Case 1:21-cv-11868-AK Document 61 Filed 03/12/24 Page 1 of 33
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`Civil Action No. 1:21-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, in his capacity as
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`Commissioner of the Cambridge Police
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`Department
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`Defendants.
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`MEMORANDUM AND ORDER
`ON CROSS-MOTIONS FOR SUMMARY JUDGMENT
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`ANGEL KELLEY, D.J.
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`On February 25, 2021, nine months after George Floyd’s murder by a police officer,
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`while the nation was still in a heated debate over racism and police brutality, Cambridge Police
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`Officer Brian Hussey (“Hussey”) reposted an article about a police reform bill called “the
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`George Floyd Act” on his personal Facebook page. His comment accompanying the post said:
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`“This is what its come to ‘honoring’ a career criminal, a thief and druggie . . . the future of this
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`country is bleak at best.” [Dkt. 1 (“Compl.”) at ¶ 11]. Despite the post being deleted shortly
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`thereafter, it was brought to the attention of then Police Commissioner Branville Bard (“Bard”)
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`by officers of the local National Association of Advancement of Colored People (“NAACP”)
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`chapter and a local community activist. Hussey was then placed on leave.
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`After being disciplined, Plaintiff Hussey brought this action pursuant to 42 U.S.C.
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`§ 1983, against the City of Cambridge and Bard (together “the Defendants”), alleging that the
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`1
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`Defendants retaliated against him in violation of his First Amendment right to freedom of
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`speech. [Compl.]. The Defendants then filed a Motion to Dismiss pursuant to Fed. R. Civ. P.
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`12(b)(6). [Dkt. 9]. This Court denied the Defendants’ Motion to Dismiss, except as to the claim
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`brought against Commissioner Bard in his individual capacity. [Dkt. 25]. While the Court found
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`that Hussey’s post could have had a detrimental impact on the perception of the Cambridge
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`Police Department internally and in the community, the Court could not dismiss the case on the
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`question of whether the department’s interest outweighed Hussey’s interests without a more
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`developed factual record. [Id. at 13]. The Court therefore allowed Hussey’s claims to proceed
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`against the City of Cambridge and Commissioner Bard in his official capacity.0F
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`1 [Id.].
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`On June 8, 2023, the City of Cambridge filed their Motion for Summary Judgment. [Dkt.
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`37]. The same day, Plaintiff filed his Motion for Partial Summary Judgment on the question of
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`the Defendants’ liability for violating his First Amendment right to free speech. [Dkt. 41]. The
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`Court heard oral argument on January 29, 2024 and took the matter under advisement. [Dkt. 60].
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`The Court, having considered both of these motions, the parties’ oppositions, and reply briefs,
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`finds that Plaintiff has failed to create a material dispute of fact to survive Defendants’ Motion
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`for Summary Judgment. The Court also finds that because it has determined that Hussey’s
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`speech was not protected and because there is no factual dispute for a jury to resolve, the
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`Defendants’ Motion for Summary Judgment [Dkt. 37] is GRANTED, Plaintiff’s Partial Motion
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`for Summary Judgment [Dkt. 41] is DENIED, and his case is accordingly DISMISSED.
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`1 In August 2022, after this lawsuit had already commenced, Hussey was promoted to the rank of Sergeant. [Dkt. 54
`at II at ¶ 5]. The Court therefore denied as moot Plaintiff’s request to amend his complaint to add a retaliation claim
`related to his denial of a promotion, after counsel reported his intentions to withdraw the motion. [Dkts. 14, 24].
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`2
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`I.
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`BACKGROUND
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`In evaluating the cross-motions for summary judgment, the Court relies on the parties’
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`statements of material facts, responses thereto, and any attached exhibits the parties have
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`submitted. [See Dkts. 39, 43, 52, 54, 58-1]. The Court accepts as true each material fact to the
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`extent it has not been disputed by the opposing party and considers contested each material fact
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`that either party has disputed. Unless otherwise noted, the facts below are undisputed.
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`Giving due respect to George Floyd, the Court notes he was born in North Carolina in
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`1973 and moved to Houston shortly thereafter. [Dkt. 43 at ¶ 53]. He grew up in the Third
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`Ward—one of Houston’s most economically disadvantaged neighborhoods. [Dkt. 44-10 at 2-3].
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`Floyd was a star athlete, briefly playing collegiate basketball at Texas A&M University-
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`Kingsville, but returned to his old neighborhood in Houston without completing his degree. [Id.
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`at 3]. Thereafter, Floyd experienced a string of arrests and periods of incarceration. Between
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`1997 and 2005, he served eight jail terms on charges that included drug possession, theft, and
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`trespass. [Dkt. 43 at ¶ 54]. In 2007, he was charged with aggravated robbery with a deadly
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`weapon and was sentenced to five years in prison. [Id. at ¶ 55]. He was released on parole in
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`2013. [Id.]. Floyd thereafter turned his life around and appeared to live a law-abiding life. [Dkt.
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`44-10 at 4]. In 2014, he had a daughter. [Dkt. 44-12 at 9]. He became more involved in his
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`church’s program, which took men from Houston’s Third Ward neighborhood to Minnesota to
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`provide them with drug rehabilitation and job placement services. [Dkt. 44-10 at 4].
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`Floyd soon made the permanent move to Minneapolis, Minnesota. [Dkt. 44-11 at 8]. He
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`found work first as a security guard for the Salvation Army and later as a bouncer for a
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`nightclub. [Id.]. When the pandemic forced the nightclub to close, Floyd was out of work. [Id.
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`at 9]. On Memorial Day 2020, Floyd was at a convenience store when one of the store
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`employees thought he had paid for cigarettes with a counterfeit $20 bill and called the police.
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`[Id.]. The events that followed are known to all due to the widely circulated cellphone video
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`capturing Minneapolis Police Officer Derek Chauvin kneeling on Floyd’s neck for 8 minutes and
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`46 seconds, Floyd’s pleas that he could not breathe, and his body eventually going limp. [Dkt.
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`44-12 at 3]. Floyd’s last words “I can’t breathe” echoed those of Eric Garner and the Black
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`Lives Matter movement’s call to action. [Dkt. 44-9 at 4]. His killing ignited a national
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`reckoning on issues of racism, police brutality, and accountability for police misconduct, in
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`addition to local, national and global protests. [Id.]. Officer Chauvin was subsequently
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`convicted of second-degree murder; the three other officers who participated in the arrest were
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`likewise convicted on related charges.1F
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`2
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`The National Climate
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`The impact of Floyd’s death was felt here in Massachusetts where, as in the rest of the
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`country, protesters filled the streets by the thousands demanding an end to such violence. The
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`City of Cambridge saw over 3,500 people in the streets in one such protest.2F
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`3 In the neighboring
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`City of Boston, the alleged wanton use of pepper spray and riot batons against protesters led to a
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`2 Kiara Alfonseca, Derek Chauvin sentenced to 21 years on federal charges for violating George Floyd’s civil rights,
`ABC news (July 7, 2022), https://abcnews.go.com/US/derek-chauvin-sentenced-federal-charges-violating-george-
`floyds/story?id=86366456. The Court takes judicial notice of the updated details of the criminal trial following
`Floyd’s murder under Fed. R. Evid. 201(b).
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` Marc Levy, Protest draws thousands to hear the challenges of reforming police, education, other institutions,
`Cambridge Day (June 7, 2020), https://www.cambridgeday.com/2020/06/07/protest-draws-thousands-to-hear-the-
`challenges-of-reforming-police-education-other-institutions/. The Court takes here and elsewhere judicial notice
`under Fed. R. Evid. 201(b) of articles describing the unrest that occurred in the aftermath of George Floyd’s killing
`within Massachusetts between May 2020 and March 2021. See United States v. Griffin, 525 F.2d 710 (1st Cir. 1975)
`(taking judicial notice of the fact that forced busing in Boston “received substantial publicity and aroused
`widespread resentment.”).
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` 3
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`4
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`lawsuit accusing the Boston Police Department of using excessive force.3F
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`4 Protests were ongoing
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`when Hussey made his Facebook post, and many continued for months thereafter.4F
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`5
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`Officer Brian Hussey
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`Plaintiff Brian Hussey began working as a Cambridge police officer in 1998 and spent 10
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`years in the Special Investigations Unit (SIU) where he conducted roughly “a couple hundred”
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`drug crime investigations. [Dkt. 43 at ¶ 4]. For the first decade of his career, he worked as a
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`patrol officer in lower Cambridge. [Dkt. 39 at ¶ 12]. In June 2009, he applied to and joined the
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`SIU where he investigated drug and vice crimes. [Id. at ¶ 14]. Hussey worked in the SIU for ten
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`years, taking part in hundreds of drug crime investigations, where he worked with confidential
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`informants and spoke to drug users throughout the City of Cambridge. [Id. at ¶¶ 15-16]. To
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`secure the cooperation of these informants, Plaintiff had to reassure them that the police were
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`“going to protect them” and that “the police would do whatever [they] could to help them.” [Id.
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`at ¶ 17]. Much of Hussey’s time in the SIU was spent convincing drug users to trust him. [Id. at
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`¶ 18].
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`The Facebook Post
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`On February 25, 2021, Hussey shared on his Facebook page a WHDH news article titled,
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`“House Democrats reintroduce police reform bill in honor of George Floyd.” [Dkt. 43 at ¶ 5]. In
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`a comment he shared alongside the article, Hussey wrote, “This is what its [sic] come to
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`‘honoring’ a career criminal, a thief and druggie . . . the future of this country is bleak at best.”
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`4 Huffman v. City of Bos., No. 21-CV-10986-ADB, 2022 WL 2308937 (D. Mass. June 27, 2022).
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` 5
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` Associated Press, Protesters at Boston Rallies Call for Justice for George Floyd, Action on Police Killing Cases
`(Mar. 6, 2021), https://www.nbcboston.com/news/local/rally-in-boston-to-call-for-action-on-police-killing-
`cases/2321508/.
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`5
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`[Id. at ¶ 7]. The bill in question, which never passed,5F
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`6 proposed reforms to increase
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`accountability for police misconduct, enhance transparency and data collection, and to eliminate
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`discriminatory policing practices. [Dkt. 44-3 at 4]. Hussey reports that the day he made that
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`Facebook post was a training day, and since he had previously completed his training online, he
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`spent the day taking his children to the New England Aquarium instead. [Dkt. 43 at ¶ 12]. He
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`made the post at 8:08 AM using his personal phone while at home. [Id. at ¶¶ 14, 18; Dkt. 44-3 at
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`3]. Around an hour after his post, two comments were posted, neither of which Hussey replied
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`to. [Dkt. 43 at ¶¶ 15-16]. Hussey claims that he deleted the post a couple of hours after he
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`posted it. [Id. at ¶ 17].
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`The parties dispute whether the word “druggie” is inherently derogatory, but at minimum
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`it refers to someone who is a drug addict, and the parties agree that the term itself does not have
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`any racial connotation. [Dkt. 43 at ¶¶ 50-51]. In Hussey’s post, he did not identify himself as a
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`Cambridge police officer or reference his position in the police department. [Dkt. 43 at ¶ 8].
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`Most of the people on his Facebook though would have been aware that he was a police officer.
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`He estimates that around 91 of his Facebook friends as of 2023 were either retired or active
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`members of the Cambridge Police Department, while only 30 may have been unaware of his
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`involvement with the Cambridge Police Department. [Dkt. 39 at ¶ 10]. In April 2021, at the
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`time he made his post, Hussey had around 674 friends on his Facebook, of which a significant
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`number were Cambridge police officers. [Id. at ¶ 10].6F
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`7 His Facebook account is restricted;
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`6 George Floyd Justice in Policing Act of 2020, H.R. 7120, 116th Cong. (2020).
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` Plaintiff states that as of 2023, he has 535 Facebook friends. [Dkt. 54 at ¶ 9].
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`therefore, only those who have accepted his “friend requests” are able to see his posts. [Id. at ¶
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`9]. Hussey does not accept friend requests from people he does not know. [Id.].
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`The Complaints
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`Approximately six days later, on or around March 3, 2021, Commissioner Branville Bard
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`became aware of Hussey’s Facebook post after Richard Harding, who was then either the
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`President or Vice-President of the Cambridge NAACP, contacted him. [Dkt. 43 at ¶ 19; Dkt. 44-
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`5 (“Bard Tr.”) at 25:11-15]. According to Bard, the post was less than an hour old when a
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`screenshot was shared with the NAACP, who then shared it with Bard. [Bard Tr. at 31:2-15].
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`Bard was the police commissioner for the City of Cambridge from mid-2017 to August
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`2021. [Dkt. 43 at ¶ 34]. Bard and Cambridge City Manager Louis Depasquale met with
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`Harding, community activist Mo Barbosa, and former Mayor Ken Reeves (who was then an
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`Officer with the Cambridge NAACP) to discuss Hussey’s Facebook post via videoconference.
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`[Id. at ¶ 20; Bard Tr. at 26:17-24]. The group wanted to speak urgently. [Bard Tr. at 49:1-14]
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`Bard described the three community leaders as “alarmed and concerned about the post.” [Id.].
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`The identity of the person who initially brought the post to the NAACP’s attention was not
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`disclosed to Bard in order to protect that person’s anonymity. [Bard Tr. at 31:7-12]. Former
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`Mayor Reeves expressed his concern that Hussey’s post called into question the ability of the
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`Cambridge Police Department to serve in a biased-free manner and ran afoul of what the
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`Department should embody. [Dkt. 52 at ¶ 68]. At that meeting, Bard obtained a copy of the
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`Facebook post and shared it with the Professional Standards Unit (PSU) for investigation. [Id. at
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`¶ 69].
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`Bard’s Explanation
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`Bard considered the post “damaging to the reputation of the Cambridge Police
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`Department” because it was “insensitive to individuals who’ve suffered from substance use
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`issues.” [Dkt. 43 at ¶ 22]. He considered the use of the word “druggie” derogatory and
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`“dehumanizing” to people with substance abuse issues. [Id. at ¶ 26]. He did not think that race
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`played a role in Hussey’s post. [Id. at ¶ 27]. Still, Bard felt that the post disparaged George
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`Floyd and would cause irreparable harm to the Cambridge Police Department’s reputation. [Dkt.
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`39 at ¶ 24]. The Cambridge Police Department, as Bard describes it, disciplined Hussey for his
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`Facebook post because:
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`[I]t had negative connotations and it tore at the fabric of trust that we spent a long
`time building in the community. Folks viewed the Cambridge Police Department
`as one who favors prevention, intervention, and diversion over more serious or
`more punitive methods traditionally associated with the criminal justice
`system . . . we pride ourselves on the fact that we believe that individuals are
`better served through a social justice approach than through your traditional
`criminal justice approaches. And when you have that approach, that often means
`that you’re often working hand in hand with individuals who have . . . fallen in
`life and are working towards better outcomes. Some of those individuals have
`substance use issues.
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`[Id. at ¶ 25]. Bard considered the post especially harmful “in the context of the national
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`climate.” [Id. at ¶ 26]. He added that “trust takes a lifetime to build and just a moment to tear
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`down” and that “any individual associated with the Cambridge Police Department could in a
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`moment tear down . . . trust we’ve spent a long time building with community.” [Id.]. Bard
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`asserts that the Cambridge Police Department needs to have the public’s trust because the only
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`way the police department can function and do its job is “to be seen as trustworthy and legitimate
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`and bias free.” [Id. at ¶ 27]. Bard could not recall whether he received any additional calls or
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`complaints about the Facebook post, or if he received any additional complaints from Hussey’s
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`fellow employees at the Cambridge Police Department. [Bard Tr. at 31:2-5; 43:1-12].
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`The Investigation
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` During the police department’s investigation of the post, the Professional Standards Unit
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`(“PSU”) investigators only interviewed Brian Hussey. [Dkt. 52 at ¶¶ 31, 45]. Hussey made the
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`following statement where he attempted to put his words into context:
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`I have had many discussions with both coworkers and people in my personal life
`regarding the George Floyd incident and the subsequent police reform that has
`come about as a result of that incident. My thoughts and views are consistent and
`have never wavered.[] What happened to George Floyd on May 25, 2020 never
`should have happened . . . he did not deserve to die. Derek Chauvin is a disgrace
`to the badge and probably never should have worn one in the first place. The same
`goes for the officers who stood by and did nothing. I am 100% in favor of police
`reform. I will be the first person to say there absolutely are rogue, questionable
`and dishonest police officers who are an embarrassment and a disgrace to the
`profession. That being said, the one thing I disagree with is naming a police
`reform bill in “honor” of George Floyd. I understand that this incident, the
`proverbial straw that broke the camel’s back, led to the calls for police reform,
`hence the naming of the bill in his “honor.” While George Floyd did not deserve
`to have his life taken away that day, he was still a violent criminal. I feel that
`attaching the name of a violent career criminal, in “honor,” to a reform bill aimed
`at the betterment of policing is a disservice to the spirit of the bill. To take it a
`step further, I would feel this way if any career criminal of any race were to be
`“honored” in a such a manner. It wouldn’t matter to me if the person were Black,
`White, Hispanic, Asian, or any other race – my feelings would still be the same. A
`police reform bill should not be named after a violent career criminal. There are
`many other people of honor who could have been memorialized in the naming of
`this bill.
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` am the author of my words and I am fully aware of their meaning and intent. My
`comment in no way endorses the manner in which the Minneapolis Police
`Officers dealt with George Floyd. Regardless of his background, he deserved to
`be treated with respect and with no more force than was necessary to gain
`compliance with lawful orders.
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`Rather, my words reflect my opinion that legislators should have considered a
`more appropriate name for their bill. Any undertaking to interpret or portray them
`any differently than my intended meaning is misguided . . . As an American
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` I
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`citizen, I should be able to voice an opinion and have constructive discussions on
`a wide variety of topics, covering many aspects of life.
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`[Id. at ¶ 32]. When asked about the above statement, in particular Hussey’s condemnation of
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`Derek Chauvin’s actions, Bard said “I wish that was the content of his Facebook post because
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`then we wouldn't be sitting here today.” [Bard Tr. at 39:2-8]. At the same time, Hussey reported
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`that he received text messages of support from around a dozen fellow Cambridge police officers.
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`[Dkt. 52 at ¶ 33; Dkt. 44-7].
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`PSU conducted an investigation into the Facebook post and determined that it violated
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`Cambridge Police Department Rules and Regulations Chapter 2, Section III, Paragraph B, which
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`prohibits “discourtesy, rudeness, or insolence, to any member of the public” and Cambridge
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`Police Department Policies and Procedures Policy 230, Section V, Paragraph A, Part 1, which
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`requires officers to “be courteous and act professionally at all times.” [Dkt. 52 at ¶ 70]. After
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`two months of being placed on administrative leave, on April 30, 2021, Commissioner Bard
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`informed Hussey that he was suspending him without pay for four days based on his Facebook
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`post and the violation of Cambridge Police Department Rules and Regulations that it entailed.
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`[Dkt. 54-1]. The letter from Bard announcing the suspension also stated that the suspension was
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`“an appropriate sanction for what I view as a violation of Department policy, but more
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`importantly, to caution you against similar conduct.” [Id.].
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`Other Social Media Posts and Statements Regarding Substance Abuse
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`No policy prohibits Cambridge Police officers from posting on social media, although
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`they are prohibited from posting on social media about non-work-related matters during work
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`times. [Dkt. 43 at ¶ 35]. In a number of instances, the Cambridge Police Department is alleged
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`to have disciplined officers differently than it did Hussey for provocative or offensive postings.
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`For example, Jack Albert, a Deputy Superintendent with the Cambridge Police Department,
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`posted a comment on the department’s official Twitter page that Congressmen Joe Kennedy III
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`was “another liberal [****]ing jerk.” [Id. at ¶ 36-37]. Albert received a five-day suspension for
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`his post, although Bard did not recall whether he was placed on administrative leave or whether
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`he served his suspension. [Id. at ¶ 39]. Albert’s post about Congressmen Kennedy was reported
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`in the news. [Bard Tr. 14:17-24].
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`In July 2020, in response to a proposed bill redirecting police department funds toward
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`social services, the Cambridge Police Patrol Officers’ Association tweeted, “If you think seven
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`civilians killed in seven days in Boston is bad, just wait for the purge that will come.” [Dkt. 43
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`at ¶ 40]. The Cambridge Police Department did not investigate who wrote or posted the tweet.
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`[Id. at ¶ 41]. Bard could not recall either whether the Cambridge Police Department disciplined
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`another police officer who made a “deeply disturbing” social media post in praise of political
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`violence while out on extended leave. [Id. at ¶ 43].
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` In April 2022, the Cambridge Police Department received a complaint from a
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`community member that Hussey had said he “was tired of crackheads thinking they can get away
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`with everything.” [Id. at ¶ 46]. He was not placed on administrative leave following that
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`complaint and was not the subject of any discipline as a result of the complaint. [Id. at ¶ 47].
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`Hussey asserts that in July of 2022, while he and now Commissioner Elow were on duty
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`planning the arrests of drug users in Central Square via the use of informants, Elow said
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`something along the lines of, “well they are just crackheads.” [Id. at ¶ 48]. Elow admitted using
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`the word “crackheads” to describe drug users in Central Square and conceded to Hussey that it
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`was an inappropriate word to use. [Dkt. 44-6 (“Elow Tr.”) 10:20-13:11]. Hussey recalled, and
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`Elow disputes, that when Hussey brought up the fact that he was being investigated for using the
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`word “crackheads” that Elow said “you just can’t call them that to their face.” [Dkt. 43 at ¶ 49;
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`Elow Tr. 11:17-19].
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`II.
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`LEGAL STANDARD
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`The purpose of summary judgment is to “pierce the pleadings and to assess the proof in
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`order to see whether there is a genuine need for trial.” Mesnick v. Gen. Elec. Co., 950 F.2d 816,
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`822 (1st Cir. 1991) (citing Garside v. Osco Drug, Inc., 895 F.2d 46, 50 (1st Cir. 1990)).
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`Summary judgment may be granted when the record, viewed in the light most favorable to the
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`non-moving party, presents no “genuine issue of material fact,” and the moving party is entitled
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`to judgment as a matter of law. Paul v. Murphy, 948 F.3d 42, 49 (1st Cir. 2020) (citation
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`omitted). The Court must consider (1) whether a factual dispute exists; (2) whether the factual
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`dispute is “genuine,” such that a “reasonable fact-finder could return a verdict for the nonmoving
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`party on the basis of the evidence;” and (3) whether a fact genuinely in dispute is material, such
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`that it “might affect the outcome of the suit under the applicable substantive law.” Scott v.
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`Sulzer Carbomedics, Inc., 141 F. Supp. 2d 154, 170 (D. Mass. 2001); see also Napier v. F/V
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`DEESIE, Inc., 454 F.3d 61, 66 (1st Cir. 2006). Courts must evaluate “the record and [draw] all
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`reasonable inferences therefrom in the light most favorable to the non-moving parties.” Est. of
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`Hevia v. Portrio Corp., 602 F.3d 34, 40 (1st Cir. 2010) (citing Houlton Citizens’ Coal. v. Town
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`of Houlton, 175 F.3d 178, 183-84 (1st Cir. 1999)). A non-moving party may “defeat a summary
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`judgment motion by demonstrating, through submissions of evidentiary quality, that a
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`trialworthy issue persists.” Paul, 948 F.3d at 49 (citation omitted). When evaluating cross-
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`motions for summary judgment, the court must “view each motion, separately, through this
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`prism,” and “may enter summary judgment only if the record, read in this manner, reveals that
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`there is no genuine issue as to any material fact and that the moving party is entitled to judgment
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`as a matter of law.” Hevia, 602 F.3d at 40 (internal citations omitted).
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`III. DISCUSSION
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`The constitutional right to free speech is protected by the First Amendment’s guiding
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`principle that debate on public issues should be “uninhibited, robust, and wide-open.” N.Y.
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`Times Co. v. Sullivan, 376 U.S. 254, 270 (1964). The public interest in that “free and
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`unhindered debate on matters of public importance” is “the core value of the Free Speech Clause
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`of the First Amendment.” Pickering v. Bd. of Educ., 391 U.S. 563, 573 (1968). There is
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`“universal agreement that a major purpose of the First Amendment was to protect the free
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`discussion of governmental affairs.” Mangual v. Rotger-Sabat, 317 F.3d 45, 64-65 (1st Cir.
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`2003) (quoting Mills v. Alabama, 384 U.S. 214, 218 (1966)). This principle also protects, albeit
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`to a more limited degree, the speech of public employees. Curran v. Cousins, 509 F.3d 36, 44
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`(1st Cir. 2007) (“Public employees do not lose their First Amendment rights to speak on matters
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`of public concern simply because they are public employees . . . [s]till, those rights are not
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`absolute.”). “In general, government officials may not subject an individual to retaliatory
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`actions . . . for speaking out.” Gilbert v. City of Chicopee, 915 F.3d 74, 81 (1st Cir. 2019)
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`(internal citations and quotations omitted). However, when a citizen enters a public role, they
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`must accept certain limitations on their freedoms. Garcetti v. Ceballos, 547 U.S. 410, 418 (2006)
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`(“Government employers, like private employers, need a significant degree of control over their
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`employees’ words and actions; without it, there would be little chance for the efficient provision
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`of public services.”); Decotiis v. Whittemore, 635 F.3d 22, 29 (1st Cir. 2011) (“Government
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`employees undoubtedly walk a tight rope when it comes to speaking out on issues that touch
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`upon their fields of work and expertise.”). A government employee speaking as a citizen on a
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`matter of public concern can only be subject to “those speech restrictions that are necessary for
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`their employers to operate efficiently and effectively.” Garcetti, 547 U.S at 419.
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`Plaintiff brings his First Amendment claim pursuant to 42 U.S.C. § 1983 which
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`provides that “[e]very person” acting “under color of any statute, ordinance, regulation, custom,
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`or usage of any State or Territory or the District of Columbia” who subjects or causes to subject
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`someone “to the deprivation of any rights, privileges, or immunities secured by the Constitution
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`and laws” shall be liable to the injured party. 42 U.S.C. § 1983. An individual asserting a
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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).
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`The First Circuit requires a three-step inquiry to determine whether an adverse
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`employment action violated a public employees’ First Amendment right to free speech. Bruce v.
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`Worcester Reg’l Transit Auth., 34 F.4th 129, 135 (1st Cir. 2022). This inquiry is modeled after
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`the balancing test initially articulated in Pickering. First, the Court must evaluate whether the
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`employee “spoke as a citizen on a matter of public concern.” Gilbert, 915 F.3d at 82 (quoting
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`Curran, 509 F.3d at 45). If the Court finds that the speech in question was made pursuant to the
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`speaker’s official duties, then there is no First Amendment claim as “[r]estricting speech that
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`owes its existence to a public employee's professional responsibilities does not infringe any
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`liberties.” Id. (quoting Garcetti, 547 U.S. at 421-22). Second, if the employee did speak as a
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`citizen on a matter of public concern, the Court must look to whether the government entity
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`involved had an adequate justification, based on the impact to its own operations, for the action it
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`took towards that employee. Bruce, 34 F.4th at 135 (quoting Curran, 509 F.3d at 45). Third, the
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`Court looks to whether the protected speech was a substantial or motivating factor in the adverse
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`employment action. Id.
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`There is no dispute as to the first and third prong. Hussey v. City of Cambridge, No. 21-
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`CV-11868-AK, 2022 WL 6820717, at *2 (D. Mass. Oct. 11, 2022); [Dkt. 53 at 2 n.2].
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`Therefore, the Defendants’ liability turns on balancing the interest of Hussey, as a citizen
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`speaking on a matter of public concern, with the interests of the Defendants in restricting that
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`speech to aid “the effective and efficient fulfillment of its responsibilities to the public.”
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`Connick v. Myers, 461 U.S. 138, 150 (1983). The Court must “consider (1) ‘the time, place, and
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`manner of the employee's speech,’ and (2) ‘the employer's motivation in making the adverse
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`employment decision.” Bruce, 34 F.4th at 138 (quoting Decotiis, 635 F.3d at 35). If these
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`factors demonstrate that the employee only faced those speech restrictions that were “necessary
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`for his employer to operate efficiently and effectively” then “the defendants’ restrictions on
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`speech were adequately justified.” Id. How cautious an employee must be with the words they
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`use “will vary with the extent of authority and public accountability the employee’s role entails.”
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`Rankin v. McPherson, 483 U.S. 378, 390 (1987).
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`Since only the second prong is in dispute, and because the balancing of interests is a
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`question of law the Court must decide, there is not a triable question of fact left for a jury. See
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`id. at 386 n.9 (describing test for whether speech is of public concern wherein “the ultimate
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`issue—whether the speech is protected—is a question of law”) (quoting Connick, 461 U.S. at
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`148 n.7); Davignon v. Hodgson, 524 F.3d 91, 100 (1st Cir. 2008) (describing Pickering
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`balancing test’s assessment of what the First Amendment protects as subject to de novo review
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`whereas question of causation in retaliation claim presents a question of fact). But see Moser v.
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`Las Vegas Metro. Police Dep’t, 984 F.3d 900, 905 (9th Cir. 2021) (“While the Pickering
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`balancing test presents a question of law for the court to decide, it may still implicate factual
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`disputes that preclude the court from resolving the test at the summary judgment stage.”);
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`Weaver v.