The Indiana Court of Appeals has ruled against a woman, convicted of harassing a Kokomo police officer, who argued her comments posted on Facebook were free speech and protected the by the First Amendment.

Tavaris McGuire, 21, died in February 2017 inside the St. Vincent Kokomo emergency room after an overdose in the Howard County jail. His death followed a traffic stop arrest and charges related to meth.

Constance McGuire, his mother, at some point posted statements on Facebook mentioning a Kokomo police officer at the scene of the traffic stop. The statements were visible to over 1,000 people who were “friends” with McGuire on the site.

In those statements, McGuire asserted that the police officer killed her son. She also said, “Yes he set my son up to die. He did do it and so did KPD so y’all better watch out for me cuz I’m coming for all of you.”

McGuire was charged with Class B misdemeanor harassment. A bench trial was held in September 2018 at which McGuire represented herself and elected to testify. She was found guilty and sentenced.

McGuire appealed the ruling, contending her Facebook posts were constitutionally protected, and her conviction amounts to an unconstitutional impairment of speech. McGuire also alleged insufficient evidence supporting the conviction.

In a 2-1 decision, the court of appeals on Tuesday denied that argument, saying prosecutors could reasonably conclude that McGuire’s posts posed a threat to peace, safety and well-being. Therefore, her speech could be regulated without running afoul of the First Amendment.

The court ruled her comments posed a true threat, since she repeatedly posted about the police officer, accusing him of killing her son, urging him to commit suicide, and suggested law enforcement “better watch out this mother is on a rampage and ready to shoot to kill.”

However, Judge Rudolph Pyle dissented with the majority opinion, arguing prosecutors should have charged McGuire with intimidation instead of harassment.

He argued Indiana’s statute defining harassment was “unconstitutionally overbroad and no evidence was introduced showing McGuire’s Facebook posts” fit with the definition of the statute.

“There is no question that McGuire’s Facebook posts are distasteful, crude, and worrisome,” Pyle wrote. “This dissent does not condone the disturbing, crass statements made by McGuire.

“However, our primary duty is to uphold the principles enshrined in the Federal and State Constitutions,” he continued. “When a statute falls short, this Court has a duty to reverse a conviction, even if it might leave a sour taste in one’s mouth.”

A lawsuit filed by McGuire against Kokomo and Howard County officials in the death of her son is currently in a federal court. The suit claims he “died because the Defendants failed to obtain proper medical assistance while he was in ... custody.”

Carson Gerber can be reached at 765-854-6739, or on Twitter @carsongerber1.

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Carson Gerber is a reporter for the Kokomo Tribune and can be reached at 765-854-6739, or on Twitter @carsongerber1.

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