Brady v. Tamburini

• Decision Date: 09 February 2021
• Docket Number: C.A. No. 1:17-CV-00475-MSM-LDA
• Citation: 518 F.Supp.3d 570
• Court: U.S. District Court — District of Rhode Island
• Parties: James BRADY, (Detective, Retired), Plaintiff, v. Richard TAMBURINI, individually and in his capacity as Chief, Johnston Police Department and Town of Johnston, Defendants.

518 F.Supp.3d 570

James BRADY, (Detective, Retired), Plaintiff,

v.Richard TAMBURINI, individually and in his capacity as Chief, Johnston Police Department and Town of Johnston, Defendants.

C.A. No. 1:17-CV-00475-MSM-LDA

United States District Court, D. Rhode Island.

Signed February 9, 2021

John William Dineen, American Civil Liberties Union, Providence, RI, Elizabeth A. Wiens, Gursky Wiens Attorneys at Law, Ltd., North Kingstown, RI, for Plaintiff.

William J. Conley, Jr., Gina Maria Renzulli LeMay, Law Office of William J. Conley Jr., Providence, RI, for Defendants.

MEMORANDUM AND ORDER

Mary S. McElroy, United States District Judge.

The plaintiff, James Brady, a now-retired detective of the Johnston Police Department ("JPD"), has brought this action under 42 U.S.C. § 1983, asserting that the defendants, the Town of Johnston and the JPD's Chief, Richard Tamburini, violated his First Amendment right to free speech when they imposed discipline on him for comments he made to the Providence Journal. In deciding this motion, the Court must consider whether Detective Brady's comments are classified as protected speech and if the discipline imposed upon him for making those comments was violative of the United States Constitution.

Detective Brady has moved for partial summary judgment on the issue of liability and the defendants have moved for summary judgment on the entirety of Detective Brady's Complaint. For the following reasons, the Court GRANTS Detective Brady's Motion (ECF No. 18) and DENIES the defendants’ Motion (ECF No. 17).

I. BACKGROUND

At all relevant times, the Town of Johnston employed James Brady as a detective in its police department.¹ Detective Brady simultaneously served as President of International Brotherhood of Police Officers, Local 307, the police union ("the Union").

On July 1, 2015, an officer of the JPD and Union member, Adam Catamero, initiated a traffic stop. (ECF No. 1-1 at 2.) A witness to the stop, Lisa Roberti, who knew the stopped driver and whose father was a police officer, intervened and later filed a complaint against Officer Catamero for "conduct unbecoming an officer." Id. at 2-4. As a result, Chief Tamburini suspended Officer Catamero. Id. at 4.

On August 10, 2015, the Union filed a grievance against the Town of Johnston alleging that the suspension did not comport with just cause and was therefore in violation of the collective bargaining agreement. Id. at 3. The matter ultimately was brought to arbitration and Officer Catamero received an award in his favor on July 14, 2016. Id.

Prior to the arbitration award, Chief Tamburini, on June 8, 2016, ordered Officer Catamero to a "fitness for duty" examination. On June 1, 2016 Detective Brady had provided Chief Tamburini, with a memorandum concerning a comment made by Officer Catamero. According to this report Officer Catamero had said "I need to get something done, because when I put my uniform on, I feel like I want to kill someone." (ECF No. 17-4 at 3.)

Chief Tamburini ultimately terminated Officer Catamero on August 4, 2016. (ECF No. 16 ¶ 19; ECF No. 32 ¶ 58.) Officer Catamero then filed a wrongful termination suit in this Court on August 31, 2016. (ECF No. 16 ¶ 20.)

On September 15, 2016, Detective Brady called Jacqueline Tempera, a reporter with the Providence Journal , to discuss Officer Catamero's termination. Id. ¶ 22. He made the call from his home, while off duty and after he had gotten out of the shower. Id. Detective Brady's official duties as a detective did not include speaking with the media; in fact, JPD policy precluded him from speaking with the media on behalf of the Department. (ECF No. 1-4 at 1.)

After this telephone conversation, the Providence Journal published an article titled "Johnston Police Officer Sues Town to Get His Job Back." (ECF No. 1-2.) The article reported that

Detective James Brady, the union president, says high-ranking officers "didn't like the way [Catamero] did things," while working the detail. Namely, he would write traffic tickets for "anybody, no matter who they were." And despite an "unwritten rule" where officers were encouraged to write more tickets that could be processed through Johnston Municipal Court than through the Rhode Island Traffic Tribunal he refused – continuing to work by the book, Brady said. "He is a straightforward, all-business kind of guy ...."

Id.

On September 20, 2016, Detective Brady received a "Notice of Internal Investigation Pursuant to the Law Enforcement Officers’ Bill of Rights." (ECF No. 1-6.) Thereafter, on September 21, 2016, Ms. Tempera published another article in the Providence Journal titled "Johnston Police Union President Investigated for Speaking to Journal Reporter." (ECF No. 1-5.) The article reported that Detective Brady was called into Chief Tamburini's office and notified that he was the subject of an internal investigation for speaking with the newspaper on September 15, 2016. Id. The article quoted the internal affairs notification, that stated: "in speaking with a reporter, Brady, ‘brings the Department into disrepute’ and ‘impairs the operation of efficiency of the Department or officer.’ " Id. Also quoted in the article was Steven Brown, the executive director of the Rhode Island Affiliate of the American Civil Liberties Union, who stated that prohibiting an employee from speaking to the media "raises very basic and serious First Amendment concerns," and that "[p]olice officers do not completely waive their First Amendment rights, especially if they are speaking in a capacity other than an employee." Id.

On October 13, 2016, Detective Brady was interrogated by the JPD's Professional Standards Investigator regarding his "September 15th, 2016 communications with Ms. Jacqueline Tempera of the Providence Journal. " (ECF No. 1-8.)

On October 31, 2016, Chief Tamburini issued a two-day suspension to Detective Brady for speaking to the media. Id. In the suspension letter, Chief Tamburini wrote,

[Y]ou maintain that you spoke with Ms. Tempera in your capacity as President of the [Union] and not in your capacity as Detective James Brady. However, I have determined that your alleged distinction is not applicable in this instance. And it does not exempt you from the departmental rules and regulations.

Id.

Further, Chief Tamburini determined that Detective Brady was "speaking as a member of this department on internal departmental matters and as first-hand witness to the statements made by Mr. Catamero." Id.

It is evident that your comments to Ms. Tempera were made in order to bring this department in to [sic] disrepute. You implied ... Mr. Catamero was separated from service because "high-ranking officers didn't like the (Catamero) did things." And that there were "unwritten rules" in the department that he refused to follow. You made this statement despite your first-hand knowledge of the statements that Mr. Catamero made to you and Lt. Guilmette, which ultimately lead to him being deemed unfit for duty. You chose to feign ignorance as to those statements and opine that Mr. Catamero was separated from service because others in the department did not like him."

Id.

Chief Tamburini concluded that Detective Brady had violated the following JPD policies:

• #100.04, Section III(D)(1)(b), "Conduct Unbecoming an Officer";

• #100.04, Section III(D)(1)(v), "Dissemination of Information";

• #520.02, Section III(A)(2), "Public Information/Media Relations"; and

• #520.02, Section III(E)(1), "Internal Investigations."²

Detective Brady's comments to Ms. Tempera on September 15, 2016, were the basis of the punishment under each policy provision except the Internal Investigations Policy. Id. It was his subsequent conversation with Ms. Tempera, regarding the fact that an internal investigation had commenced for his prior comments to her, for which he was deemed to have violated the Internal Investigations Policy. Id.

II. SUMMARY JUDGMENT STANDARD

Summary judgment's role in civil litigation is "to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial." Garside v. Osco Drug. Inc., 895 F.2d 46, 50 (1st Cir. 1990). Summary judgment can be granted only when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56. "A dispute is genuine if the evidence about the fact is such that a reasonable jury could resolve the point in the favor of the non-moving party. A fact is material if it carries with it the potential to affect the outcome of the suit under the applicable law." Santiago–Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 52 (1st Cir. 2000).

When examining cross-motions for summary judgment the applicable standard does not change, and the Court must "consider each motion separately, drawing all inferences in favor of each non-moving party in turn." Green Mountain Realty Corp. v. Leonard, 750 F.3d 30, 38 (1st Cir. 2014).

III. DISCUSSION

A. Government Employee Speech and the First Amendment

"Speech by citizens on matters of public concern lies at the heart of the First Amendment, which ‘was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.’ " Lane v. Franks , 573 U.S. 228, 235-36, 134 S.Ct. 2369, 189 L.Ed.2d 312 (2014) (quoting Roth v. United States , 354 U.S. 476, 484, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957) ). As the Supreme Court first held in Pickering v. Board of Education , individuals do not relinquish their First Amendment rights by accepting employment with the government. 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). Notably, "speech by public employees on subject matter related to their employment holds special value precisely because those employees gain knowledge of matters of public concern through their employment." Lane , 573 U.S. at...