p. 37, citing Street v. Shoe Carnival, 660 N.E.2d 1054, 1058 (Ind.Ct.App.1996). When viewed in context, the statement that the writer believed that certain officers including Davidson abused privileges accorded to police refers to the vote of no-confidence which the writer believed was “a cheap shot.”
I believe that the majority fails to view the statement in context and fails to look to the idea that the statement is calculated to convey. Rather, it focuses solely on one sentence of one paragraph of a seven paragraph letter. Looking only at this sentence, the majority says that a reasonable trier of fact could conclude the statement amounted to a charge of official misconduct. Opinion, p. 37.
In McQueen v. Fayette County Sch. Corp., 711 N.E.2d 62, 66, 67 (Ind.Ct.App.1999), trans. pending, we said that the test of whether an opinion expressing a derogatory opinion is actionable is whether the statement creates the reasonable inference that the opinion is justified by the existence of unexpressed defamatory facts. Neither the statement here at issue, nor the letter in which it is contained, makes reference to any matter from which an abuse of privilege may be inferred other than the vote of no confidence. Neither the letter, nor the statement, implies knowledge of any defamatory fact. When viewed in context, the statement simply sets forth the writer’s opinion that the vote of no confidence in the police chief was an abuse of privilege. The expression of this opinion is entitled to constitutional protection. By allowing this action to go forward, the majority’s holding denies that protection.
I would reverse the trial court’s decision and remand for dismissal of Davidson’s defamation claim for failure to state a claim upon which relief can be granted.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9711299. Public record. Not legal advice.