In a recent Massachusetts Lawyers Weekly article, Andy Gambaccini was interviewed in connection with a federal summary judgment decision in which the Court determined that the City of Cambridge did not violate a police officer’s free speech rights when the City suspended the officer following a Facebook post by the officer that dealt with police reform legislation that was named for George Floyd.
While the full story is below, the portion featuring Gambaccini is excerpted here:
Worcester attorney Andrew J. Gambaccini said there seemed to be little in the summary judgment record that spoke to any impact on municipal operations caused by Hussey’s speech.
“The concern, of course, for public employees will be that if the judicial gloss begins to require lower demonstrated proof of impact on governmental operations, speech potentially could be limited by public employers more often and with lesser showings of need,” Gambaccini said.
Officer disciplined over George Floyd post can’t bring free speech claim
Department said private social media comment could undermine public trust
By: Eric T. Berkman March 20, 2024
A Cambridge police officer could not bring a §1983 suit asserting that the city violated his free speech rights by disciplining him over a Facebook post that disparaged police brutality victim George Floyd, a U.S. District Court judge has determined.
Plaintiff Brian Hussey posted a news article on his personal Facebook page in February 2021 concerning plans to reintroduce a congressional police reform bill named in honor of Floyd, a Black man who was murdered the previous May when Minneapolis police Officer Derek Chauvin kneeled on his neck for more than nine minutes.
Hussey’s post included the comment: “This is what its [sic] come to ‘honoring’ a career criminal, a thief and druggie … the future of this country is bleak at best.”
Though Hussey’s post was only visible to “friends” and was only up for two hours before he took it down, someone shared a screenshot with an officer of the Cambridge chapter of the National Association for the Advancement of Colored People.
When Hussey’s superiors learned about the post, he was placed on administrative leave and later received an unpaid four-day suspension.
In his lawsuit, Hussey claimed the discipline violated his right to free speech under the First Amendment.
Judge Angel Kelley denied the city’s motion to dismiss in October 2022, finding the factual record regarding the city’s justifications for discipline insufficient to make a finding at that time.
However, this month, following discovery, Kelley granted the city’s summary judgment motion.
Applying the balancing test from the U.S. Supreme Court’s 1968 Pickering v. Board of Education decision, the judge found that the city’s interest in maintaining the public trust necessary for the police department to carry out its operations efficiently and effectively outweighed Hussey’s interest in speaking as a citizen on a matter of public concern.
“Ensuring the free participation of the people in discussions of public affairs is of paramount importance — including for individuals who are employed by the public,” Kelley wrote. “The Court recognizes a limited exception to that principle here because the Defendants’ disciplinary actions were reasonably calculated to prevent disruption to the Cambridge Police Department, via a further breakdown of trust from community members, that Plaintiff’s comments could have caused.”
The 33-page decision is Hussey v. City of Cambridge, et al., Lawyers Weekly No. 02-129-24.
Promoting community trust
In a prepared statement, Assistant City Solicitor Kate M. Kleimola, who represented the defendants, said her clients were happy the court recognized the city and Police Department’s interest in a bias-free department and the need to promote community trust.
Plaintiff’s counsel Harold Lichten of Boston, on the other hand, said the decision was “completely wrong” and criticized the judge for inserting her own political thoughts into the decision, including a narrative of Floyd’s life, which Lichten said had nothing to do with the matter in front of her.
“The question under the First Amendment is whether [Hussey’s comments] caused disruption in the department or the community,” he said. “And it didn’t. They didn’t even know about it for a couple of weeks because he posted it on his private Facebook page and took it down after a couple hours. No officer complained, no community member other than someone with the NAACP complained, and there was no disruption of any type.”
Waltham attorney Joseph L. Sulman, who represents public employees, said the ruling was disappointing though unsurprising.
“First Amendment jurisprudence for public employees has become so subjective based on the balancing test that they essentially have no First Amendment rights,” he said. “The standard is so wildly subjective, as seen in this case, and I don’t fault the judge for this; it’s just the standard. Anything the government agency puts forward can be seen as possibly negatively affecting efficient operations of a governmental agency. That’s why I rarely take these cases anymore. They’re almost unwinnable.”
But Boston attorney Leonard H. Kesten said he did not think the case carried such broad implications.
“We’ve been dealing with this issue forever with public employees, particularly police,” he said, adding that the cases are very fact-specific and that context matters.
Douglas I. Louison of Boston, who represents public employers and employees, said Hussey was yet another example of how far courts are willing to let supervisors reach into officers’ private lives. But he agreed with Kesten that it was a context-driven decision.
“If this was a DPW worker talking about some political issue, I don’t think the court could support its finding,” he said. “But it was a police officer speaking about the primary law enforcement issue roiling the country at that time, and I think he crossed into dangerous territory in saying anything contrary to certain accepted language.”
Worcester attorney Andrew J. Gambaccini said there seemed to be little in the summary judgment record that spoke to any impact on municipal operations caused by Hussey’s speech.
“The concern, of course, for public employees will be that if the judicial gloss begins to require lower demonstrated proof of impact on governmental operations, speech potentially could be limited by public employers more often and with lesser showings of need,” Gambaccini said.
Inflammatory post
Hussey, a veteran Cambridge police officer, maintained a Facebook page that did not identify him as such.
On Feb. 25, 2021, Hussey, who was off duty at the time, shared on his Facebook page a news article entitled “House Democrats Reintroduce Police Reform Bill Named in Honor of George Floyd.” A comment he posted with the article talked about “‘honoring’ a career criminal, a thief and druggie … the future of this country is bleak at best.”
He took the post down approximately two hours later.
Hussey v. City of Cambridge, et al.
THE ISSUE: Could a Cambridge police officer bring a §1983 suit asserting that the city violated his free speech rights by disciplining him over a Facebook post that disparaged police brutality victim George Floyd?
DECISION: No (U.S. District Court)
LAWYERS: Harold Lichten and Benjamin Weber, of Lichten & Liss-Riordan, Boston (plaintiff)
Kate M. Kleimola of the City of Cambridge Law Department (defense)
In March 2021, Commissioner Branville Bard informed Hussey that he was being placed on administrative leave because of the Facebook post.
During the department’s ensuing investigation, Hussey stated that he was “100% in favor of police reform” and that Chauvin was a “disgrace to the badge.” But he also stated that while Floyd did not deserve what happened to him, he was still a violent criminal, and attaching his name to a reform bill aimed at the betterment of policing was a “disservice to the spirit of the bill.”
The plaintiff was put on administrative leave for two months before receiving a four-day suspension.
In November 2021, the plaintiff filed his §1983 action against the city and Bard, who was ultimately found to be entitled to qualified immunity.
Kelley denied the city’s initial motion to dismiss. Following discovery, the city moved for summary judgment.
Balancing act
In granting the motion, Kelley rejected Hussey’s argument that his post could not have had a disruptive impact since it was only up for a couple of hours on his private Facebook profile.
“The post was screenshotted, its content was shared beyond Hussey’s network, and it had begun to attract attention,” Kelley pointed out. “Hussey also shared his post with all his Facebook friends, who number in the hundreds, and most of whom were aware he was employed as an Officer in the Cambridge Police Department.”
Additionally, in balancing Hussey’s interest in speaking as a private citizen on a public matter against the city’s interest in maintaining public trust, the judge said the value of Hussey’s speech was lessened by the “inflammatory and insulting manner in which his post was written.”
Meanwhile, even if viewed in the light most favorable to Hussey, his interest was outweighed by his department’s strong interest in restricting his speech, Kelley said.
“The timing here is a crucial factor — Hussey’s statements came mere months after Floyd’s killing galvanized public criticism of policing and racial disparities, including in the City of Cambridge and the greater Boston area,” Kelley wrote.
While most protests were peaceful, the judge continued, some turned violent and were often accompanied by calls to reform, defund and even abolish police departments.
“It is thus understandable that in the months that followed, the Cambridge Police Department’s sensitivity to public perception was heightened,” the judge said. “The case law does not identify any magic marker or bright line wherein the level of community feedback is sufficient to justify a speech restriction [but] Bard’s actions appear reasonable given the importance to the Department of maintaining the trust of its community members and the concern, especially given the ‘context of the national climate,’ that the Facebook post could have detrimentally impacted that trust.”
