COMMONWEALTH OF MASSACHUSETTS
`
`\o-
`
`HAMPSHIRE,ss.
`
`PATRICK BUCHANAN
`and
`TODD DODGE,
`Plaintiffs
`VS.
`
`TOWN OF GREENFIELD
`and
`ROBERT HAIGH,
`Defendants
`
`SUPERIOR COURT DEPARTMENT
`OF THE TRIAL COURT
`CIVIL ACTION NO.: 1780CV00033
`
`HAMPSHIRE SUPERIOR COURT
`|
`APR 1 2 2022
`HARRY JEKANOWSKI,JR.
`CLERK MAGISTRATE
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`PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION FOR RECONSIDERATION
`OF THE COURT’S RULING ON THE ADMISSIBILITY OF EVIDENCE RELATING
`TO THE CONFEDERATE FLAG
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`Introduction
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`Now comethe above-captioned Plaintiffs and hereby oppose Defendants’ Motion for
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`Reconsideration on the groundsthat this Court was correctin its initial findings and ruling that
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`the evidence pertaining to the Confederate flag is relevant and admissible in this race-based
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`discrimination andretaliation case.
`
`Law
`The standard for addressing a motion for reconsiderationis fairly discretionary, and it has
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`been stated that “[t]hough there is no duty to reconsider a case, an issue, or a question of fact or
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`law, once decided, the power to do so remainsin the court until final judgment. ...” Kingv._
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`Globe Newspaper Co., 400 Mass. 705, 707 (1987)(citing Peterson v. Hopson, 306 Mass. 597,
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`601 (1940). Furthermore, a motion for reconsiderationis not “the appropriate place to raise new
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`arguments inspired by a loss before the motion judgein the first instance.” Commonwealthv._
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`Gilday, 409 Mass. 45, 46 n. 3 (1991). Massachusetts Courts disfavorre-filed motionsofthis
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`nature merely seeking “to get another “bite at the apple’ by [reframing] certain legal issues
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`following receipt of the court’s ruling.” Morgan v. General Soc'y of Mayflower Descendants,
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`No. 18-1272, 2019 Mass. Super. LEXIS 2188, at *3 (Nov. 14, 2019).
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`Argument
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`Defendants’ Motion for Reconsideration is misplaced. The factual
`record shows
`deposition testimony from Chief Haigh to the effect that Sgt. McCarthy told him the Confederate
`flag was his and that he had it there because he liked the Dukes of Hazard. McCarthy testified
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`that he did not know who put the Confederate flag there, how long the Confederate flag was
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`there, that he was not offended by the Confederate flag, and that even though the Confederate
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`flag became an issue in 2015, it was still there in December 2018. Further, the Greenfield Mayor,
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`the Police Chief and the Deputy Chiefall learned of and knewofthis issue in December 2015, as
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`all three of them visited a complaining neighbor’s home attempting to defuse the situation. Chief
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`Haigh issued a written order to Sgt. McCarthy directing him not to comment on the social media
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`regarding the flag. The controversy identified Sgt. McCarthy as a Greenfield police officer and
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`the owner of the garage with the flag. All of the social media posts, the public vigils, and
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`gatherings in reaction to and opposition to the confederate flag all placed the Greenfield Police
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`Department
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`in a negative light.
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`In other words,
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`it was “Conduct Unbecoming” that
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`the
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`Greenfield Police Department in an extremely negative light.
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`In Pereira v. Commission of Social Services, 432 Mass. 251 (2000), the SIC reversed a
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`summary judgment entered in favor of Ms. Pereira in her claim against DSS that her race-based
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`remarks at a political dinner were protected by the First Amendment. Pereira was a Protective
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`Investigator for DSS and a former Fall River City Councilor who made a race-based commentat
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`a testimonial for retirimg councilors. The remark was quickly reported in the press, generated
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`much negative reaction, and the DSS terminated Pereira because of her remarks. Ms. Pereira
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`brought suit contending that her remarks constituted protected political speech under the First
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`Amendment. At the trial court, Ms. Pereira and the DSS brought cross motions for summary
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`judgment with the trial court finding in favor of the employee and against the DSS. The SJC
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`reversed the trial court finding that Ms. Pereira could be subject to discipline and that the DSS
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`was entitled to retain its qualified immunity defense.
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`A key factor in the decision is that Pereira’s remark, much like McCarthy’s Confederate
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`flag, was not directly related to protected political speech. First, there is no contemporaneous
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`factual predicate for Defendants’ contention that Sgt. McCarthy raised the flag in furtherance of
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`political speech, At his own deposition, Sgt. McCarthy claimed he did not even know aboutthe
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`flag. However, Chief Haigh testified that Sgt. McCarthy did take ownership ofraising the
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`Confederate flag and, according to Chief Haigh, Sgt. McCarthy did so because he was a fan of
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`the long-discontinued television program, “The Dukes of Hazzard.” The record does not contain
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`any factual predicate or evidence to support a core First Amendment concern. Many other
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`jurisdictions have weighed in on the inapplicability of Defendants’ after-the-fact First
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`Amendment argument, as raised here. See D.C. v. R.R., 182 Cal. App. 4th 1190, 1229 (2010)
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`(actionable posted messages,initially claimed by defendant to be a “joke,” cannot later be recast
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`as political speech on a matter of public concern); Polish American Congress v. F.C.C., 520
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`F.2d 1248, 1250, 1253-56 (7th Cir. 1975) (television broadcast of derogatory Polish jokes did
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`not involve a public issue or an issue of public importance); Shub v. Westchester Community
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`College 556 F.Supp.2d 227, 244-46 (S.D.N.Y. 2008) (college president’s inappropriate use of
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`sexual jokes did not relate to an issue of public concern).
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`Even where there was a contemporaneous claim ofpolitical speech, as in Pereira, the SJC
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`found that Ms. Pereira’s remark “ha[d] little in common with speech the Supreme Court has
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`examined and determined to be of ‘public concern’; there islittle to link it to the central purpose
`of the First Amendment, ‘protecting the public marketplace [of] ideas and opinions{.],”” and that
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`there was no basis to relate Pereira’s remark to speech on a matter of public concern. Pereira,
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`432 Mass. at 258 (citing Eberhardtv. O”Malley, 17 F.3d 1023, 1026 (7th Cir. 1994)).
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`In this case the flag is relevant both as to Sgt. McCarthy’s state of mind and
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`discriminatory animus. Sgt. McCarthy is an actor in this drama, as well as with respect to the
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`respect to the Town. The facts show the Greenfield Police Department and the Town failed and
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`refused to take ANY action with respect to Sgt. McCarthy’s offensive display of the Confederate
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`flag, even when complaints originating from a same-sex neighbor with an African American
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`child spread not only through the Town but also across social media in a manner that was
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`discrediting to the Greenfield Police Department and the Town at large. The Defendants knew
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`about the Confederate flag, its racist symbolism, and the strong negative reaction it was creating
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`in the community, but they failed and refused! to investigate the matter, let alone take any action
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`with respect to it. Further, the evidence is clear that the Confederate flag remained in placeat
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`least through the date of McCarthy’s December 2018 deposition, a time-period in excess ofthree
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`years.
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`Clearly, the noted and ongoing display of a Confederate flag by a police department
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`supervisor, which has been identified by many in the community as racially hostile and
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`polarizing is an incident that warrants some action, or the failure to take any action, just even a
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`formal investigation is directly relevant to this case’s central issue of disparate treatment and race
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`hostility.
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`Sgt. McCarthy was the precipitant actor in the January 2015 Buchanan investigation that
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`resulted in Buchanan’s suspension, demotion, and the sabotaging of his becomingthefirst black
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`Sergeant in the history of the Greenfield Police Department. The Defendants denied Buchanan
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`that deserved and historic promotion because Buchanan allegedly brought discredit on the Police
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`Department by exercising discretion in the case of a young motorist. The motorist’s mother, so
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`moved by this act of discretion and positive community policing, appeared in person to thank
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`Buchanan and lauded his conduct in speaking with Officer Clark.
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`It was when this information
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`reached Sgt. McCarthy that Buchanan’s conduct was contorted and flipped from a positive to a
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`negative. Sgt. McCarthy filed became the complainant against Buchanan both in writing to
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`Chief Haigh and in private conversations with Chief Haigh, who agreed with and adopted Set.
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`McCarthy’s spin on the facts. As a supervisor and the “complainant” in Buchanan’s disciplinary
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`case, Sgt. McCarthy’s motives and views can be questioned and his steadfast three-year display
`of the Confederate flag is relevant evidence with respect to his motives and discriminatory
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`animus.
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`Also relevant is the Greenfield Police Department’s support of Sgt. McCarthy and refusal
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`to order Sgt. McCarthy to remove the flag or investigate the matter. While Plaintiffs counsel
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`now claims that such actions by the Town would not have been legally permissible,
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`it
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`is
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`important to note that the Defendants have produced no evidence that (1) Sgt. Murphy was then
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`claiming his display of the flag was, based upon political speech or (2) that the Town ever
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`requested or received a legal opinion from its counsel or anyone on the matter. Rather, the
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`record showsthat the Defendants have simply made up this argumentafter the fact. Moreover, it
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`is completely undercut by the fact that the Defendants concede that they ordered Sgt. McCarthy
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`not to make any public comments — even in his private capacity — on the topic of the Confederate
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`flag in any forum. Thus, the Town was presumably willing to cross “protected speech” lines
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`with respect to this off-duty gag order, but not with respect to the open displayoftheflagitself.
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`In addition, the decision in Duke v. Hamil, 997 F Supp 2d 1291 (N. D. Georgia, 2014)
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`upholds the demotion of a Georgia State University Deputy Police Chief for posting an image of
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`the confederate flag on social media accompanied by the phrase “It’s time for the second
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`revolution.” The Court’s decision closely examines the right of an public employee’s first
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`amendment right to speak on matters of public concern. Counter balanced to the individual’s
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`right of speech is the public employers right ‘to take action against employees who engage in
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`speech that may unreasonably disrupt the efficient conduct of government operations.
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`The Duke decision noted:
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`The government’s interest is efficient public service is particularly acute in the
`context of police departments, which ‘have more specialized concerns than a
`normal governmentoffice.’ [] Indeed, the Supreme Court has recognized the need
`for discipline (,) espirit de corps, and uniformity within the police force. Kelly v
`Johnson 425 US 238, 246, 96 S. Ct. 1440 (1976). The Eleventh Circuit has
`likewise recognized the unique'needs of police departments, noting, ‘Order and
`morale are critical to successful police work; a police departmentis a paramilitary
`organization, with a need to secure discipline, mutual respect, trust and particular
`efficiency among the ranks due toits status as a quasi-military entity different
`from other public employees.....Moreover, police departments havea particular
`interest in maintaining a favorable reputation with the public.
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`Id., at 1300-1301, (internal citations omitted). There, in a similar case involving a police officer
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`and the Confederate flag, the Court found that the “Police Department’s interests outweigh[ed]
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`Plaintiff's interest in speaking.” Id., at 1303.
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`Further, the Defendants’ citation to Cotriss v Roswell
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`is incomplete and in error. The
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`Decision that defendants cite to a ruling on a Motion to Dismiss brought by the defendants and
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`that was Motion was denied in a ruling dated Sept 26, 2017. However, the case was decided in a
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`Summary Judgment order entered for the defendant City of Roswell on July, 3, 2019 and
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`Plaintiff will have a copy of that Decision for the Court and Counsel. Further, the plaintiff
`employee appealed to the 11th Circuit Court and the matter was argued in June/July 2020, but no
`decision has been released. Presumably the Plaintiffand the defendant City reached some other
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`resolution negating the need for a decision from the Circuit Court.
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`Clearly, the Greenfield Police has a similar,legitimate, ongoing interest to insureits
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`members, including its supervisory officers are not engaged in, or using symbolsthat are patently
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`offensive and constitute hate speech. Defendants’ counsel has erroneously informed the Court
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`that the Town had norightto take disciplinary action against Set. McCarthy or to merely counsel
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`him and order him to stop displaying the Confederate flag. The Duke decision affirmsthat the
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`Town had such a right.
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`However, the issue with respect to the Town’s right to impose discipline on Set.
`McCarthy is a red herring. The facts show that neither the Town, nor the Police Department
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`took any official action against Sgt. McCarthy. Rather, the Greenfield Mayor and the Chief of
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`Police met with Sgt. McCarthy’s neighbors in an attempt to calm the situation. This public
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`outreach to calm a troubled situation, is in stark contrast to the Buchanan treatment where a
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`positive compliment, once contorted by Sgt. McCarthy himself and Chief Haigh, formed the
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`basis for a demotion, suspension, and a bar to ‘promotion.
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`The Confederate flag is relevant with respect to the comparator evidence in this case.
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`For example, while Sgt. McCarthy immediately found fault with Buchanan’s light treatment of a
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`young motorist, Sgt. McCarthy is identified in the record as accompanying co-worker Clark to
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`the Courthouse on December 16, 2016. The records of that incident report multiple officers
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`reporting that Clark was clearly under the influence of alcohol while on duty and in possession of
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`a firearm, yet the record contains not one word of objection from Sgt. McCarthy as to the
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`condition of his Caucasian protégé, Clark. Again, Sgt. McCarthy’s differential reaction and
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`response to these two incidents can be explained and rationalized, in part, by Sgt. McCarthy’s
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`embrace of and defiant three-year display of the Confederate flag.
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`With respect to the Town and Chief Haigh, the flag is relevant as to the Town’s failure
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`and refusal to take action. Pereira clearly recognizes and acknowledgesthat there are limits to a
`public employee’s free speech rights, and race-based remarks (and conduct) are sanctionable.'
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`The Town’s failure to take any action with respect to Sgt. McCarthy’s three-year display of a
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`Confederate flag is relevant as to their tolerance for actions by their public employees and
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`agents, and this case a supervisor, which is evidence of race-based hostility. The Town’s and
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`Chief Haigh’s failure and refusal to investigate, or to take any further action is directly relevant
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`as to the Town’s refusal and inability to address racially insensitive and hostile conduct. These
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`actions are relevant and material in a claim:of racial discrimination coming from that same
`Department. As the SJC held in Bulwer v. Mount Auburn Hospital, 47 Mass. 672, (2016), the
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`an employer’s refusal to take action against a racially offensive posting is relevant, just as in a
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`sex harassment case, an employer’s refusal to address sexually harassing material and conduct by
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`a supervisory employee is germane andcan triggerliability.
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`Last, it is noteworthy that the Defendants, in moving for reconsideration, have failed to
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`demonstrate no changed circumstances, new evidence or information, development of relevant
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`law, or a particular and demonstrable error in the original ruling or decision of this Court.
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`Rather,
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`the instant Motion is a mere retread of the Defendants’ earlier Motion in Limine
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`attempting to cover-up the Defendants’ and Sgt. McCarthy’s association with the Confederate
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`there was an arbitration on the DSS’s termination of plaintiff's
`identified that
`In Pereira, the Court
`]
`employment and the arbitrator reversed the termination to a one-year suspension and that suspension was not before
`the SJC. As such, the outcome ofthe case affirmed a one-year suspension for Ms. Pereira due to her objectionable
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`race-based remarks. Record. Pereira, 432 Mass. at 253 n.4.
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`flag and message of racism and hate for which it stands. This Court decided the issue correctly
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`the first time, and the Court’s ruling should stand.
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`Conclusion
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`For the reasons stated herein and in Plaintiffs’ initial opposition to the earlier version of
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`this Motion, and based upon the reasoning of the Court’s initial ruling, the Defendants’ Motion
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`should be denied.
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`THE PLAINTIFF,
`PATRICK BUCHANAN,
`BY HIS ATTORNEY,
`
`‘s/f Timothy J. Ryan
`
`Timothy J. Ryan, BBO#551680
`EGAN, FLANAGAN AND COHEN,P.C.
`67 Market Street - PO Box 9035
`Springfield, MA 01102-9035
`Tel: 413-737-0260; Fax: 413-737-0121
`tir@efclaw.com
`
`THE PLAINTIFF,
`TODD DODGE,
`BY HIS ATTORNEY,
`
`/s/ Michael G. McDonough
`
`Michael G. McDonough, BBO#682128
`EGAN, FLANAGAN AND COHEN,P.C.
`67 Market Street - PO Box 9035
`Springfield, MA 01102-9035
`Tel: 413-737-0260; Fax: 413-737-0121
`mgm(@efclaw.com
`
`Dated: April 11, 2022
`
`Dated: April 11, 2022
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`CERTIFICATE OF SERVICE
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`I, Timothy J. Ryan, hereby certify that a true copy of the foregoing document was served
`upon the Defendants’ counsel of record by delivering a copy of same via emailat
`lkesten@bhpklaw.comand ebrody@bhpklaw.com onthis date, April 11, 2022.
`
`

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`/s/ Timothy J. Ryan
`
`Timothy J. Ryan, Esq.
`
`16354-150792\445 188
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`10
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