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`Civil Action No. 21-CV-11868-AK
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`UNITED STATES DISTRICT COURT
`DISTRICT OF MASSACHUSETTS
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`BRIAN HUSSEY,
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`Plaintiff,
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`v.
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`CITY OF CAMBRIDGE and
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`BRANVILLE BARD, individually and
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`in his capacity as Commissioner of the
`Cambridge Police Department,
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`Defendants.
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`MEMORANDUM AND ORDER
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`A. KELLEY, D.J.
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`Brian Hussey (“Hussey”), a police officer for the City of Cambridge Police Department
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`(“CPD”), brings this action, pursuant to 42 U.S.C. § 1983, against the City of Cambridge (the
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`“City”) and Branville Bard (“Bard”), the previous Commissioner of the CPD, in his individual
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`and official capacities, alleging that the defendants violated his First Amendment right to
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`freedom of speech. The defendants filed a motion to dismiss [Dkt. 9], which Hussey opposes.
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`For the reasons that follow, the defendants’ motion to dismiss [Dkt. 9] is GRANTED IN PART
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`and DENIED IN PART.
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`I.
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`Factual and Procedural Background
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`Unless otherwise noted, the facts are recited as alleged in Hussey’s complaint. [See Dkt.
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`1 (“Complaint”)]. Hussey has worked as a police officer for the CPD for twenty-four years. [Id.
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`at ¶ 1]. Hussey maintains a private Facebook page, which does not identify him as a police
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`officer, where he occasionally posts personal and political comments or articles. [Id. at ¶ 9]. On
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`1
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`or about February 25, 2021, while off duty, Hussey posted an article titled “House Democrats
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`Reintroduce Police Reform Bill Named in Honor of George Floyd,” along with the comment,
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`“This is what its [sic] come to ‘honoring’ a career criminal, a thief and druggie . . . the future of
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`this country is bleak at best.” [Id. at ¶¶ 10-11]. Hussey states that the motivation behind this
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`post was his “concern[] as a private citizen that an important act of Congress would be named ‘in
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`honor’ of someone who was reported to have a criminal record.” [Id.]. Hussey took the post
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`down approximately two hours after posting. [Id. at ¶ 12]. In March 2021, Bard informed
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`Hussey that he was being placed on administrative leave because of the Facebook post. [Id. at
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`¶ 13]. Hussey was on administrative leave for two months before receiving a four-day
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`suspension. [Id.]. Hussey claims that this punishment violated his First Amendment right to the
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`freedom of speech and seeks monetary damages in addition to declaratory and injunctive relief.
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`[Id. at ¶¶ 14-16].
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`The defendants moved to dismiss Hussey’s complaint pursuant to Federal Rule of Civil
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`Procedure 12(b)(6). [Dkt. 9]. Hussey opposed that motion. [Dkt. 13]. The Court held a motion
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`hearing on September 26, 2022.1
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`II.
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`Legal Standard
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`To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a
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`complaint must allege sufficient facts to state a claim for relief that is “plausible on its face” and
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`actionable as a matter of law. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
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`1 Shortly after filing his opposition, Hussey moved to supplement and amend his complaint. [Dkt. 14]. In
`his proposed amended complaint, Hussey does not allege any new underlying facts related to the
`Facebook post or suspension. Instead, he adds claims that he was denied a promotion to sergeant in April
`2022, after filing this suit, because of the discipline he received in response to the Facebook post. [Dkt.
`14-1 at ¶ 18]. At the motion hearing on September 26, 2022, counsel informed the Court that Hussey had
`since been promoted to sergeant and Hussey’s counsel therefore intended to withdraw the motion to
`amend the complaint. As such, the Court denied as moot Hussey’s motion to amend. [See Dkt. 24].
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`2
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`Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Reading the complaint “as a whole,” the Court
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`must conduct a two-step, context-specific inquiry. García-Catalán v. United States, 734 F.3d
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`100, 103 (1st Cir. 2013). First, the Court must perform a close reading of the complaint to
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`distinguish factual allegations from conclusory legal statements. Id. Factual allegations must be
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`accepted as true, while legal conclusions are not entitled to credit. Id. A court may not disregard
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`properly pleaded factual allegations even if actual proof of those facts is improbable. Ocasio-
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`Hernández v. Fortuño-Burset, 640 F.3d 1, 12 (1st Cir. 2011). Second, the Court must determine
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`whether the factual allegations present a “reasonable inference that the defendant is liable for the
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`misconduct alleged.” Haley v. City of Bos., 657 F.3d 39, 46 (1st Cir. 2011) (citation omitted).
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`Dismissal is appropriate when the complaint fails to allege a “plausible entitlement to relief.”
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`Rodriguez-Ortiz v. Margo Caribe, Inc., 490 F.3d 92, 95 (1st Cir. 2007) (quoting Bell Atl. Corp.
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`v. Twombly, 550 U.S. 544, 559 (2007)). When resolving a motion to dismiss under Federal Rule
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`of Civil Procedure 12(b)(6), the Court is generally limited to “the complaint, documents attached
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`to it, and documents expressly incorporated into it,” Foley v. Wells Fargo Bank, N.A., 772 F.3d
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`63, 71-72 (1st Cir. 2014), though the Court may also consider “matters of public record[] and
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`other matters susceptible to judicial notice,” Newton Covenant Church v. Great Am. Ins. Co.,
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`956 F.3d 32, 35 (1st Cir. 2020).
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`III. Discussion
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`Hussey brings this action pursuant to 42 U.S.C. § 1983. Section 1983 provides that
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`“[e]very person” acting “under color of any statute, ordinance, regulation, custom, or usage of
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`any State or Territory or the District of Columbia” who subjects or causes to subject someone “to
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`the deprivation of any rights, privileges, or immunities secured by the Constitution and laws” of
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`the United States shall be liable to the injured party. 42 U.S.C. § 1983. An individual asserting a
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`3
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`Section 1983 claim must show that the challenged conduct is “attributable to a person acting
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`under color of state law” and that the conduct was a “denial of rights secured by the Constitution
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`or by federal law.” Soto v. Flores, 103 F.3d 1056, 1061 (1st Cir. 1997); see Graham v. Connor,
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`490 U.S. 386, 393-94 (1989) (explaining that Section 1983 is “not itself a source of substantive
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`rights, but merely provides a method for vindicating federal rights elsewhere conferred” (citation
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`omitted)). In this case, the defendants do not dispute that they were acting “under color of state
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`law.” Rather, they contend that the injuries alleged do not amount to a violation of Hussey’s
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`First Amendment rights because he was not engaged in protected speech.2 In the alternative,
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`they argue that Bard did not have final policymaking authority over the disciplinary action taken,
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`and the City therefore cannot be held liable pursuant to Section 1983, and that Bard is entitled to
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`qualified immunity, which “protects government officials . . . from suit and liability for monetary
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`damages under [Section] 1983,” as to the individual capacity claim against him. Acevedo-Garcia
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`v. Vera-Monroig, 204 F.3d 1, 10 (1st Cir. 2000)). Hussey counters that he was engaged in
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`protected speech and that Bard was the final policymaking authority as to officer discipline and
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`is not entitled to qualified immunity. [Dkt. 13 at 1-4].
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`A. Protected Speech
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`The threshold question is whether Hussey has alleged facts sufficient to plead a First
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`Amendment violation, which requires the speech at issue to be protected. Although public
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`employees like Hussey “do not forfeit all of their First Amendment rights by undertaking public
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`employment,” the protection public employees enjoy “against speech-based reprisals is
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`qualified.” Decotiis v. Whittemore, 635 F.3d 22, 29 (1st Cir. 2011) (citing Mercado-Berrios v.
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`Cancel-Alegria, 611 F.3d 18, 25-26 (1st Cir. 2010)). Government employees “often occupy
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`2 The First Amendment was incorporated against the states by the Due Process Clause of the Fourteenth
`Amendment. See Grosjean v. Am. Press Co., 297 U.S. 233, 243 (1936).
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`4
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`trusted positions in society” and when they speak out “they can express views that contravene
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`governmental policies or impair the proper performance of governmental functions.” Garcetti v.
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`Ceballos, 547 U.S. 410, 419 (2006); see Curran v. Cousins, 509 F.3d 36, 47 (1st Cir. 2007).
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`Consequently, when a citizen “enters government service, the citizen by necessity must accept
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`certain limitations on his or her freedom.” Garcetti, 547 U.S at 418. The Court must apply a
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`three-part test to determine whether a government employer has violated an employee’s right to
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`free speech by taking an adverse action against him, considering whether (1) the employee spoke
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`as a citizen on “a matter of public concern”; (2) the government employer had an “adequate
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`justification for treating the employee differently from any other member of the general public,”
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`that is, whether the interests of the employee and public “outweigh the government’s interest in
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`functioning efficiently”; and (3) whether the protected speech “was a substantial motivating
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`factor in the adverse action” against the employee. Bruce v. Worcester Reg’l Transit Auth., 34
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`F.4th 129, 135, 138 (1st Cir. 2022); see also Borrás-Borrero v. Corporación del Fondo del
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`Seguro del Estado, 958 F.3d 26, 34 (1st Cir. 2020) (citing Rosado-Quiñones v. Toledo, 528 F.3d
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`1, 15 (1st Cir. 2008)); Decotiis, 635 F.3d at 29.
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`The parties here do not dispute the first and third elements. Therefore, the Court’s
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`analysis will focus on the second element, often referred to as the “Pickering test”: balancing the
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`employee and the public’s interests in the employee’s speech against the “interest of the
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`[government], as an employer, in promoting the efficiency of the public services it performs
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`through its employees.” Jordan v. Carter, 428 F.3d 67, 73 (1st Cir. 2005) (citing Pickering v. Bd.
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`of Educ., 391 U.S. 563, 568 (1968)). The resolution of this inquiry is a matter of law for the
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`Court to decide, id., though it does require a “look at the facts of the case, including the nature of
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`the employment and the context in which the employee spoke,” Hayes v. Mass. Bay Transp.
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`Auth., 498 F. Supp. 3d 224, 232 (D. Mass. 2020). As part of this inquiry, the Court considers the
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`“time, place, and manner of the employee’s speech” and the interests of the government,
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`including its motivation, when making the adverse employment decision. Bruce, 34 F.4th at 138
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`(citing Decotiis, 635 F.3d at 35). This balancing test reflects the fact that government employers
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`“like private employers, need a significant degree of control over their employees’ words and
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`actions,” because “without it, there would be little chance for the efficient provision of public
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`services.” Garcetti, 547 U.S. at 418.
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`The defendants argue that Hussey’s Facebook post does not constitute protected speech
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`because the interests of the City in “maintaining a police department free of bias and in
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`maintaining public trust far outweigh” Hussey’s interests. [Dkt. 10 at 5-10]. Hussey counters
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`that he has alleged facts sufficient to survive dismissal, namely, that his Facebook post is
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`protected speech, and the defendants have not shown that his speech caused or risked causing
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`any disruption to their government interest. [Dkt. 13 at 6, 12-13].
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`1. Hussey’s Interest
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`At the heart of Hussey’s speech is the murder of George Floyd, an African-American
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`man, who was killed by then-Officer Derek Chauvin (“Chauvin”) on May 25, 2020, while in the
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`custody of the Minneapolis Police Department.3 See Armstrong v. City of Minneapolis, 525 F.
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`Supp. 3d 954, 957 (D. Minn. 2021); see also How George Floyd Died, and What Happened
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`Next, N.Y. Times, https://www.nytimes.com/article/george-floyd.html [hereinafter “N.Y. Times
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`Article”]; House Democrats Reintroduce Police Reform Bill Named in Honor of George Floyd,
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`3 Officer Chauvin was found guilty of second-degree murder, third-degree murder, and second-degree
`manslaughter for the death of George Floyd on April 20, 2021. See State v. Chauvin, No. 27-cr-20-12646
`(Minn. Apr. 20, 2021); see also N.Y. Times Article (noting that Chauvin was found guilty of second-
`degree murder, third-degree murder, and second-degree manslaughter after “a weekslong trial” and
`sentenced to 22.5 years in prison).
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`CNN (February 25, 2021), https://whdh.com/news/politics/house-democrats-reintroduce-police-
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`reform-bill-named-in-honor-of-george-floyd/ [hereinafter “CNN WHDH Article”].4 The cell
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`phone video of Chauvin, a white police officer, “kneeling on George Floyd’s neck for several
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`minutes” while George Floyd was handcuffed, pinned to the ground, and “begged for his life” as
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`other officers stood by and watched was “circulated nationwide and ignited protests across the
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`country” and internationally. Black Lives Matter L.A. v. City of L.A., No. 20-cv-05027, 2021
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`WL 3163309, at *1 (C.D. Cal. May 10, 2021); see also N.Y. Times Article; CNN WHDH
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`Article. Although Chauvin and the other officers involved were eventually arrested and charged
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`with George Floyd’s murder, protests peaceful and violent continued throughout the country and
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`abroad in the following months. See N.Y. Times Article; CNN WHDH Article. While the
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`majority of the protests were peaceful, some turned violent. Law enforcement was criticized by
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`some for responding to the majority peaceful protests with force, including the use of tear gas
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`and shooting of rubber bullets, and with mass arrests. N.Y. Times Article. The National Guard
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`was activated in at least twenty-one states, and cities enacted curfews as protestors and law
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`enforcement clashed. See id. Businesses were set on fire and vandalized, and a Minneapolis
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`police station was burned down. Id.
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`These “large protests against police brutality and systematic racism” led “to a racial
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`justice movement not seen since the civil rights protests of the 1960s.” N.Y. Times Article; see
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`CNN WHDH Article; see also Huffman v. City of Boston, No. 21-cv-10986-ADB, 2022 WL
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`4 The parties did not object when the Court informed them at the motion hearing that it intended to take
`judicial notice of these two articles, the first of which is referenced in the defendants’ papers, and the
`second of which is referenced in the plaintiff’s complaint. See Watterson v. Page, 987 F.2d 1, 3 (1st Cir.
`1993) (noting that courts may consider “documents the authenticity of which are not disputed by the
`parties,” “official public records,” “documents central to [the plaintiff’s] claims,” and “documents
`sufficiently referred to in the complaint” when evaluating a motion to dismiss); see also Madison v. Cruz,
`393 F. Supp. 3d 135, 137 n.2 (D. Mass. 2019) (noting that “[o]ther courts have also taken judicial notice
`of newspaper articles and press releases . . . when their conten[t]s cannot be reasonably questioned”).
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`2308937, at *1 (D. Mass. June 27, 2022) (“[George Floyd’s] unjust death at the hands of police
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`sparked protests around the country that called attention to the disparate treatment of people of
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`color by law enforcement and demanded justice and police reform.”). The bill introduced by
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`Congress—the subject of the article posted by Hussey—included provisions to overhaul the
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`qualified immunity defense for law enforcement and establish a national registry of police
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`misconduct; prohibitions on racial profiling and no-knock warrants in federal drug cases; and a
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`ban on chokeholds at the federal level, classifying them as a civil rights violation. CNN WHDH
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`Article.
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`Considering the impact of George Floyd’s murder on American society, Hussey’s
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`Facebook post spoke broadly to several topics—use of force by law enforcement, police reform,
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`and racial justice—on which “free and open debate is vital to informed decision-making.”
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`Pickering, 391 U.S. at 571. Viewed in that light, the value of the speech is high, as the public
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`“also had a non-trivial interest in the information” conveyed. Decotiis, 635 F.3d at 36.
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`However, the Court must also “factor in particulars such as the nature of the comments and the
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`motivation behind the speech.” Jordan, 428 F.3d at 74. Here, Hussey “put [the] pejorative
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`labels” of “career criminal,” “thief,” and “druggie” on George Floyd, a victim of murder at the
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`hands of those obliged to protect and serve the public, and whose unjust death sparked a global
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`movement calling for police reform and racial justice. Curran, 509 F.3d at 45 (citing Jordan, 428
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`F.3d at 74). Employee speech that is done in a “vulgar, insulting, and defiant” manner is
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`generally “entitled to less weight in the Pickering balance.” Jordan, 428 F.3d at 74 (citing
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`Stanley v. City of Dalton, 219 F.3d 1280, 1290 (11th Cir. 2000)); see Snipes v. Volusia County,
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`704 Fed. Appx. 848, 854 (11th Cir. 2017) (noting that there “are many ways to communicate
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`ones’ thoughts, and the vulgar, derogatory phrases used by [the employee] weigh against him”).
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`Still, the Court acknowledges that George Floyd’s past, who is at the center of Hussey’s speech,
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`is “potentially of public concern” as it relates to any perceived message sent by the federal
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`legislature. Jordan, 428 F.3d at 74.
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`Hussey’s motive for speaking must also be considered. Id. Hussey claims that his
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`Facebook post was intended to express his concern “that an important act of Congress would be
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`named ‘in honor’ of someone who was reported to have a criminal record.” [Complaint at ¶ 11].
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`At this stage, the Court must accept Hussey’s statement as true without evaluating his credibility.
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`See García-Catalán, 734 F.3d at 103. Hussey’s speech, then, intended to express disapproval of
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`Washington politics, including legislative naming conventions, a “topic[] of value in the civil
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`discourse,” and “provid[ed] information in which there was a legitimate public interest.” Curren,
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`509 F.3d at 48. Still, on its face, Hussey’s post was “open to [] many controversial
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`interpretations” and “was likely offensive to some members of the public” and fellow officers in
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`the CPD. Duke v. Hamil, 997 F. Supp. 2d 1291, 1302 (N.D. Ga. 2014) (dismissing a veteran
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`police officer’s First Amendment claim where the officer posted an image of the Confederate
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`flag accompanied by the phrase, “It’s time for the second revolution,” on his private Facebook
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`page). The very fact that his message could be misinterpreted by the public and police staff
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`speaks to the defendants’ interests in regulating such speech. See id.
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`As to the time and place of Hussey’s Facebook post, Hussey uploaded the article and his
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`comment to his private Facebook page, which he states does not identify him as a police officer,
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`while off duty, and he removed the post a few hours later. [Complaint at ¶¶ 9-12]. This
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`generally weighs in Hussey’s favor. Yet the post clearly came to Bard’s attention despite
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`Hussey’s efforts to delete the post, which “illustrates the very gamble individuals take in posting
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`content on the Internet and the frequent lack of control one has over its further dissemination.”
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`Duke, 997 F. Supp. 2d at 1302. Hussey could not prevent anyone from sharing, copying, or
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`forwarding his message to others, even if he set his Facebook page at the strictest privacy
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`settings. Moreover, Hussey’s post came less than a year after George Floyd’s murder and the
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`summer of unprecedented worldwide protests and barely a week before Chauvin’s Minnesota
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`trial for George Floyd’s murder began. See State v. Chauvin, No. 27-cr-20-12646 (Minn.) (trial
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`beginning on March 8, 2021).
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`As a whole, the value of Hussey’s speech, including his use of derogatory, pejorative
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`labels, was not particularly high, though it was also not without any value. See McGunigle v.
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`City of Quincy, 132 F. Supp. 3d 155, 172 (D. Mass. 2015) (noting that the “greater the value of
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`the subject of the speech to the public, the more the balance tilts” in the employee’s favor (citing
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`Guilloty Perez v. Pierluisi, 339 F.3d 43, 53 (1st Cir. 2003))). The question is whether the
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`government’s interest outweighs Hussey’s.
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`2. The Government’s Interest
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`When evaluating the government’s interest in regulating employee speech, the Court
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`must consider “the government’s interest in the effective and efficient fulfillment of its
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`responsibilities to the public” and its “legitimate purpose” in promoting “efficiency and integrity
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`in the discharge of official duties” and “proper discipline in the public service.” Connick, 461
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`U.S. 138, 150-51 (1983) (citing Ex parte Curtis, 106 U.S. 371, 373 (1882)). The First Circuit
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`and other courts have recognized that the government’s interest is “particularly acute in the
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`context of law enforcement,” where there is a “heightened interest” in “maintaining discipline
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`and harmony among employees.” Jordan, 428 F.3d at 74 (citing Moore v. Wynnewood, 57 F.3d
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`924, 934 (10th Cir. 1995)); see, e.g., O’Donnell v. Barry, 148 F.3d 1126, 1135 (D.C. Cir. 1998)
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`(“[B]ecause of the special degree of trust and discipline required in a police force there may be a
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`stronger governmental interest in regulating the speech of police officers than in regulating the
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`speech of other governmental employees.”). The defendants contend that they have “a strong
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`interest in maintaining a police department free of bias and maintaining public trust” and that the
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`defendants can “effectively provide the critical public safety services of its police department”
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`only if “its officers are unbiased and the public has trust in the officers.” [Dkt. 10 at 8-9].
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`Hussey counters that the defendants’ “speculation about workplace disruption is not sufficient”
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`and “language that is considered to be inflammatory is simply not enough to establish that the
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`speech will sufficiently impact the operations of a public employer.” [Dkt. 13 at 13-14].
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`Hussey’s Facebook post “on its face . . . could convey a drastically different message
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`with different implications” than his intended disapproval of Washington politics and legislative
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`naming conventions. Duke, 997 F. Supp. 2d at 1301. George Floyd’s murder is inextricably tied
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`to discussions about police brutality and racial justice, and it is a topic that may be deemed
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`“controversial, divisive, and prejudicial.” Id. It is not unreasonable to conclude that Hussey’s
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`comments could sow discord among his fellow officers, and his senior status on the force could
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`only heighten this friction. See id. at 1303. Indeed, Hussey’s Facebook post came to Bard’s
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`attention, which suggests that at least one person was concerned about its effect on the CPD.
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`When trust among officers can literally save—or ruin—lives, law enforcement understandably
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`must be careful to monitor charged statements that risk dividing the force’s ranks.
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`Also of tantamount importance to any police department is ensuring that the public
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`perceives its officers and their enforcement of the law to “be even-handed and fair,” McGunigle,
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`132 F. Supp. 3d at 173, as the “promotion of safety of persons and property is unquestionably at
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`the core of the State’s police power,” Kelley v. Johnson, 425 U.S. 238, 247 (1976). Police
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`officers “are quintessentially public servants” and “part of their job is to safeguard the public’s
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`opinion of them, particularly with regard to a community’s view of the respect that police
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`officers . . . accord the members of that community.” Locurto v. Giuliani, 447 F.3d 159, 178-79
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`(2d Cir. 2006); see Duke, 997 F. Supp. 2d at 1301. Hussey’s Facebook post had the potential to
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`damage CPD’s reputation and to undermine the community’s confidence in CPD’s willingness to
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`fulfill its duty to protect all members of the community and respect the constitutional rights of
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`those in its custody. See Snipes, 704 Fed. Appx. at 853. People in the community could take
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`offense to Hussey’s speech “not just because they disapprove of it, but because it raises concerns
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`of [Hussey’s] prejudice—and the [police] [d]epartment’s.” Duke, 997 F. Supp. 2d at 1302. A
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`police department and the public must be able to trust that officers will not justify the use of
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`unlawful force or other illicit disparate treatment or targeting of individuals because of their race
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`and backgrounds.
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`Still, the Court must consider whether the defendants’ predictions about the disruption
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`Hussey’s speech would have on their interests were reasonable. See Curran, 509 F.3d at 49
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`(noting that a government employer “need not show an actual adverse effect” on the public
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`employer’s operations to terminate an employee for something that employee said); see also
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`Sabatini v. Las Vegas Metro. Police Dept., 369 F. Supp. 3d 1066, 1077, 1091 (D. Nev. 2019);
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`Venable v. Metro. Gov’t of Nashville, 430 F. Supp. 3d 350, 360 (M.D. Tenn. 2019); Buker v.
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`Howard Cty., No. MJG-12-cv-03046, MJG-13-cv-03747, 2015 WL 3456750, at *12-13 (D. Md.
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`May 27, 2015). Hussey’s complaint does not allege that any actual disruption or harm resulted
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`from Hussey’s Facebook post, nor do the defendants describe any such consequences. There is
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`nothing to indicate that Hussey’s Facebook post was reported by local media, see Locurto, 447
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`F.3d at 165, undermined CPD outreach to the community, see Venable, 430 F. Supp. 3d at 360,
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`violated any CPD policies or diversity initiatives, see Hernandez v. City of Phx., 432 F. Supp. 3d
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`12
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`Case 1:21-cv-11868-AK Document 25 Filed 10/11/22 Page 13 of 16
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`1049, 1067-68 (D. Ariz. 2020), or was talked about by his fellow officers, see Buker, 2015 WL
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`3456750, at *12, all of which could support the government’s prediction that Hussey’s speech
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`would harm its strong interest in maintaining the public trust and a bias-free police department.
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`While Hussey’s post could undermine the community’s trust in the CPD and relationships
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`between officers, resulting in “significant disruption and inefficiency,” the Court cannot, based
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`on the facts in the complaint before it, definitively resolve the close constitutional question of
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`whether “such a risk” outweighs the interests served by Hussey’s speech. Decotiis, 635 F.3d at
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`36; Jordan, 428 F.3d at 74; see Gargano v. Liberty Int’l Underwriters, Inc., 572 F.3d 45, 48 (1st
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`Cir. 2009) (noting that the court must “accept as true all well-pleaded facts in the complaint and
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`draw all reasonable inferences in favor of the plaintiffs” at the motion to dismiss stage). Given
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`that the Court must “indulge all inferences in favor of” Hussey at this stage, the complaint
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`sufficiently states a plausible claim to relief. Id. The Court cannot grant the defendants’ motion
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`to dismiss in its entirety.
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`B. Bard’s Final Policymaking Authority
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`The defendants alternatively argue that Bard did not have final policymaking authority
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`over the discipline of officers, and the City therefore cannot be held liable pursuant to Section
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`1983. [Dkt. 10 at 11-13]. A municipality can be liable for a constitutional violation “only if the
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`violation occurs pursuant to an official policy or custom,” where the existence of an official
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`policy can be established by “showing that the alleged constitutional injury was caused by . . . a
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`person with final policymaking authority.” Welch v. Ciampa, 542 F.3d 927, 941 (1st Cir. 2008)
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`(citations omitted). A “single decision by municipal policymakers” can lead to municipal
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`liability when “the decisionmaker possesses final authority to establish municipal policy with
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`respect to the action ordered.” Pembaur v. City of Cincinnati, 475 U.S. 469, 480-81 (1986).
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`13
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`Case 1:21-cv-11868-AK Document 25 Filed 10/11/22 Page 14 of 16
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`Although the defendants claim that, as a matter of law, the City Manager, not Bard, had final
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`policymaking authority over Hussey’s discipline, the municipal charter provisions they cite in
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`support of that argument reference only appointments and removals. [See Dkt. 10 at 11-12].
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`They say nothing of disciplinary decisions—and Hussey’s complaint challenges a suspension,
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`not a termination—and the defendants do not point to any other City official who does have the
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`final say in police officer discipline. See Welch, 542 F.3d at 942 (“We are bound by Pembaur
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`and conclude that a single decision by a final policymaker can result in municipal liability.”).
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`The defendants’ arguments regarding final policymaking authority fall short, and the Court
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`denies the defendants’ motion to dismiss the claim against the City.5
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`C. Qualified Immunity
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`The defendants also argue that the claim against Bard in his individual capacity must be
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`dismissed as he is entitled to qualified immunity. [Dkt. 10 at 13-15]. Hussey responds that Bard
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`is not entitled to qualified immunity because he has asserted a valid First Amendment claim
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`against Bard, and his rights were clearly established at the time of the alleged violation. [Dkt. 13
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`at 17-19]. Qualified immunity provides that “government officials performing discretionary
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`functions” are generally “shielded from liability for civil damages insofar as their conduct does not
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`violate clearly established statutory or constitutional rights of which a reasonable person would have
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`known.” Floyd v. Farrell, 765 F.2d 1, 4 (1st Cir. 1985) (citing Harlow v. Fitzgerald, 457 U.S. 800,
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`818 (1982)). Qualified immunity applies to claims against government officials in their individual
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`capacities, and not to official capacity claims.6 Febus-Rodriguez v. Betancourt-Lebron, 14 F.3d 87,
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`5 Because the Court has denied the defendants’ request to dismiss Hussey’s claim against the City, it will
`not dismiss the official capacity claim against Bard. [See Dkt. 10 at 12].
`6 The Court notes that the official capacity claim against Bard “in essence, is simply a claim against the
`[m]unicipality,” as “an official capacity suit is, in reality, a suit against the governmental entity, [and] not
`against the governmental actor.” Febus-Rodriguez v. Betancourt-Lebron, 14 F.3d 87, 91 n.3 (1st Cir.
`1994) (citations omitted).
`
`14
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`Case 1:21-cv-11868-AK Document 25 Filed 10/11/22 Page 15 of 16
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`91 n.3 (1st Cir. 1994) (citations omitted). The Court must decide “(1) whether the facts alleged or
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`shown by the plaintiff make out a violation of a constitutional right; and (2) if so, whether the right
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`was ‘clearly established’ at the time of the defendant’s alleged violation.” Maldonado v. Fontanes,
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`568 F.3d 263, 269 (1st Cir. 2009) (citing Pearson v. Callahan, 555 U.S. 223, 232, 236 (2009)). To
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`answer the second question, the Court must evaluate whether, “in the specific context of the case,”
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`Decotiis, 635 F.3d at 36, the law was “sufficiently clear” such that “every reasonable official would
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`understand that what he is doing is unlawful,” Eves v. LePage, 927 F.3d 575, 583 (1st Cir. 2019)
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`(citation and internal quotation marks omitted). In other words, immunity “exists even where the
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`abstract ‘right’ invoked by the plaintiff is well-established, so long as the official could reasonably
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`have believed ‘on the facts’ that no violation existed.” Dirrane v. Brookline Police Dep’t, 315 F.3d
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`65, 69 (1st Cir. 2002) (citations omitted). Courts need not follow the two-step analysis sequentially.
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`Maldonado, 568 F.3d at 270.
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`“The Supreme Court has ‘repeatedly told courts’ not to define the qualified immunity inquir