Man sues Portage claiming free speech rights violated
By James D. WOlf Jr. Post-Tribune correspondent May 26, 2012 7:56PM
Updated: July 3, 2012 11:24AM
PORTAGE — A Portage man is suing the city for allegedly violating his right to free speech over what he says was a joke about spitting in a police officer’s drink.
Timothy J. Hill had been charged in March 2009 with Class D felony attempted battery by bodily waste to a law enforcement officer.
According to a court file, Hill repeatedly offered a drive-through worker $50 to spit in the drink of the police car behind him in line.
However, the Porter County Prosecutor’s office dismissed the charges two years later in March 2011.
Hill’s conversation with the fast food worker happened in January 2009, when Hill saw the police car behind him in line at the McDonald’s on Central Avenue.
The criminal file and the lawsuit file both state that the worker told Officer Rich Schmitt what Hill said, then Schmitt pulled Hill over and ticketed him for not signaling a lane change.
According to the criminal file, the courts dismissed the felony charge on the motion of attorney Daniel Berning, who argued that the law states that a police officer has to be engaged in the performance of official duties for the felony charge to be valid.
Hill’s attorney, Doug Bernacchi, stated by email that because the charge came so long after the incident, Hill never spent time in jail nor was officially arrested.
However, Hill is suing for actual damages, mental anguish and emotional distress.
“My client suffered for three years emotionally and financially as this matter took three years to be resolved by being dismissed. The charges were unfounded and unsupported from the beginning,” Bernacchi stated.
The lawsuit filed on May 18 names Portage Police Officer R. Schmitt, the city of Portage and former Police Chief Mark Becker.
Becker and the city failed to properly train its police officers, the suit alleges, and were “aware of the constitutional violations joined in conspiracy with Portage Police Officer R. Schmitt, to violate Mr. Hill’s constitutional rights.”
It states said that Hill only jokingly told the drive-through worker to spit in the drink and that Schmitt violated Hill’s “Fourteenth Amendment right to liberty when there was no probable cause in an effort to chill Mr. Hill’s rights to free speech.”
The lawsuit mentions no specific suffering or expenses, although it does mention that Hill, as a building contractor, is a local businessman.
“The damages will be brought out in trial,” Bernacchi said.
Portage City Attorney Greg Sobkowski said he was aware of the suit but had no time to review it.
Becker would be covered under the city’s insurance because he was an employee at the time of the alleged incident, Sobkowski said.