IN THE
Court of Appeals of Indiana
FILED
Craig R. Hendry, Sep 15 2026, 8:37 am
CLERK
Appellant-Defendant Indiana Supreme Court
Court of Appeals
and Tax Court
v.
State of Indiana,
Appellee-Plaintiff
September 15, 2026
Court of Appeals Case No.
26A-CR-33
Appeal from the Greene Superior Court
The Honorable Dena A. Martin, Judge
Trial Court Cause No.
28D01-2403-CM-100
Opinion by Judge Weissmann
Judges Bailey and Brown concur.
Court of Appeals of Indiana Opinion 26A-CR-33 September 15, 2026 Page 1 of 23
Weissmann, Judge.
[1] Craig Hendry told the Linton City Council that when Linton police officers
served a warrant on him at his home, the officers “kicked in” his front door,
broke into his home, “kidnapped” him, and placed him in a “concrete cage” for
45 days against his will. State’s Ex. 2, 0:25-4:30. Based on these comments, the
State charged Hendry with Class B misdemeanor false informing under Indiana
Code § 35-44.1-2-3 (False Informing Statute). Hendry, who represented himself
throughout the trial proceedings, moved to dismiss the charge on grounds that
the False Informing Statute, as applied to him, was unconstitutional under both
the federal and state constitutions. The trial court denied the motion, and the
case proceeded to a jury trial. The jury found Hendry guilty after deliberating
only briefly.
[2] Now represented by counsel, Hendry appeals, claiming his comments were
constitutionally protected speech and that the False Informing Statute is
unconstitutional, both on its face and as applied to him. But Hendry presents
arguments on appeal that he did not raise in the trial court. We conclude he
waived part of his appellate claims and that his remaining arguments do not
establish that the trial court erroneously denied his motion to dismiss. We
therefore affirm.1
1
The American Civil Liberties Union of Indiana has submitted a brief as amicus curiae in favor of Hendry.
We thank the organization for its submission.
Court of Appeals of Indiana Opinion 26A-CR-33 September 15, 2026 Page 2 of 23
Facts
A. Hendry’s Arrest on July 26, 2022
[3] Shortly after 10:00 p.m. on July 26, 2022, Linton Police Officers Cayden
Walker and Janzen Franklin, along with Greene County Sheriff’s Deputy
Michael Stanley, went to Hendry’s mobile home in Linton to execute an arrest
warrant issued out of Vigo County. Officer Walker knocked on the front door,
but no one answered. This was the officers’ first visit to the residence that day,
and the exterior of the front door was, at that time, undamaged. The officers
believed Hendry was home. They saw lights and heard a television and a male
voice within the home. In addition, Hendry’s vehicle was parked nearby.
[4] The officers remained on the scene continuously for about an hour while they
waited for issuance of a warrant to enter the residence. During that time, the
officers did not observe anyone enter or leave Hendry’s home. Once the
warrant was secured, the officers again approached the front door, knocked,
and warned Hendry that they would kick in the door if he did not answer.
Hendry opened the door and was arrested pursuant to the warrant without
incident. The officers noted cats inside the residence and closed and latched the
door as they left. Hendry told the officers he had heard them knocking earlier in
the evening.
[5] After confirming no unattended children were present in Hendry’s home,
Officer Franklin drove Hendry to a Vigo County officer, who then took custody
of him and transported him to the Vigo County Jail. In total, Hendry was in the
Court of Appeals of Indiana Opinion 26A-CR-33 September 15, 2026 Page 3 of 23
custody of the original arresting officers for less than an hour. Hendry then was
jailed in Vigo County for the next 1½ months.
B. Chief Clark’s Investigation in November 2023
[6] In November 2023—approximately 16 months after the arrest—Hendry called
Linton Police Department Chief Paul Clark. Hendry complained to Chief Clark
that Linton officers had “kicked the door in” during the July 2022 arrest and
damaged it. Tr. Vol. II, pp. 130-31. Hendry sought repair or replacement of the
door. Chief Clark, who had no independent knowledge of the incident,
investigated the complaint by reviewing the arresting officers’ body camera
footage. Based on that review, Chief Clark concluded that Hendry’s door had
not been kicked in or otherwise damaged during the arrest.
C. The City Council Meeting on March 11, 2024
[7] On March 11, 2024—four months after the call to Chief Clark and 20 months
after Hendry’s arrest—Hendry spoke at a Linton City Council meeting during
the public-comment session. The City Council funds the Linton Police
Department.
[8] During Hendry’s approximately 4½-minute address to the Council, he stated
that Linton police officers, whom he described as “armed thugs,” had come to
his home while he was not there, “kicked in” his door, and searched the
residence looking for him. State’s Ex. 2, 0:25-0:40. Hendry further stated that,
when he returned home around midnight, the “aggressors” returned,
Court of Appeals of Indiana Opinion 26A-CR-33 September 15, 2026 Page 4 of 23
“kidnapped” him, and “hauled [him] to a concrete cage where they kept [him]
against [his] will for a period of 45 days.” Id. at 1:00-1:31.
[9] Hendry also accused Linton police of “terrorizing” people in the community
that “seem to be undesirable to them.” Id. at 2:30-2:40. He requested the
Council abolish the Linton Police Department, which he described as a
“terrorist organization” and “poison.” Id. at 3:00-3:10, 4:30-4:40. Hendry also
stated, “Of course, we know the Linton City Council won’t abolish these
useless and dangerous tax leeches because [it] also seem[s] to fall into this same
category.” Id. at 2:40-2:50. After quoting Thomas Jefferson, Hendry ended his
presentation by noting that “in past days, the penalties for taking a man’s liberty
have risen to the level of death, and I think that shouldn’t be forgotten.” Id. at
3:15-4:30.
[10] A member of the Council stated that it had “no intention of abolishing the
Linton Police Department.” Id. at 4:45-4:50. When the Council member asked
Chief Clark to respond, the Chief stated that the “public records” of Hendry’s
case “speak for themselves.” Id. at 5:00-5:10. Appearing agitated, Hendry noted
that the body camera footage of his arrest had not been released and accused
the officers of breaking into his home. The Council soon adjourned the
meeting. Hendry later posted on his YouTube channel a video of his comments
and the Council’s reaction to them.
Court of Appeals of Indiana Opinion 26A-CR-33 September 15, 2026 Page 5 of 23
D. The Charge, Motion to Dismiss, and Trial
[11] On March 18, 2024, the State charged Hendry with one count of Class B
misdemeanor false informing based on his statements to the Council that
Linton officers kicked in his door without legal justification and later kidnapped
him. On October 11, 2025, Hendry moved to dismiss the charge, arguing that
his prosecution violated both the First Amendment and the Indiana
Constitution and that the False Informing Statute is unconstitutionally vague as
applied to him. During the hearing on the motion to dismiss, Hendry argued
that his statements were constitutionally protected opinions. He never asserted
either in his motion to dismiss or at the hearing that his statements constituted
rhetorical hyperbole. The trial court took the motion to dismiss under
advisement at the end of the hearing and denied it without a stated rationale the
following day.
[12] At Hendry’s ensuing jury trial, the State presented evidence that Hendry’s door
had not been kicked in or damaged by police and that Hendry had been
lawfully arrested pursuant to a valid warrant. This evidence included the
testimony of the officers involved in the arrest, along with body camera footage,
evidence of the arrest warrant and the warrant to enter the residence, and Chief
Clark’s testimony regarding his review of the body camera footage. As part of
the State’s case-in-chief, the Linton Mayor testified that he was “shocked” by
Hendry’s allegations and understood them as claims of misconduct. Tr. Vol. II,
p. 188.
Court of Appeals of Indiana Opinion 26A-CR-33 September 15, 2026 Page 6 of 23 [13] Hendry maintained that, at the time of his comments to the Council, he
believed his statements to the Council were true and “absolutely genuine.” Id.
at 127-29, 217. He also alleged that his statements were “hyperbole” that could
not form the basis of a criminal conviction. Id. at 127-28. During Hendry’s
defense, his neighbor testified that he had seen police arrive at Hendry’s home
earlier in the day of Hendry’s arrest, heard a “loud bang,” and watched two
officers enter the home while Hendry was away. Id. at 193-94. The neighbor
conceded on cross-examination that he did not reveal his observations for about
a year after the incident.
[14] At the close of evidence, Hendry moved for a directed verdict, which the trial
court summarily denied. Minutes after the jury began deliberating, it returned a
guilty verdict on the charge of Class B misdemeanor false informing. Two
weeks later, the trial court sentenced Hendry to 160 days in the Greene County
Jail, with 17 days credit for time served. It also imposed a $100 fine.
Discussion and Decision
[15] Hendry appeals, challenging only the trial court’s denial of his pretrial motion
to dismiss. Because he raises issues on appeal that he never presented to the trial
court, we find those issues waived. As to his remaining claims, we conclude
that the False Informing Statute, as applied to him, is not unconstitutional
under the First Amendment to the United States Constitution or Art. 1, § 9 of
the Indiana Constitution and is not unconstitutionally vague.
Court of Appeals of Indiana Opinion 26A-CR-33 September 15, 2026 Page 7 of 23
I. Waived Appellate Claims
[16] In his motion to dismiss and related arguments, Hendry alleged the False
Informing Statute is unconstitutional under the First Amendment and Art. 1, §
9 of the Indiana Constitution because the Statute, as applied, penalizes him for
his protected speech. He also alleged that the Statute is unconstitutionally vague
as applied. On appeal, Hendry claims for the first time that the Statute is also
unconstitutional on its face because it allegedly is a content-based, viewpointdiscriminatory restriction that fails strict scrutiny for under-inclusiveness. Issues
not presented to the trial court—even those with constitutional dimensions—
are waived and therefore may not be raised on appeal. Safeco Ins. Co. of Ind. v.
Blue Sky Innovation Grp., 230 N.E.3d 898, 907 (Ind. 2024); Holtswarth v. Oliver,
279 N.E.3d 360, 367 (Ind. Ct. App. 2026). We therefore address only Hendry’s
challenges to the Statute “as applied.”
II. Standard of Review as to Remaining Claims
[17] “‘We review a trial court’s ruling on a motion to dismiss a charging information
for an abuse of discretion,’” which occurs when the court misinterprets the law.
State v. S.T., 82 N.E.3d 257, 259 (Ind. 2017) (quoting A.-H.Y. v. State, 975
N.E.2d 1273, 1276 (Ind. 2013)). “A challenge to the constitutionality of a
statute is a ‘pure question of law,’ which we review de novo.” Id. (quoting State
v. Doe, 987 N.E.2d 1066, 1070 (Ind. 2013)). All statutes are presumptively
constitutional, and we resolve all reasonable doubts concerning a statute in
favor of constitutionality. Id. “That being said, unlike the higher burden faced
by those making a facial constitutional challenge, those challenging the statute
Court of Appeals of Indiana Opinion 26A-CR-33 September 15, 2026 Page 8 of 23
as applied ‘need only show the statute is unconstitutional on the facts of the
particular case.’” Id. (quoting State v. Zerbe, 50 N.E.3d 368, 369 (Ind. 2016)).
[18] The False Informing Statute specifies in relevant part:
A person who . . . makes a complaint against a law enforcement
officer to the state or municipality . . . that employs the officer:
(A) alleging the officer engaged in misconduct while
performing the officer’s duties; and
(B) knowing the complaint to be false . . .
commits false informing, a Class B misdemeanor.
Ind. Code § 35-44.1-2-3(d)(5) (2023).
III. The False Informing Statute Is Not Unconstitutional as
Applied to Hendry’s Speech
[19] In support of his claim that the False Informing Statute is unconstitutional as
applied under both the First Amendment and Art. 1, § 9, Hendry’s central
argument is that his statements to the City Council were rhetorical hyperbole:
that is, “imaginative expression” that no reasonable listener would take as an
assertion of fact. Appellant’s Br., p. 8. Hendry argues that the First Amendment
and Art. 1, § 9 therefore barred his prosecution, regardless of the Statute’s
general validity.
[20] The State responds that Hendry waived this issue by failing to present the
hyperbole theory to the trial court. Without framing his statements as rhetorical
hyperbole, Hendry claimed in the trial court that he believed the statements
Court of Appeals of Indiana Opinion 26A-CR-33 September 15, 2026 Page 9 of 23
were literally true at the time he made them and that the statements were his
opinions and political speech that were constitutionally protected. We need not
resolve the waiver question because Hendry’s claim fails on the merits under
both the First Amendment and Art. 1, § 9.
A. First Amendment
[21] The First Amendment protects “imaginative expression” and “rhetorical
hyperbole” from being treated as actionable false statements of fact. Milkovich v.
Lorain J. Co., 497 U.S. 1, 20 (1990); U.S. Const. amend. I; see also Brewington v.
State, 7 N.E.3d 946, 960-61 (Ind. 2014). This protection does not turn on
whether the speaker labels the statement an “opinion.” Milkovich, 497 U.S. at
21; see also Brewington, 7 N.E.3d at 961. Instead, the dispositive question is
whether a reasonable listener, in context, would understand the statement as
conveying an assertion of fact that is susceptible of being proved true or false.
Milkovich, 497 U.S. at 21; Brewington, 7 N.E.3d at 961. Loose, figurative
language—calling a legal but distasteful negotiating tactic “blackmail” or a
political adversary a “traitor” or “scab”—receives full protection precisely
because no reasonable audience would understand it as a literal factual charge.
Greenbelt Coop. Publ’g Ass’n v. Bresler, 398 U.S. 6, 14 (1970); Old Dominion Branch
No. 496, Nat’l Ass’n of Letter Carriers v. Austin, 418 U.S. 264, 284-86 (1974).
[22] This First Amendment protection is not unlimited, however. A statement that
asserts, or reasonably implies, a specific and verifiable fact about a public
official’s conduct—an accusation of perjury or a particularized charge of official
Court of Appeals of Indiana Opinion 26A-CR-33 September 15, 2026 Page 10 of 23
misconduct—is not converted into protected hyperbole merely because it is
dramatic, colorful, or embedded in a broader rant. Milkovich, 497 U.S. at 21-22
(allegation implying perjury not hyperbole); Davidson v. Perron, 716 N.E.2d 29,
33-34 (Ind. Ct. App. 1999) (statement that a named officer had “abused” his
authority was an implied assertion of verifiable fact, not opinion, because it
“amounted to a charge of official misconduct”). Context cuts both ways: the
same speech may contain protected epithets alongside unprotected factual
assertions. A court must examine each challenged statement rather than treat
the entire speech as an undifferentiated unit. See Milkovich, 497 U.S. at 21 (loose
or figurative language “negate[s] the impression” that a speaker is “seriously
maintaining” a factual assertion—an inquiry that depends on the particular
words used, not merely their surroundings).
[23] The false informing charge here did not rest on Hendry’s characterization of the
Linton Police Department as a “terrorist organization” of “tax leeches” or on
his description of the officers as “armed thugs.” App. Vol. II, p. 16. Those
characterizations—like “blackmail” in Bresler or “traitor” in Austin—are the
kind of loaded, undefined epithets that no reasonable listener would take as
literal, verifiable accusations. See Bresler, 398 U.S. at 14; Austin, 418 U.S. at 284-86. Nor did the State attempt to prosecute Hendry’s reference to “terrorist
organization,” “tax leeches,” or “armed thugs” as such. The charge instead
rested on two discrete factual claims: that Linton officers “kicked in” Hendry’s
door without legal justification and that they “kidnapped” him. App. Vol. II, p.
16.
Court of Appeals of Indiana Opinion 26A-CR-33 September 15, 2026 Page 11 of 23 [24] Unlike “blackmail” or “traitor,” these were not free-floating epithets. The
statements for which Hendry was charged were particularized descriptions of a
specific encounter. The statements incorporated a specific timeframe, a specific
location, and a specific sequence of events, offered as an example in support of
Hendry’s request that the council abolish the department. State’s Ex. 2. The
more specific and verifiable a claim, the less plausible it is that a reasonable
listener would wave it off as mere exaggeration. See Milkovich, 497 U.S. at 21-22; Davidson, 716 N.E.2d at 33-34. A reasonable jury could find that the level of
particularity of Hendry’s statements signaled a factual assertion rather than
hyperbole.
[25] False statements of verifiable fact about an officer’s conduct are precisely what
the Statute is designed to address. See Ind. Code § 35-44.1-2-3(b), (d)(5) (2023).
Hendry’s false statements about kicking in the door and kidnapping were the
sort of claims capable of being tested and disproved, which is the hallmark of a
factual assertion rather than rhetorical hyperbole. See Milkovich, 497 U.S. at 21;
Brewington, 7 N.E.3d at 961.
[26] The record reinforces that conclusion in three respects. First, Hendry made
functionally the same claim about his door to Chief Clark by telephone months
before he voiced these statements at the Council meeting. He did so not as a
rhetorical flourish before a legislative body but as a private complaint and
request for payment that prompted an actual investigation. Chief Clark
reviewed body camera footage specifically to determine whether the door had
been kicked in. Hendry offers no basis for finding that a claim serious enough to
Court of Appeals of Indiana Opinion 26A-CR-33 September 15, 2026 Page 12 of 23
trigger a factual investigation when made privately transforms into mere
hyperbole when repeated publicly in a different forum.
[27] Second, although the reaction of Hendry’s audience, while relevant, is not the
touchstone of the inquiry, this evidence does not clearly favor Hendry. The
Linton Mayor testified that he was “shocked” by Hendry’s allegations and
understood them as claims of misconduct. Tr. Vol. II, p. 188. The Council
member asked Chief Clark to respond to Hendry’s statements. This is hardly
the reaction to obvious rhetorical excess that one would expect.
[28] Third, and most tellingly, Hendry himself never characterized these statements
as hyperbole in his motion to dismiss or accompanying brief or during the
subsequent hearing. Although he did briefly refer to his comments as hyperbole
at trial, Hendry consistently maintained that, at the time he made the
statements for which he was later charged, he believed his statements were true
and “absolutely genuine.” Tr. Vol. II, pp. 216-17. This stance is difficult to
reconcile with his later assertion that the same statements were understood by
everyone—including the speaker—as nothing more than “imaginative
expression.”
[29] On this record, a reasonable factfinder could conclude that Hendry’s statements
that officers “kicked in” his door and “kidnapped” him implied assertions of
fact that were “sufficiently factual to be susceptible of being proved true or
false” and, therefore, not hyperbole. Milkovich, 497 U.S. at 21. Indeed, the
evidence at trial—including officer testimony, body camera footage, and the
Court of Appeals of Indiana Opinion 26A-CR-33 September 15, 2026 Page 13 of 23
arrest and entry warrants—proved those assertions false. The First
Amendment’s protection for rhetorical hyperbole accordingly does not shield
Hendry’s conviction. The False Informing Statute was not unconstitutionally
applied to his speech.
B. Art. 1, § 9
[30] Art, 1, § 9 of the Indiana Constitution provides: “No law shall be passed,
restraining the free interchange of thought and opinion, or restricting the right
to speak, write, or print, freely, on any subject whatever: but for the abuse of
that right, every person shall be responsible.” As with the First Amendment, the
protections afforded by Art. 1, § 9 are not absolute. Hendry v. State, 272 N.E.3d
239, 254 (Ind. Ct. App. 2025).
[31] But in construing this clause, our Supreme Court has “resist[ed] the siren song
of First Amendment jurisprudence” because Art. 1, § 9 “articulates a liberty
interest, not an equality interest.” Whittington v. State, 669 N.E.2d 1363, 1368
(Ind. 1996). Unlike the First Amendment, Art. 1, § 9 protects against restriction
of expressive activity, not discrimination on the basis of content or viewpoint.
Id. Claims under Art. 1, § 9 are therefore analyzed under a framework built
from its own text and drafting history, not imported from federal doctrine. See
id. at 1367-68.
1. Standard for Analyzing Art. 1, § 9 Claims
[32] Courts analyzing Art. 1, § 9 claims employ a two-step analysis. Hendry v. State,
272 N.E.3d 239, 254 (Ind. Ct. App. 2025). “First, a reviewing court must
Court of Appeals of Indiana Opinion 26A-CR-33 September 15, 2026 Page 14 of 23
determine whether state action has restricted a claimant’s expressive activity.”
Whittington, 669 N.E.2d at 1367. “Second, if it has, the court must decide
whether the restricted activity constituted an ‘abuse’ of the right to speak.” Id.
“One way a claimant can try to meet this burden is to show that his or her
expressive activity was political.” Id. at 1369.
[33] “Expressive activity is political, for the purposes of the responsibility clause, if
its point is to comment on government action, whether applauding an old
policy or proposing a new one, or opposing a candidate for office or criticizing
the conduct of an official acting under color of law.” Id. at 1370. Once the
claimant proves the expressive activity is “political,” the burden shifts to the
State to demonstrate that its restriction did not “materially burden” the
claimant’s political expression. Id.
[34] The State may satisfy this burden by showing that the unpunished expression
would inflict “‘particularized’ harm analogous to tortious injury on readily
identifiable private interests.” Id. (citing Price v. State, 622 N.E.2d 954, 964 (Ind.
1993)). This elevated protection for political speech is a “core value” of our
state Bill of Rights. Price, 622 N.E.2d at 963.
2. Application of the Two-Step Inquiry Shows Hendry’s
Prosecution Did Not Violate Art. 1, § 9
[35] The first step of this inquiry is easily satisfied. The False Informing Statute
restricted Hendry’s expressive activity in the most direct way possible by
making his statements to the Council a crime. See Whittington, 669 N.E.2d at
Court of Appeals of Indiana Opinion 26A-CR-33 September 15, 2026 Page 15 of 23
1368 (state action restricts expressive activity when it imposes “a direct and
significant burden on a person’s opportunity to speak his or her mind, in
whatever manner the speaker deems most appropriate”).
[36] We proceed to the second step and consider whether that restriction was an
“abuse” of the right to speak. Hendry’s remarks to the Council were political in
the fullest sense Whittington contemplates: Hendry was criticizing “the conduct
of . . . official[s] acting under color of law”—that is, law enforcement officers
armed with a warrant—and asking the entity which paid the officers’ salaries—
the Council—to abolish the police department in response. Id. at 1370.
[37] Because his speech was political, the burden shifted to the State to show that
prosecuting Hendry for two of his statements did not materially burden that
political expression. Id. The State accomplished this by showing that, left
unpunished, those statements would have inflicted “particularized harm
analogous to tortious injury on readily identifiable private interests.” Id.
[38] Hendry’s statements that Linton officers “kicked in” his door without legal
justification and later returned to “kidnap[]” him were directed at identifiable
individuals—the specific officers who executed Hendry’s July 2022 arrest.
State’s Ex. 2, 0:25-0:40, 1:00-1:31. Through those statements, Hendry
knowingly and falsely accused the officers of discrete, unlawful conduct in the
performance of their duties. See Ind. Code § 35-43-2-1.5 (“A person who
knowingly or intentionally breaks and enters the dwelling of another person
commits residential entry, a Level 6 felony”); Ind. Code § 35-42-3-2(a) (“A
Court of Appeals of Indiana Opinion 26A-CR-33 September 15, 2026 Page 16 of 23
person who knowingly or intentionally removes another person, by fraud,
enticement, force, or threat of force, from one place to another commits
kidnapping,” a Level 6 felony absent special circumstances).
[39] Falsely alleging criminal activity by a person is harm “analogous to tortious
injury” and in this instance could qualify as defamation if Hendry acted with
malice. See Whittington, 669 N.E.2d at 1370; Price, 622 N.E.2d at 964; Henrichs
v. Pivarnik, 588 N.E.2d 537, 542 (Ind. Ct. App. 1992) (ruling that a statement is
defamatory per se when it imputes criminal conduct and that such a statement
may be actionable when directed to a public official if the statements were made
with knowledge that the defamatory statements were false or with reckless
disregard as to whether they were false).
[40] The State chose to prosecute Hendry only for his statements that fell into this
category of “abuse” under Art. 1, § 9. The prosecution did not reach further.
Subsection (d)(5) of the False Informing Statute requires a knowing falsehood
alleging a violation of a specific departmental rule or procedure. Ind. Code § 35-44.1-2-3(d)(5) (2023). This subsection accordingly could not have been, and was
not, used to punish Hendry’s more generalized political rhetoric—his
description of the department as “poison” and a “terrorist organization”
composed of “tax leeches” who terrorize people who are undesirable to the
officers. State’s Ex. 2, 1:00-1:31, 2:30-2:40, 3:00-3:10, 4:30-4:40. That particular
rhetoric named no specific officer and alleged no discrete, verifiable act of
misconduct; therefore, it seemingly could not inflict the type of “particularized
Court of Appeals of Indiana Opinion 26A-CR-33 September 15, 2026 Page 17 of 23
harm analogous to tortious injury on readily identifiable private interests.” See
Whittington, 669 N.E.2d at 1370.
[41] Because the State showed that Hendry’s prosecution did not materially burden
his political expression, the False Informing Statute was not unconstitutionally
applied to him under Art. 1, § 9.
IV. The False Informing Statute Is Not Unconstitutionally
Vague as Applied to Hendry
[42] “Due process principles advise that a penal statute is void for vagueness if it
does not clearly define its prohibitions.” Brown v. State, 868 N.E.2d 464, 467
(Ind. 2007). “To that end, there are two independent causes to invalidate a
statute on vagueness grounds: (1) the statute does not provide notice enabling
ordinary people to understand the conduct that it prohibits; and (2) the statute
potentially authorizes or encourages arbitrary or discriminatory enforcement.”
Tiplick v. State, 43 N.E.3d 1259, 1262 (Ind. 2015). Hendry claims that the False
Informing Statute is unconstitutionally vague for both reasons.
[43] Because the False Informing Statute touches expression, this standard is applied
with particular care, mindful of the chilling effect vague penal statutes can have
on speech. Reno v. ACLU, 521 U.S. 844, 871-72 (1997); Helton v. State, 624
N.E.2d 499, 506 (Ind. 1993) (“Statutes which threaten to inhibit the exercise of
constitutional rights or which impose criminal penalties are subjected to greater
scrutiny and less vagueness is tolerated in them than in other types of laws”).
Even so, Hendry bears a heavy burden because he must overcome the
Court of Appeals of Indiana Opinion 26A-CR-33 September 15, 2026 Page 18 of 23
presumption of constitutionality that envelops the Statute. See Gates v. State, 192
N.E.3d 222, 225 (Ind. Ct. App. 2022).
A. The False Informing Statute Provided Adequate Notice
to Hendry of the Conduct It Prohibits
[44] “A statute is not void for vagueness ‘if individuals of ordinary intelligence
would comprehend it adequately to inform them of the proscribed conduct.’”
Id. (citing State v. Lombardo, 738 N.E.2d 653, 656 (Ind. 2000)). Because a
vagueness challenge requires focus on the precise circumstances of the case
giving rise to the challenge, “the defendant does not meet his burden of
showing unconstitutional vagueness by devising hypothetical situations which
might demonstrate vagueness.” Id.
[45] Subsection (d)(5) of the False Informing Statute sets out discrete, ascertainable
elements: a person (1) makes a complaint against a law enforcement officer (2)
to the state or municipality that employs the officer, (3) alleging that the officer
engaged in misconduct while performing the officer’s duties, (4) knowing the
complaint to be false. Ind. Code § 35-44.1-2-3(d)(5) (2023). The Statute defines
“misconduct” as “a violation of a departmental rule or procedure of a law
enforcement agency.” Ind. Code § 35-44.1-2-3(b) (2023).
[46] This is not the kind of open-ended standard that leaves citizens guessing at the
line between permitted and prohibited conduct. An ordinary person can
understand that falsely and knowingly telling a city council that the city’s
officers broke down a citizen’s door without cause and forcibly seized and
Court of Appeals of Indiana Opinion 26A-CR-33 September 15, 2026 Page 19 of 23
confined the citizen without justification for over a month is a “complaint”
alleging “misconduct” within the plain meaning of those terms. See Brown, 868
N.E.2d at 467 (statutory language must “convey sufficiently definite warning as
to the proscribed conduct when measured by common understanding”).
[47] The False Informing Statute’s failure to separately enumerate every degree of
falsity or every register of political rhetoric that might approach its boundary
does not render it vague, contrary to Hendry’s claim. A statute “need only
inform the individual of the generally proscribed conduct” and need not catalog
every permutation of prohibited speech. State v. Lombardo, 738 N.E.2d 653, 656
(Ind. 2000) (quoting State v. Downey, 476 N.E.2d 121, 122 (Ind. 1985)).
[48] Hendry’s argument that the statute failed to warn him where “trivial” hyperbole
ends and prosecutable falsity begins proves less than he suggests. The line that
he suggests is lacking is supplied by the False Informing Statute’s own terms.
Statements that do not purport to describe a violation of a specific departmental
rule or procedure—his “terrorist organization” and “tax leeches” rhetoric, for
instance—fall outside the statute’s definition of misconduct altogether and were
never charged here. See Downey, 476 N.E.2d at 123 (statute must draw a line
“between trivial and substantial things”).
[49] The State’s decision not to charge every intemperate remark in Hendry’s speech
is not evidence that the statute lacks a discernible boundary. To the contrary, it
is evidence that the boundary the statute draws—between generalized criticism
Court of Appeals of Indiana Opinion 26A-CR-33 September 15, 2026 Page 20 of 23
or opinion and specific, knowingly false factual accusations of rule violations—
was correctly applied.
B. The False Informing Statute Does Not Invite Arbitrary
or Discriminatory Enforcement
[50] Hendry also argues that the False Informing Statute’s rare use, and his own
prosecution, show that the Statute hands officials a prohibited “standardless
sweep” to pursue disfavored speakers. See Kolender v. Lawson, 461 U.S. 352, 358
(1983) (quoting Smith v. Goguen, 415 U.S. 566, 575 (1974)). We disagree. The
statute confines enforcement discretion through its elements. Liability attaches
only when a complaint: (1) is made to the officer’s public employer; (2) alleges a
violation of a specific departmental rule or procedure; and (3) is knowingly
false. Ind. Code § 35-44.1-2-3(d)(5) (2023).
[51] These requirements narrow the universe of prosecutable speech considerably
and leave little room for an officer or prosecutor to arrest or prosecute a
defendant’s generalized criticism, opinion, or hyperbole based on personal
animus toward the defendant. That the statute has rarely, if ever, been the basis
for a published appellate decision is at least as consistent with prosecutorial
restraint in situations requiring careful, case-specific constitutional analysis as it
is with arbitrary or selective enforcement.
[52] This result is not changed by Chief Clark’s probable cause affidavit noting that
law enforcement officers were especially attentive to Hendry because of his
history of confrontations as a “[F]irst [A]mendment auditor.” App. Vol. II, p.
Court of Appeals of Indiana Opinion 26A-CR-33 September 15, 2026 Page 21 of 23
18. Such evidence does not establish that the statute itself is the vehicle for
viewpoint-based harassment. The vagueness inquiry considers whether the
statute supplies “minimal guidelines to govern law enforcement,” Kolender, 461
U.S. at 358, not on whether officers were subjectively more attuned to a
particular defendant’s public conduct.
[53] For these reasons, the False Informing Statute’s elements meaningfully
constrain the discretion of those who enforce it. Hendry’s own prosecution
followed directly from conduct falling squarely within the statutory elements of
false informing: two specific, knowingly false accusations that the officers who
arrested him violated departmental rules. Accordingly, the Statute is not void
for vagueness as applied to him.
Conclusion
[54] Hendry’s statements that Linton police officers “kicked in” his door and
“kidnapped” him were not rhetorical hyperbole beyond the reach of the False
Informing Statute. The record supports a reasonable factfinder’s conclusion that
these were specific, verifiable factual assertions that Hendry knowingly asserted
as true and that the State proved false. The False Informing Statute is also not
unconstitutionally vague as applied to Hendry: its elements gave him fair notice
that knowingly false, specific accusations of rule violations made to the agency
that paid the officers’ salaries were prohibited. In addition, those same elements
sufficiently constrain enforcement discretion to guard against arbitrary or
discriminatory application of the Statute. The trial court did not abuse its
Court of Appeals of Indiana Opinion 26A-CR-33 September 15, 2026 Page 22 of 23 discretion in denying Hendry’s motion to dismiss. As Hendry raises no other
issues on appeal that were not waived, we affirm the trial court’s judgment.
Bailey, J., and Brown, J., concur.
ATTORNEY FOR APPELLANT
Alexander W. Robbins
Ahler & Robbins LLP
Lafayette, Indiana
ATTORNEY FOR AMICUS CURIAE
ACLU OF INDIANA
Joshua T. Bleisch
Indianapolis, Indiana
ATTORNEYS FOR APPELLEE
Theodore E. Rokita
Attorney General of Indiana
Jodi Kathryn Stein
Deputy Attorney General
Indianapolis, Indiana
Court of Appeals of Indiana Opinion 26A-CR-33 September 15, 2026 Page 23 of 23