COMMONWEALTH OF MASSACHUSETTS
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`59
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`SUPERIOR COURT DEPARTMENT
`OF THE TRIAL COURT
`CIVIL ACTION NO.: 1780CV00033
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`Superior Court - Hampshire
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`3/31/2022
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`HAMPSHIRE, ss.
`
`PATRICK BUCHANAN
`and
`TODD DODGE,
`Plaintiffs,
`
`vs.
`
`TOWN OF GREENFIELD
`and
`ROBERT HAIGH,
`Defendants.
`
`PLAINTIFFS’ JOINT OPPOSITION TO DEFENDANTS’ MOTION IN LIMINE TO
`PRECLUDE TESTIMONY CONCERNING GREENFIELD OFFICERS
`
`INTRODUCTION
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`The Plaintiffs, Patrick Buchanan (“Buchanan”) and Todd Dodge (“Dodge”) and submit
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`this Joint Opposition to Defendant’s Motion in Limine to Preclude Testimony Concerning
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`Greenfield Officers. The evidence that Defendants seek to preclude is directly relevant to the
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`proof of the race discrimination, retaliation, and whistleblower claims brought by the Plaintiffs,
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`and there is no basis to bar the introduction of the evidence described herein.
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`EVIDENTIARY STANDARD
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`The evidence that Defendants seek to preclude is material, relevant, and admissible. As
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`the Supreme Judicial Court has instructed:
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`The most probative means of establishing that the plaintiff's termination was a
`pretext for racial discrimination is to demonstrate that similarly situated white
`employees were treated differently.
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`

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`Matthews v. Ocean Spray Cranberries, Inc., 426 Mass. 122, 129 (1997) (emph. suppl.) (citing
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`Smith v. Monsanto Chem. Co., 770 F.2d 719, 723 (8th Cir. 1985), cert. denied, 475 U.S. 1050,
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`89 L. Ed. 2d 581, 106 S. Ct. 1273 (1986) (the fact of discriminatory motive “can be inferred
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`from differences in the treatment of [employees of different races]”)).
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`In this case, the Defendants’ Motion attempts to nitpick the comparator co-workers and
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`events and distinguish each case in order to erase a history of favoring white employees and
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`sabotaging the career of Buchanan, who should have become the Defendants’ first ever black
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`Sergeant. However, the Defendants’ arguments must all be rejected. The Greenfield Police
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`Department (“GPD”) is a small police department and at all times relevant hereto it had no more
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`than 35 sworn police officers. The supervisory staff totaled no more than ten (10) sworn police
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`officers – a Chief, a Deputy Chief, two Lieutenants, and six Sergeants. The balance of the force
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`consisted of approximately 20-25 officers. The evidence cited herein relates to misconduct
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`ignored when committed by white employees and enforced with hyper-scrutiny when alleged or
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`manufactured against Buchanan, and the one white employee who objected to his mistreatment,
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`Plaintiff Dodge. It is permissible for each Plaintiff to “identify other employees to whom he is
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`similarly situated in terms of performance, qualifications and conduct, without such
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`differentiating or mitigating circumstances that would distinguish their situations.” Id., at 130
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`(internal citations omitted). In each case, Defendants have failed to raise any material
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`distinguishing features that would bar the comparison of Buchanan and Dodge to Haigh, Rode,
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`Clark, McCarthy, and the other employees of GDP. All of the cases cited by the Defendants
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`relate to discussions and considerations made by a trial court in considering and ruling on
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`summary judgment motions that are distinguishable. The instant issue is whether Plaintiffs may
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`offer evidence that the Defendants disciplined and treated the Plaintiffs differently from their
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`white peers within GPD. Of course, any analysis of Matthews leads to the resounding answer to
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`that question in the affirmative.
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`This is supported by the fact that the Supreme Judicial Court expanded upon Matthews in
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`the 2016 case of Bulwer v. Mount Auburn Hospital, 473 Mass. 672, (2016). Bulwer is a race
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`discrimination case in which the plaintiff presented evidence that showed that the stated reason
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`for the various actions taken by the employer were not the real reason and that, when taken as a
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`whole, the evidence would lead a rational jury to conclude that the reasons for the employment
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`action in question was pretextual. Id., at 684-85.
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`In reversing summary judgment granted to the defendant hospital, the Bulwer decision
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`noted various comparators and failures by the Defendant to follow rules and procedures that the
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`Court reasoned could be seen as evidence of discrimination. Id. In Bulwer, these categories of
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`relevant, material and admissible evidence included:
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`(1) positive evaluations of the plaintiff inconsistent with the defendant’s basis for
`termination;
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`(2) incidents where similarly situated non-black interns were given opportunities
`to remediate or repeat rotations where their work had been below grade while the
`plaintiff in Bulwer was not extended courtesies;
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`(3) testimony and evidence of another African American doctor who identified
`three separate incidents involving white doctors whose deficient performances
`were addressed to the hospital staff, but they were not subject to any disciplinary
`action, or the disciplinary action was years later;
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`(4) comments by the plaintiff’s evaluators and supervisors as reflecting
`“[s]tereotypical
`thinking … categorizing people on
`the basis of broad
`generalizations”;
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`(5) failure to follow written procedures in terminating the plaintiff; and
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`(6) “white supremacist” literature being found in the break room and a failure by
`administrators to discipline employees who left the offensive materials behind.
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`Id., at 684-88.
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`The Supreme Judicial Court held that all of these categories (many of which are
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`duplicated by the Defendants in this case) are categories and examples of relevant evidence on
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`the issue of a discriminatory bias. All of the considerations and reasons recognized by Bulwer
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`apply and govern the evidence which the Defendants improperly seek to bar in this Motion.
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`Consistent with Matthew and Bulwer, the Defendants’ Motion must be denied as the evidence in
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`question is relevant, material and admissible.
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`ARGUMENT
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`I.
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`THE EVIDENCE AT ISSUE IS RELEVANT TO PLAINTIFFS’ CLAIMS.
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`A. Plaintiff Patrick Buchanan.
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`Buchanan, at times relevant to this case the only black member of the GPD, has asserted
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`race discrimination and retaliation claims arising from GPD’s steadfast refusal and failure to
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`promote him to the rank of Sergeant. Among the claims and theories presented by Buchanan is
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`that the GPD manipulated the Internal Affairs process to punish, suspend, and demote Buchanan
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`for alleged or frivolous violations of department rules, while ignoring or sweeping under the rug
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`serious infractions committed by white officers, including Defendant Chief Haigh himself. Chief
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`Haigh is the ranking sworn officer in the department, but the Greenfield Mayor is the appointing
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`authority. Any and all discipline imposed by the Chief may be appealed to the Mayor and
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`thereafter to third-party arbitration. In this case Mayor Martin heard and ruled on appeals by
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`Buchanan and Dodge of discipline imposed on them by Chief Haigh.
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`On January 30, 2015, Buchanan was subject to a three-day suspension, a demotion from
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`Provisional Sergeant, and removed as a Field Training Office due to his treatment of a minor
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`operator from a December 2014 traffic stop. (See the Buchanan Internal Affairs Complaint and
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`Investigation Documents, attached hereto as Exhibit 1). In this traffic stop, Buchanan issued a
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`warning to the young driver, instead of several tickets, and told the young man to do something
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`nice for his mother with the money saved by Buchanan’s legitimate exercise of discretion.
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`GPD learned of the December 2014 incident when the mother was in the department and
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`asked about officer Buchanan, stating she wanted to thank him for the way he treated her son.
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`Thereafter, GPD conducted a “No Holds Barred” investigation against Buchanan to turn a
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`compliment and thank you into a discipline, demotion and suspension. Based on the
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`investigation, Chief Haigh imposed the above-referenced discipline and provided the following
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`reasoning:
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`You placed the Greenfield Police Department in a negative light by overstepping
`your authority to create punishments which are not part of your discretionary
`powers…By your own admission, this tactic of, in your words, ‘paying it
`forward,’ has been utilized on several occasions. This is not part of a police
`officer’s training, nor is it part of your discretionary powers under the law.
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`(See Chief Haigh Letter of January 30, 2015, attached hereto as Exhibit 2.)
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`After the suspension imposed by Defendant Chief Haigh, Buchanan with material
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`assistance from Plaintiff Dodge, appealed Buchanan’s demotion and suspension to Mayor
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`Martin. The Mayor rubber-stamped the Chief’s decision. Thereafter, again with material
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`assistance provided by Dodge, Buchanan appealed to third-party arbitration. After a hearing, the
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`arbitrator issued a decision favorable to Buchanan in mid-October 2015 reducing the suspension
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`to a mere reprimand. However, by then GPD had achieved its goal of sabotaging Buchanan’s
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`promotion to becoming the first black Sergeant in the department’s history.
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`B. Plaintiff Todd Dodge.
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`Sergeant Todd Dodge, a white member of the GPD, repeatedly objected to the
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`Defendants’ mistreatment of Buchanan, served as Buchanan’s union representative, and helped
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`Buchanan through his successful arbitration challenge ending in approximately October 2015.
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`Within rapid succession two months later, on December 19, 2015, the Defendants placed Dodge
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`on administrative leave pending an Internal Affairs Investigation. Prior to that adverse action,
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`Dodge was serving as a Sergeant commanding the daytime uniform shift.
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`The basis for Defendants actions taken against Dodge are as follows. On the morning of
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`December 17, 2015, Detective Todd Clark received a call from an undisclosed individual about a
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`criminal subject, Shane Johnson. The caller reported that Johnson had warrants and was in
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`possession of heroin. Detective Clark then told Sgt Dodge that he received a call about Shane
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`Johnson and outstanding warrants. On receiving Clark’s news, Dodge responded, “You’re a cop,
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`go lock him up.” Clark, who was a subordinate to Dodge, laughed, turned away and did nothing
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`further on the matter. (See the Dodge Internal Affairs Investigation, attached as Exhibit 3.).
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`Dodge knew Shane Johnson, as he had previously arrested Johnson, and Johnson’s
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`alleged employer was also known to Dodge. Dodge drove by the employer’s business and saw
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`no activity. Dodge called the employer, Dave Kalinowski, asking Kalinowski to tell Johnson to
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`get up to court and take care of the outstanding warrants and during this conversation, in
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`response to Kalinowski’s inquiries, Dodge speculated that the initial caller was Johnson’s wife.
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`Subsequently, Johnson’s wife phoned Sgt. Dodge stating that she was not the caller and
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`asked Sgt. Dodge if he could find out who called and get back to her. Dodge did not promise to
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`take any action, never learned, and never reported the identity of the initial caller. Thereafter, the
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`initial caller placed another call to the GPD where she spoke with a Lieutenant and claimed she
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`was in danger if Dodge had revealed her identity. The Lieutenant instructed Dodge to take no
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`further actions, and Dodge followed these instructions.
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`Chief Haigh (who was aware of Dodge’s objections to the treatment of Buchanan over
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`the past year) ordered Dodge to be placed immediately on administrative leave and, in a
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`remarkable overreach, he took a step that he seldom if ever took before by referring the matter to
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`the Northwest District Attorney’s Office for criminal investigation against Dodge. After an
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`unnecessarily prolonged investigation that lasted almost 50 days, Chief Haigh recommended that
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`the Mayor impose a full, five-day, unpaid suspension on Dodge in connection with this matter.
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`(See Haigh letter dated January 14, 2016, attached as Exhibit 4.).
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`After a hearing, Mayor Martin imposed Chief Haigh’s recommended discipline finding
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`that Dodge violated Departmental Rule 4.02 – Conduct Unbecoming an Officer; Rule 5.1 –
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`Neglect of Duty; and, Rule 7.5 – Dissemination of Official Information. Mayor Martin in his
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`decision wrote to Dodge:
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`I expect the highest level of competency and dedication from GPD personnel.
`Damage to department’s reputation occurs when the public, who pays your salary,
`does not receive the highest level of service from GPD officers and supervisors.
`You are expected to be an example for all officers and recruits to model
`themselves after. Improperly disclosing information concerning the identify of a
`female caller whom you knew or should have known placed an undue risk of
`harm to other is not behavior that can be tolerated.
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`(Mayor Martin Decision dated February 5, 2016, attached as Exhibit 5.). As with Buchanan’s
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`discipline, an arbitrator later reduced the Defendants’ actions against Dodge by reducing it to a
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`mere reprimand and ordering back-pay.
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`C.
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`Defendants’ Misuse of the Internal Affairs Rules.
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`The Greenfield Police Department Rules regarding Internal Affairs, at page 56 state:
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`The criteria for determining the categories of complaints to be investigated by
`Internal Affairs include, but are not limited to, allegations of:
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`a) Corruption;
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`b) Brutality;
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`c) Use of Excessive Force;
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`d) Violation of Civil Rights;
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`e) Criminal Misconduct; and
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`f) Any other matters as directed by the Chief.
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`(See Internal Affairs Rules, attached hereto as Exhibit 6.).
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`Notably, Buchanan and Dodge did not violate in any way, shape or form any of the
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`subsections (a) through (e) above. This, however, did not stop the Defendants from misusing the
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`Internal Affairs process to discriminate and retaliate against the Plaintiffs. In contrast, and as
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`seen below, many of the incidents that the Defendants seek to bar as “irrelevant or inadmissible”
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`involve conduct by a white officer that involves criminal or other proscribed misconduct that is
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`directly on point with and should have been investigated by Internal Affairs as triggering
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`subsections (a) through (e) above.
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`II.
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`THE EVIDENCE RELATING TO THE GPD OFFICERS IS MATTHEWS AND
`BULWER EVIDENCE THAT IS RELEVANT, MATERIAL, AND ADMISSIBLE.
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`A.
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`Chief Haigh – Internal Affairs Matter.
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`Chief Haigh (a white employee) had a history of overstepping his authority in a vengeful
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`manner that far exceeded what he claimed justified tarnishing Plaintiff Buchanan’s career, and
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`the jury should be permitted to consider that the Defendants ignored and condoned his (a white
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`employee’s) improper actions. In July 2016, a Greenfield resident was arrested for operating a
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`motor vehicle under the influence. The operator, a woman, had driven over several mailboxes in
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`the daytime. A call for service issued, they tracked the license plate number, arrived at the
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`women’s home and when the Police arrived, she failed and refused to come to the door as she
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`was in the shower. The police entered her home, got her out of the shower, and arrested her for
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`operating under the influence. The woman was a single parent, had a least two minor children
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`living with her, and was employed as a nurse at the Baystate Franklin Hospital. Several days
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`after the arrest, the woman called one of the arresting officers – Jeffrey Soto, at the police
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`department and expressed her anger and resentment due to the arrest. In her closing the Nurse
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`told Soto that if any Greenfield officer came to the hospital they had better not look to her for
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`assistance. There is no report that Officer Soto felt threatened by the exchange. Neither Officer
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`Soto nor the Department sought to charge the woman for attempting to intimidate a police officer
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`by her complaints.
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`Chief Haigh had the discretion to charge the Nurse with witness intimidation or some
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`such charge. Instead of proceeding along those lines he elected to call the head of the hospital
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`and he spoke to the hospital administrator about the Nurse and her call to Officer Soto. As a
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`result of Chief Haigh’s call the hospital terminated the nurse’s employment. (See Exhibit 7, the
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`Haigh Internal Affairs Complaint.).
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`The woman’s family filed an Internal Affairs complaint against Chief Haigh as a result of
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`his vengeful actions that interfered with and caused this woman’s termination. Chief Haigh used
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`and revealed confidential information to achieve a result – the woman’s termination – that he
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`was not authorized to achieve. However, the Defendants took no action against Chief Haigh.
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`The Town’s refusal to investigate the complaint seriously, let alone impose any discipline on
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`Chief Haigh, is inconsistent with the GPD’s and Haigh’s treatment of Plaintiffs, Officer
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`Buchanan and Sgt. Dodge. Chief Haigh, through his disclosure of a confidential information
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`relating to the Nurse, imposed a sanction on the complainant, job loss, in addition to the already
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`pending OUI charge, that the Chief was not authorized to impose. Yet Buchanan, the African
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`American employee, was demoted for allegedly exceeding his authority by allegedly requiring
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`the young man to buy gifts for his mother and Dodge was sanctioned and investigated for
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`allegedly revealing confidential information. The jury is entitled to consider this blatant double
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`standard favoring GPD’s white Chief and disfavoring Buchanan, who would have been GPD’s
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`first ever black Sergeant but for the Defendants’ successful efforts to prevent his promotion.
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`B.
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`James Rode.
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`James Rode was one of the white officers promoted over Buchanan to Sergeant in
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`October 2015. Within two years, Rode was involved in an on-duty fatal accident on October 1,
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`2017, and he never returned to work. After the accident, Defendants GPD and Chief Haigh
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`allowed Rode to remain out of work collecting 100% of his pay on injured on duty status,
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`pursuant to M.G.L. c. 41, § 111F, from October 2, 2017 until his termination in January 2019.
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`The facts of the Rode accident are egregious and appaling. Rode was operating his Police
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`cruiser at a speed of approximately 80 miles an hour in a 25 mile per hour residential zone when
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`he struck another vehicle, and the 28-year-old driver of that vehicle died the next day from the
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`injuries that Rode caused. Rode was not in active Police pursuit at the time of the fatality. He
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`was proceeding to the other side of Greenfield in an attempt to intercept an alleged “erratic
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`driver.” (See the Rode Internal Affairs Report, attached as Exhibit 8.).
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`The fatality caused by Rode had tragic results for Sgt. Rode, the decedent, and their
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`respective families. It also brought immense discredit upon the GPD and the eyes of the public –
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`a pretextual factor allegedly motivating the strict discipline against Plaintiffs. The relevant issue
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`with Sgt. Rode is the fact that GPD, through Chief Haigh, allowed Rode to collect the § 111F
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`benefits for approximately sixteen months. Rode’s conduct was reckless beyond dispute. The
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`payment of § 111F was discretionary, and the Department and City have the discretion to refuse
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`to make payments. Chief Haigh, at his May 2021 deposition, attempted to disclaim
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`responsibility for the ongoing payments to Rode, but ultimately acknowledged that the payments
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`came from a general fund, not a third-party worker’s compensation insurer. When under oath,
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`Chief Haigh also conceded that GPD could have suspended the benefits. The records show that
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`the Town paid Rode salary and benefits totaling $128,841.80 in the timeframe from October 6,
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`2017 through his termination in 2019. (Attached as Exhibit 9 is Chief Haigh’s testimony as well
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`as a summary of the benefits paid to Rode while out Injured on Duty.).
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`The Rode incident is relevant in that Rode was allowed to remain on the payroll for about
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`sixteen months after the fatal traffic accident. Due to Rode’s recklessness a man was killed, yet
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`the department exercised its discretion in his favor and continued to pay Rode for sixteen months
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`even though he was not showing up for work. As outlined in Bulwer such a delay and differential
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`treatment of underlying incidents for the white employee is clearly relevant and probative to
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`race-based decision making. Again – unlike Buchanan – Rode and Chief Haigh are white.
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`While the Defendants’ discretion inured to Rode’s great benefit, Buchanan and Dodge were
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`deprived of that same discretion. The jury should be permitted to consider the stark contrast in
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`this decision making and the different outcomes result for those with different skin colors.
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`C.
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`Todd Clark.
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`Clark was promoted to Sergeant in 2020. Chief Haigh ranked Clark (a white officer) as
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`the highest ranked candidate giving him a numerical score of 80. In contrast Haigh ranked
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`Buchanan as ninth in the field with a numerical score of 54. The Chief’s assessment was 40% of
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`the score.
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`Criminal misconduct is one of the defined categories of complaints subject to
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`investigation under the Greenfield Police Department’s Internal Affairs Rules. See Argument
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`Section I(C) above. The record evidence shows that Clark was repeatedly under the influence of
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`alcohol while on the job. The records show incidents in January, September and December 2016
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`when one or more of Clark’s colleagues complained that he was under the influence. In response
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`to the September 2016 incident in which Clark showed up to an extra duty shift apparently under
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`the influence, Chief Haigh met with Detective Clark and informed him that due to the ongoing
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`concerns about Clark’s sobriety, Clark would have to submit to a breathalyzer test whenever the
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`Chief or Sgt. McCarthy had a concern as to Clark’s sobriety.
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`On December 16, 2016, Clark reported to the station, took a police cruiser and drove
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`from the Greenfield Police Station to the temporary courthouse west of I-91 to report to grand
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`jury duty. Sgt. Dodge and others reported to the Chief that Clark was under the influence before
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`leaving for the courthouse. Clark was not a supervisor, and as such, the investigation of Clark
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`could have been performed by any supervisor. However, Chief Haigh – in an extraordinary
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`move – personally intervened and went to the courthouse to investigate the matter himself.1 At
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`the courthouse, the Chief brought Clark into the Men’s Room and only Sgt. McCarthy
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`accompanied them. The Chief told Clark to take the breathalyzer. Clark declined stating that he
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`did not want to incriminate himself. Based on the interaction in the courthouse Men’s Room,
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`Chief Haigh testified at deposition that he formed the opinion that Clark was under the influence
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`of alcohol. The Chief prepared a two-page report that contains admissions by Clark that he did
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`not drink all the time, but when he did, he could not stop drinking until he was completely drunk.
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`Clark additionally disclosed to the Chief that on several recent occasions Clark had driven home
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`after being out drinking and should not have been operating a vehicle. (See the Clark Internal
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`Affairs Report, attached as Exhibit 10). It was also obvious that Clark had been drunk on duty
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`many times before.
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`With respect to Clark’s December 15, 2016 drunk-on-duty violations, Chief Haigh did
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`not require Clark to actually take the breathalyzer test nor was any field sobriety test
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`1 Please recall that the Chief would be the one to recommend any discipline and it is improper for the investigator to
`act as judge and jury as well.
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`administered. Clark was not read his Miranda rights, and Clark’s case was never referred to the
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`Distract Attorney’s Office, and there was no further Internal Affairs investigation. Clark was
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`never charged with or arrested for any offense despite his obvious intoxication and his admission
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`to Chief Haigh that he had driven home on several occasions while under the influence. In
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`contrast to the Defendants’ treatment of Dodge there was no call, letter or referral to the District
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`Attorney’s office for criminal investigation or prosecution.
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`No discipline was issued against Clark for clear, repeated, violations of the Departmental
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`Rules prohibiting an officer from being under the influence of alcohol while on duty. No
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`discipline was issued, and no criminal charges were pressed against Clark for operating under the
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`influence on December 16, 2016, or any of the other occasions he referenced. Nor was any
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`action taken Clark for being in possession of a firearm while under the influence of alcohol.
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`The Chief, in a letter dated January 12, 2017, attempted to rationalize the Defendants’
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`treatment of these incidents stating that no action was taken against Clark “by this Department
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`only for the fortune that your dangerous behavior did not cause undo public embarrassment to
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`the Department, or other circumstances which could have been deemed egregious. I feel both
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`you, the Department and the City are all exceptionally fortunate how this ended.” (U Exhibit
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`11.). Of course, this is an astonishing finding by the Chief considering that Clark was drunk on
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`duty and the cover-up of his misconduct took place at all places in a public courthouse, thus
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`making a mockery of the public trust we place in police officers one of our very halls of justice.
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`Chief Haigh’s letter essentially states that the Department did not take disciplinary or
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`other action against Clark because they had successfully buried it, and no one knew that
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`Greenfield had intoxicated cops driving their cruisers or performing duties at the courthouses.
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`The letter plainly expresses that because the Chief believes the Defendants were able to bury and
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`cover-up the on-the-job and operating under the influence incidents, no further discipline would
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`be necessary. Of course, Clark’s black co-worker, Buchanan, received a much different response
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`from Chief Haigh when Buchanan – sober – exercised discretion with a teenaged motor vehicle
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`driver.
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`Clark and Buchanan were competitors for the 2020 and 2021 Sergeant promotions. Clark
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`was ranked substantially higher than Buchanan, despite the fact that Clark engaged in conduct
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`which clearly violated the Department’s Rules as well as the criminal laws of this
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`Commonwealth. In another example the Defendants discriminatory mindset Haigh inexplicably
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`gave Clark and Buchanan matching scores under the category of “Nature of reprimands or
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`disciplinary measures.” As discussed in Bulwer, these facts and the differences in treatment are
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`directly probative to proving race-based discrimination and retaliation. Public employees,
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`including police officers, are not above or exempt from the provisions of state law, including the
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`criminal law which applies to private citizens. As such, there is no basis to exclude the Clark
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`evidence from trial, and the jury should be permitted to consider it especially in light of the very
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`different and career-altering treatment applied to Buchanan and Dodge.
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`D.
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`Dan McCarthy.
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`Dan McCarthy is the longest serving member of the GPD, and his father was a Greenfield
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`Police Officer and served as Chief for over 20 years. McCarthy, a white employee, has
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`repeatedly received preferential and lenient treatment in stark contrast to Buchanan and Dodge.
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`1.
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`McCarthy’s First Ethics Violation.2
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`The Department’s Internal Affairs records identify McCarthy as the “Complainant” in the 2015 Buchanan
`2
`discipline arising out of Buchanan merely exercising discretion to help and teach a lesson to a teenaged motorist.
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` McCarthy was promoted to Sergeant in circumstances that led to a State Ethics
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`Commission’s investigation and a written deposition in which McCarthy’s father, former Chief
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`McCarthy, essentially pled to “facts sufficient” and paid a $3,500 fine. (See Exhibit 12.). The
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`younger McCarthy could have stepped down, refusing to benefit from a tainted promotion
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`process. McCarthy did not so act but continued in the role until his 2021 promotion to
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`Lieutenant. As he was the complaining witness later in the “claim” against Buchanan,
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`significant improprieties in McCarthy’s career and the Defendants’ leniency in response thereto
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`becomes even more relevant considering the hypocrisy of the hyper-scrutiny placed on Buchanan
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`and Dodge.
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`2.
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`McCarthy’s and GPS’s Support of the Confederate Flag.
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`In December 2015, a social media storm erupted in Greenfield, triggering various in-
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`person protests, vigils, as well as a lot of press attention and a social media debate due to the
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`disclosure that there was a Confederate flag hanging in a garage owned by Sgt. McCarthy,
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`adjacent to a site where McCarthy or his family was building a home. (See Media Reports at
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`Exhibit 13.). Of course, the Confederate flag has long been a symbol of racism. 3 Even today,
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`McCarthy was not a party to the conversation with the young man’s mother, but Detective Clark told him of the
`mother’s positive feelings as to Buchanan’s treatment of her son. Armed with that knowledge McCarthy reported up
`the line his belief that something was amiss. In his letter McCarthy acknowledges that he is aware of Buchanan’s
`recent promotion to provisional Sergeant.
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`The court in State of Tennessee v. Tim Gilbert, made the following observations about the confederate flag.
`3
`“[t]he use of an emblem or flag to symbolize some system, idea, institution, or personality, is a short cut from mind
`to mind. Causes and nations, political parties, lodges and ecclesiastical groups seek to knit the loyalty of their
`followings to a flag or banner, a color or design.” W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 632 (1943).
`“Flags themselves have the capacity to communicate messages pertaining to, say, a government's identity, values, or
`military strength.” Shurtleff v. City of Boston, 986 F.3d 78, 88 (1st Cir. 2021) (citations omitted). The confederate
`flag is no different. To determine the political ideals of the Confederacy that could be conveyed by the flag in this
`case, we look to documents created at the time its founding. At the time they adopted the various Articles of
`Secession, each of the Confederate states publicly identified the reasons behind the decision to secede from the
`Union, and the documents published by the Confederate states identified the right to hold black people in chattel
`slavery as central to the Southern way of life and, thus, paramount among those justifications. Those who bore the
`flag not only defended slavery but endorsed it fully using dehumanizing and racist language. See Evans & Cogswell,
`Printers to the Convention, Declaration of the Immediate Causes which Induce and Justify the Secession of South
`Carolina from the Federal Union, p. 1, 8 (1860); E. Barksdale, State Printer, Journal of the State Convention and
`15
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`

`

`Courts continue to find that a witness’s possession, brandishing, or, as here, McCarthy’s multiple
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`year public display of the Confederate flag, is relevant in cases involving claims of racial
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`discrimination. Courts have found that “ownership of a Confederate flag was relevant for the
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`trial judge, as factfinder, to assess whether [the flag’s owner or supporter] harbored improper
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`racial bias.” Commonwealth v. Jackson, 240 A.3d 119, 25 (Pa. Super. Ct. 2020).
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`The flag is further relevant on the issue of credibility. McCarthy testified at deposition
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`that he did not know who hung the flag, when it first appeared prior to December 2015, but
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`admitted that it was still there as of his December 2018 deposition and that he is not offended by
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`the Confederate flag. In contrast Haigh testified at his April 2018 deposition that McCarthy told
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`him that it was his flag and that it was there because McCarthy “liked the Dukes of Hazzard.”
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`The Confederate flag is relevant and admissible as to McCarthy’s credibility and the issue of
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`whether he and others at GPD harbored improper racial. It is noteworthy that while McCarthy
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`complained about Buchanan and triggered the 2015 discipline and demotion that McCarthy
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`Ordinances and Resolutions adopted in January 1861, p. 86 (1861) (Mississippi); Boughton, Nibbet & Barnes, State
`Printers, Journal of the Public and Secret Proceedings of the Convention of the People of Georgia, p. 104 (1861);
`Dyke & Carlisle, Journal of the Proceedings of the Convention of the People of Florida, p. 18 (1861); Declaration of
`the Causes which impel the State of Texas to recede from the Federal Union—also the Ordinance of Secession, p. 3
`(1861); Wyatt M. Elliott, Printer, Journal of the Acts and Proceedings of a General Convention of the State of
`Virginia, p. 93 (1861); Wood, Hanleiter, Rice & Co., The History and Debates of the Convention of the People of
`Alabama, p. 78 (1861). The Confederate Constitution provided that “[i]n all [new Confederate] territory the
`institution of negro slavery, as it now exists in the Confede