# Brady v. Tamburini

> District Court, D. Rhode Island · February 9, 2021

URL: https://www.frixlaw.com/law-library/cases/10421529

## Case

- **Court:** District Court, D. Rhode Island
- **Decided:** February 9, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10421529

## How later opinions describe it (automated extraction)

- holding that this right was “clearly established prior to 1994”
- holding that “many police department policies, procedures, and rules affect, or have the potential to affect, the public health and safety and may qualify as ‘matters of public concern’”

## Opinion text

UUNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND

)
JAMES BRADY, (Detective, Retired), )
)
Plaintiff, )
)

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

RICHARD TAMBURINI, individually )

and in his capacity as CHIEF, )

JOHNSTON POLICE )
DEPARTMENT and TOWN OF )
JOHNSTON, )
)
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 . 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).
II. 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.”
at 2-4. As a result, Chief Tamburini suspended Officer Catamero. 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. at 3. The matter ultimately was
brought to arbitration and Officer Catamero received an award in his favor on July

14, 2016.
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

1 Detective Brady voluntarily retired from the Johnston Police Department on
December 7, 2017. (ECF No. 16 ¶ 47.)
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 , to discuss Officer Catamero’s termination. ¶ 22. He
made the call from his home, while off duty and after he had gotten out of the shower.
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 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 ….”

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
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.
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.’” 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.”
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 ” (ECF No.

1-8.)
On October 31, 2016, Chief Tamburini issued a two-day suspension to
Detective Brady for speaking to the media. 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.
Td.
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.” Jd.
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.”
Td.
Chief Tamburini concluded that Detective Brady had violated the following
JPD policies:
e #100.04, Section III(D)(1)(b), “Conduct Unbecoming an Officer’;
e #100.04, Section ITI(D)(1)(v), “Dissemination of Information”;
e #520.02, Section III(A)(2), “Public Information/Media Relations”; and
e #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. /d. It was his subsequent conversation with Ms. Tempera,
regarding the fact that an internal investigation had commenced for his prior

2 The relevant text of these policies is available in the sections analyzing each, below.

comments to her, for which he was deemed to have violated the Internal
Investigations Policy.
III. 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.”
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.” 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.”
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.’” ,
573 U.S. 228, 235-36 (2014) (quoting , 354 U.S. 476, 484 (1957)).
As the Supreme Court first held in , individuals do

not relinquish their First Amendment rights by accepting employment with the
government. 391 U.S. 563, 568 (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.” , 573 U.S. at 240. “There is considerable value … in encouraging,
rather than inhibiting, speech by public employees.” at 235-36. Were public
employees “not able to speak on these matters, the community would be deprived of

informed opinions on important public issues.” , 543
U.S. 77, 82 (2004). “The interest at stake is as much the public’s interest in receiving
informed opinion as it is the employee’s own right to disseminate it.”
On the other hand, a government employer has an interest in controlling the
operation of its workplace. , 391 U.S. at 568. As such, there must be a
“careful balance” … ‘between the interests of the [employee], as a citizen, in

commenting upon matters of public concern and the interest of the State, as an
employer, in promoting the efficiency of the public services it performs through its
employees.’” , 573 U.S. at 240 (quoting , 391 U.S. at 568 (1968));
, 635 F.3d 22, 29 (1st Cir. 2011). The government,
therefore, may “impose restraints on the job-related speech of public employees that
would be plainly unconstitutional if applied to the public at large.”
, 513 U.S. 454, 465 (1995) (hereinafter “ ”).
, 493 F. App’x 139, 141 (1st Cir. 2012) (“[T]he government acting as an
employer ‘has far broader powers’ than does the government acting as sovereign.”).

There are several aspects to the evaluation of a government employer’s
restriction of the speech of their employees. The first step is to determine if the
disciplinary action involved a generalized prohibition or is instead a result of a
particularized disciplinary action. If the restriction derived from a disciplinary
action, then courts in the First Circuit generally employ a three-part inquiry, derived
from and its progeny, to determine whether an adverse employment action
against a public employee violates his or her First Amendment free speech rights.

, 635 F.3d at 29-30; , 610 F.3d 756,
765-66 (1st Cir. 2010); , 509 F.3d 36, 45 (1st Cir. 2007).
First, a court must determine “‘whether the employee spoke as a citizen
on a matter of public concern.’” Second, the court must “balance ... the
interests of the [employee], as a citizen, in commenting upon matters of
public concern and the interest of the State, as an employer, in
promoting the efficiency of the public services it performs through its
employees.” Third, the employee must “show that the protected
expression was a substantial or motivating factor in the adverse
employment decision.” If all three parts of the inquiry are resolved in
favor of the plaintiff, the employer may still escape liability if it can show
that “it would have reached the same decision even absent the protected
conduct.”

, 635 F.3d at 29–30 (internal citations omitted).
However, when a “a government employee’s expression is restricted ‘through a
generally applicable statute or regulation, as opposed to a particularized disciplinary
action,’” the appropriate standard is that provided in the Supreme Court decision of
, 513 U.S. 454. , 297 F.3d 228, 237 (3d Cir. 2002)
(quoting , 196 F.3d 458, 464
(2d Cir. 1999)). In other words, applies when the challenged government

activity is a prior restraint; that is, an official policy to prohibit speech before it
happens. Prior restraints are constitutionally suspect and come to the Court “bearing
a heavy burden against constitutional validity,” because of the likelihood “that
communication will be suppressed, either directly or by inducing excessive caution in
the speaker, before an adequate determination that it is unprotected by the First
Amendment.” , 420 U.S. 546, 558 (1975);
, 413 U.S. 376, 390 (1973). In

the employment context, the trouble with a prior restraint is that it “‘chills potential
speech before it happens,’ and thus ‘gives rise to far more serious concerns than could
any single supervisory decision.’” , 513 U.S. at 468.
In assessing the constitutionality of a prior restraint on government employee
speech, the Court engages in a two-step analysis. First, the Court determines
whether the restriction regards matters of public concern. at 466. The Court

focuses on the text of the policy to make this determination. , 868
F.3d 853, 861 (9th Cir. 2017). If the prior restraint indeed inhibits speech on matters
of public concern, the Court then considers whether the First Amendment interests
of the plaintiff and the public outweigh the government's interest in functioning
efficiently. , 513 U.S. at 468; , 428 F.3d 67, 72 (1st Cir. 2005).
Here, although there was disciplinary action against Detective Brady
individually, the policies at issue are generally applicable to employees of the JPD.
Specifically, #520.02 imposes a clear prior restraint by prohibiting speech without the
“express approval of the Chief of Police or the PIO.” Similarly, #100.04 requires the

following of “departmental procedures” for an employee’s release of certain categories
of information, including “prior approval of the Chief or Commanding Officer.”
Detective Brady has made both facial and as-applied challenges to the JPD
policies at issue. A facial challenge is not limited to the facts of a plaintiff’s particular
case; in the First Amendment context, a restriction on speech is deemed facially
unconstitutional if it “punishes a ‘substantial’ amount of protected free speech,
‘judged in relation to the statute’s plainly legitimate sweep.’” , 907 F.3d

67, 72 (2018) (quoting , 539 U.S. 113, 118-19 (2003)). In contrast, an
as-applied challenge requires a plaintiff “to demonstrate that the statute, as applied
to his or her particular situation, violates” constitutional principles. , 253
F. Supp. 2d 244, 248 (D.R.I. 2003). The Court will consider each of the JPD policies
at issue, in turn.
BB. Johnston Police Department Policy #520.02(A)

JPD Policy #520.02(A), “Public Information/Media Relations,” provides in
relevant part as follows:
A. Persons Authorized to Disseminate Information

1. The Deputy Chief of Police is designated as the Department’s Public
Information Officer (PIO). Information, however, may be disseminated
by the following personnel after approval by the Chief of Police or his
designee:

a) Uniform Division Commander
b) Investigative Division Commander
c) Operations and Training Commander
d) Traffic/Special Services Commander
e) Watch Commander

2. Requests from the news media that are directed to specific members
of the police department will be directed to the PIO. Members are
prohibited from disseminating information or granting an interview on
police related matters without expressed approval of the Chief of Police
or the PIO.

The first question for the Court is whether #520.02(A) impacts matters of
public concern. , 513 U.S. at 466. “Speech involves matters of public
concern ‘when it can ‘be fairly considered as relating to any matter of political, social,
or other concern to the community,’ or when it ‘is a subject of legitimate news interest;
that is, a subject of general interest and of value and concern to the public.’” ,
573 U.S. at 241 (quoting , 562 U.S. 443, 453 2011)).
Matters related to the workings of a police department frequently have been
held to be matters of public concern. , , 339 F.3d
43, 52 (1st Cir. 2003) (“The diligence and lawfulness of a police department's activities
are matters of great interest to the public.”); , 241 F. Supp.
2d 78, 91 (D. Mass. 2003), , 404 F.3d 504 (1st Cir. 2005); (“[S]tatements
comprising evidence of possible corruption or exposing possible corruption within a
police department are precisely the type of communications that demand strong First
Amendment protection.”); , 167 F. Supp. 2d 482, 486
(D.R.I. 2001) (holding that “many police department policies, procedures, and rules
affect, or have the potential to affect, the public health and safety and may qualify as
‘matters of public concern’”); , 566 F.3d 817, 822 (9th Cir.
2009) (“As a matter of law, ‘the competency of the police force is surely a matter of
great public concern.’”). On the other hand, matters related to police departments
that could also be said of any place of employment, such as “individual personal

complaints about working conditions,” are not matters of public concern.
, 163 F. 3d 7, 12 (1st Cir. 1998).
Here, #520.02(A) reaches matters of public concern. The sweeping policy
language— “police related matters”—encompasses far more than matters of
unprotected speech and would preclude employees from speaking without permission
on any issue relating to the Department. This effectively bars comment on matters
of public health and safety by those with the most knowledge.

, 26 F. Supp. 2d 350, 356 (D.R.I. 1998).
(holding that matters affecting “public health and safety are clearly matters of public
concern”). “Such an all-encompassing ban necessarily works to deprive Police
Department employees of their First Amendment right, as citizens, to comment on
matters of public [concern], thereby depriving the public of information regarding
matters relevant to public health and safety.” , 167 F. Supp. 2d at 487.

Having determined that #520.02(A) impacts speech on matters of public
concern, the Court must next consider whether the plaintiff (and the public’s) First
Amendment interest is outweighed by the government’s interest in “preventing
unnecessary disruptions and carrying out its public service mission.” ,
339 F.3d at 52. As noted, the government must meet a heightened burden to justify
a prior restraint on speech as distinguished from an isolated disciplinary action.
, 513 U.S. at 468. Specifically, “when the Government defends a regulation on
speech as a means to ... prevent anticipated harms, it ... must demonstrate that the
recited harms are real, not merely conjectural, and that the regulation will in fact

alleviate these harms in a direct and material way.” at 475.
Here, the defendants point the Court to an evaluation of their interests in the
context of Detective Brady’s conduct. But the balancing test requires the
Court to go beyond the facts of this case and consider whether the defendants’ interest
in restricting its employees’ speech outweighs the interests of “present and future
employees in a broad range of present and future expression,” as well as their
interests of their “potential audiences.” 513 U.S. at 468; , 167 F.

Supp. 2d at 488.
The defendants have not shown how curtailing related to the police
department detracts from their goals of maintaining accuracy, control,
confidentiality, and efficiency in the conduct of officers. (ECF No. 17-1 at 26, 52).
Moreover, they have failed to show how this sweeping regulation—restricting speech
on any matter related to the police department—would prevent those (rather

conjectural) harms. In any event, the attainment of those government interests is
not effectuated by this “clumsy and overbroad restriction[] on all speech” related to
the police department. , 26 F. Supp. 2d at 356.
As such, the weighing of the First Amendment interests against the
defendants’ interests in functioning efficiently tilts strongly in favor of Detective
Brady.
CC. Johnston Police Department Policy #100.04(D)(1)(v)

JPD Policy #100.04(D)(1)(v), “Dissemination of Information,” provides in
relevant part as follows:
D. Prohibited Conduct

1. The following acts by a member or employee of the
Department are prohibited or restricted:

…

v) Dissemination of Information- An officer shall treat the
official business of the Department as confidential and
shall conform to the following guidelines:

(1) Information regarding official business shall be
disseminated only to those for whom it is intended, in
accordance with established departmental procedures.

(2) An officer shall not remove or copy official records,
reports or reproductions for a police installation except
in accordance with established departmental
procedures.

(3) An officer shall not divulge the identity of a person
giving confidential information except as authorized by
property authority in the performance of police duties.

(4) An officer shall not release to the press or news medical
information concerning departmental policy or the
evidential aspects of any criminal investigation without
prior approval of the Chief or Commanding Officer.
Consult with the Chief of Police when in doubt.

In contrast to #520.02(A), #100.04(D)(1)(v) is much more narrowly drawn. It
concerns only the “official business of the Department” and does not, unlike
#520.02(A), restrict speech “related” to the policy’s subject. That is, the prior restraint
of #100.04(D)(1)(v) applies only to the “official business” itself and not matters related
to that official business. The distinction lies in the difference between “citizen speech”
(which may be afforded First Amendment protection) and “employee speech” (which
generally is not). To be sure, “the mere fact that a citizen’s speech concerns

information acquired by virtue of his public employment does not transform that
speech into employee—rather than citizen—speech.” , 573 U.S. at 240.
However, some speech, such as that “the employer itself has commissioned or created”
is employee speech. , 547 U.S. at 421-22. Thus, when the speech itself “owes
its existence to a public employee’s professional responsibilities” restriction of such
speech “does not infringe any liberties the employee might have enjoyed as a private
citizen.”

With that backdrop, the Seventh Circuit, considering a police department
policy that restricted comment on “official agency business” interpreted that phrase
as follows:
The Policy covers only “official agency business,” a phrase containing
three separate components. First, the regulated information must be
“business,” rather than merely a topic of general interest. Of course, a
police department's business may be of public interest, but the term at
least removes anything tangentially “related to” the department from
its coverage. Second, the term “agency” suggests that the business must
be generated by or pertain to the [police department]. Third, and in our
view most importantly, the regulated information must be “official,”
which typically means either “[o]f or relating to an office or position of
trust or authority,” or “[a]uthorized or approved by a proper authority.”
1119 (8th ed. 2004). By requiring the regulated
speech to be “official,” the Policy properly restricts only speech grounded
in or owing its existence to the employees’ job duties.

, 574 F.3d 370, 383 (7th Cir. 2009).

Similarly, #100.04(D)(1)(v) refers only to “official business of the Department”
(not matters related to it), and therefore restricts only speech “grounded in or owing
its existence to the employee’s job duties.” It therefore does not restrict speech
otherwise protected by the First Amendment.

Furthermore, the JPD’s interest in restricting speech on official business
outweighs the employee and the public’s interest. Police officers do not have a First
Amendment right “to speak in an official capacity on behalf of the police department.”
, 321 F. Supp. 2d 173, 182 (D. Mass. 2004) (citing ,
801 F.2d 1182, 1184 (9th Cir. 1986)). Indeed, the designation of a department
spokesperson to speak on official business serves the “legitimate and substantial
objective” of avoiding public confusion. , 297 F3d 228, 239-

40 (3d Cir. 2002).
Policy #100.04(D)(1)(v) also restricts speech about ongoing investigations,
“medical information concerning departmental policy,” and confidential informants.
The department has a strong and legitimate interest in controlling the release of
information on specific enforcement efforts and ongoing investigations. ,
493 F. App’x at 141; , 868 F.3d at 865; , 795

F.3d 209, 216 (D.C. Cir. 2015) (“It cannot be gainsaid that [a police department] has
a weighty interest in preserving confidential information that, if released publicly,
could jeopardize the successful conclusion of a criminal investigation.”)
As such, Detective Brady’s facial challenge to #100.04(D)(1)(v) fails. It is on
his as-applied challenge to this policy, however, that he fares much better.
An as-applied challenge to an employer’s specific retaliatory action requires
consideration of the factors rather than the analysis. First, the
Court considers whether Detective Brady was “(1) speaking about a matter of public
concern and (2) speaking as a citizen.” , 598 F.3d 1, 5 (1st

Cir. 2010); , 610 F.3d 756, 765-66 (1st
Cir. 2010); , 524 F.3d 91, 100 (1st Cir. 2008). If the answer to
either of these questions is “no” then the plaintiff has no First Amendment cause of
action. , 598 F.3d at 5. Should the answer be “yes,” the plaintiff may sustain a
First Amendment claim unless the “government entity had an adequate justification
for treating the employee differently from any other member of the general public.”
, 573 U.S. at 237. “If the balance weighs in favor of the employee, it must then

be determined whether the protected speech was a ‘substantial or motivating factor
in the adverse action against the plaintiff.’” , 524 F.3d at 100 (internal
citation omitted). Finally, if “the employee demonstrates that the speech was a
substantial or motivating factor in the employer’s retaliatory action, the employer
may avoid liability by showing that it would have reached the same decision even
absent the protected conduct.” , 610 F.3d at 765-66.

11. Detective Brady Spoke as a Private Citizen.
Detective Brady’s statements to the were not made as part
of his official duties. Indeed, JPD Policy #520.02(A)(1) designates the Deputy Chief
as the Department’s Public Information Officer (“PIO”) to speak to the media. While
the Chief or Deputy Chief may designate as PIO certain other officers in leadership
positions, detectives, such as Officer Brady, are not on the list of acceptable designees.
Moreover, Officer Brady was off duty, at home, and getting out of the shower, when
he made his comments by telephone to the reporter, Ms. Tempera. It is clear,
therefore, that Detective Brady was speaking as a private citizen when he spoke to

the reporter for the on September 15, 2016.
22. Detective Brady Spoke on a Matter of Public Concern.
Unlike the analysis, where the Court considers the text of the policy
that is being challenged, the analysis requires the Court to consider the
employee’s speech itself. Whether restricted speech touches upon a matter of public
concern “must be determined by the content, form, and context of a given statement,
as revealed by the whole record.” , 461 U.S. 138, 147-48 (1983).

In general, “[e]xposing governmental inefficiency and misconduct is a matter
of considerable significance.” , 547 U.S. at 425. Possible corruption within a
police department and the lawfulness of its activities are matters of public concern.
, 339 F.3d at 52; ,241 F. Supp. 2d at 91, , 404
F.3d 504; , 167 F. Supp. 2d at 486 (D.R.I. 2001).
Here, the defendants attempt to paint Detective Brady’s comments to the

as merely a gripe about an internal personnel decision that he
disagreed with. But Detective Brady’s statements, while in the context of Officer
Catamero’s firing, revealed what he believed to be improper conduct in the JPD—
favoritism in issuing parking tickets and the “unwritten rule” of processing more
tickets through the municipal court than the state traffic tribunal. There is no First
Amendment requirement that Detective Brady make this revelation in a vacuum;
that is, without reference to other potentially unprotected matters. The Department
conduct he mentioned, which if true smacks of corruption, surely is a matter of public
concern. , 339 F.3d at 52; , 241 F. Supp. 2d at 91,

, 404 F.3d 504. Such revelations frequently come only from public employees
with inside knowledge. For this reason, the Supreme Court has noted that there “is
considerable value … in encouraging, rather than inhibiting, speech by public
employees.” , 573 U.S. at 235-36.
33. The Interests Weigh in Detective Brady’s Favor.

In weighing the employee’s and the public’s First Amendment interest against
the government’s interest in an efficient workplace, a court must consider “whether
the statement impairs discipline by superiors or harmony among co-workers, has a
detrimental impact on close working relationships for which personal loyalty and
confidence are necessary, or impedes the performance of the speaker’s duties or
interferes with the regular operation of the enterprise.” , 483
U.S. 378, 388 (1987).
The defendants have asserted that Detective Brady’s comments impeded the

JPD’s operations and adversely affected: (1) discipline by Chief of Police and the
higher-ranking officers; (2) harmony among co-workers; (3) working relationships in
the Department; (4) operations and efficiency of the Department; and (5) the
plaintiff’s own duties as a detective with the subsequent internal investigation. (ECF
No. 19 at 23, 42-43.)
Indeed, “maintaining discipline and harmony in the workplace is a valid
governmental interest.” , 524 F.3d at 104-05 (quoting , 483 U.S. at
388). But to succeed in demonstrating its interest, the government must
demonstrate, through evidence, “harm or increased risks”; “actual disruption” or, at

the very least, the speech’s potential to disrupt; or “internal conflict” that this
was in fact caused by the employee’s speech. ; , 339 F.3d at 54;
, 994 F.3d 905, 916 (1st Cir. 1993).
Here, the defendants have presented no evidence from which a jury could find
that such harms existed. It cannot therefore be held that the defendants’ interest in
disciplining Detective Brady’s speech outweighed his right to speak and the public’s
interest in hearing it.

44. Detective Brady’s Comments Were the Direct Cause of the Discipline
Imposed.

There is no dispute that Detective Brady’s comments to the
were a “substantial or motivating factor in the adverse action against” him.
, 524 F.3d at 100. Moreover, the defendants do not attempt to argue that
they “would have reached the same decision even absent the protected conduct.”
, 610 F.3d at 765-66. Detective Brady therefore prevails on this
factor as a matter of law.
D. Additional JPD Policies

Detective Brady challenges two other JPD policies upon which his discipline
was imposed. First, he asserts that the “Conduct Unbecoming Policy” is an
impermissible prior restraint with unlimited discretion and with no time limit for the
Chief of Police to grant or deny permission to speak. Second, he argues that the
“Internal Investigations Policy,” as applied to him, was violative of his First
Amendment rights.
11. The Conduct Unbecoming Policy

The Conduct Unbecoming Policy, #100.04(D)(1)(b), provides as follows:

D. Prohibited Conduct

1. The following acts by a member or employee of the
Department are prohibited or restricted:

b) Conduct Unbecoming an Officer- Conduct unbecoming an
officer shall include that which brings the Department into
disrepute or reflects discredit upon the officer as a member of
the Department, or that which impairs the operation or
efficiency of the Department or officer.

The Court does not find that the Conduct Unbecoming Policy is a prior
restraint as nothing on its face is specific to speech. It instead serves as a catchall
disciplinary policy, which, in this instance, was used in response to Detective Brady’s
comments to the .
Detective Brady secondarily asserts that the Conduct Unbecoming Policy is
unconstitutionally vague. The vagueness doctrine “is a basic principle of due process
that an enactment is void for vagueness if its prohibitions are not clearly defined.”
, 408 U.S. 104, 108 (1972);
, 468 U.S. 609, 629 (1984). Generally, regulatory policies must give a
“person of ordinary intelligence a reasonable opportunity to know what is prohibited,
so that he [or she] may act accordingly.” , 408 U.S. at 108.
The First Circuit has generally foreclosed facial vagueness challenges to
catchall disciplinary policies in the wake of , 416 U.S. 134 (1974).
, 761 F.2d 827, 838 (1st Cir. 1985); , 500
F.2d 1110, 1116 (1st Cir. 1974); , 100 F. Supp. 2d
78, 86 (D. Mass. 2000). In , the Supreme Court “stressed the impracticability

of formulating an exhaustive list of actionable conduct, and the correlative need for a
general removal provision.” , 761 F.2d at 838.
Again, however, as applied to the situation at bar, Detective Brady is correct
in his interpretation of this catchall policy. He could not reasonably expect that
comments on a matter of public concern, spoken as a private citizen, as is his First
Amendment right, could subject him to discipline for conduct unbecoming an officer.
To hold otherwise would have the effect of chilling otherwise constitutionally

protected speech. , 521 U.S. 844, 872 (1997).
This case is distinguishable from , where the court
found that the plaintiff, an experienced officer, would know that his conduct fell
within the purview of a similar conduct unbecoming policy. 100 F. Supp. 2d at 86.
There, the officer disclosed a confidential internal affairs report to a news reporter.
at 81. Here, Detective Brady did not disclose official business but rather informed

the public about an “unwritten rule” regarding potentially improper practices at the
JPD.
22. The Internal Investigations Policy

The Internal Investigations Policy, #520.02(E)(1), provides as follows:

E. Internal Investigations

1. No member of the Johnston Police Department will discuss
any ongoing internal investigation with the press/media. Any
and all inquiries relating to internal investigations or crisis
situations within the Department and the status of such will
be referred to the Chief of Police.

The discipline imposed under this policy provision arises from Detective
Brady’s informing Ms. Tempera that there was an internal investigation of his
conduct after he had spoken to her for her first article about Officer Catamero’s
lawsuit. (ECF No. 1-8.) This second conversation resulted in her article titled
“Johnston Police Union President Investigated for Speaking to Journal Reporter.”
The imposition of discipline under the Internal Investigations Policy violated
Detective Brady’s First Amendment free speech rights. As the Court has determined
that Detective Brady’s comments to Ms. Tempera regarding the circumstances
surrounding Officer Catamero’s firing were protected speech, the investigation (and
subsequent punishment) for those comments was unconstitutional. It follows, then,
that Detective Brady’s statements to Ms. Tempera about this constitutional violation
were a matter of public concern and the interest in providing this information to the
public outweighed the JPD’s interest. Furthermore, in this case the officer was
discussing an internal affairs investigation into his own conduct. The JPD’s interest

in confidentiality is therefore less of a concern than in a case where the speaker is
giving confidential information about another officer.
EE. Chief Tamburini’s Qualified Immunity
Chief Tamburini asserts that he should be afforded qualified immunity from
liability in his personal capacity and moves for summary judgment on that issue.
Under the doctrine of qualified immunity, courts are not authorized to award
damages against a government official in his or her personal capacity unless “the
official violated a statutory or constitutional right,” and “the right was ‘clearly
established’ at the time of the alleged conduct.” , 573 U.S. at 243 (quoting

, 563 U.S. 731, 734 (2011)); , 652 F.3d
45, 50 (1st Cir. 2011).
As described above, the discipline Chief Tamburini imposed upon Detective
Brady violated his First Amendment right to speak as a citizen on a matter of public
concern. The question here is, therefore, did the discipline involve a right that was
clearly established at the time of the imposition of the discipline. The second prong,
whether the right was “clearly established,” has two subparts: “(1) the clarity of the

law at the time of the alleged civil rights violation and (2) whether given the facts of
the particular case a reasonable defendant would have understood that his conduct
violated the plaintiffs’ constitutional rights.” , 652 F.
Supp. 2d 203, 211 (D.R.I. 2009), , 640 F.3d 388 (1st Cir. 2011).
The general right of an employee to speak on matters of public concern without
retaliation was “clearly established” before 2016, the time of Detective Brady’s

punishment. , 404 F.3d 504, 509 (1st Cir. 2005)
(holding that this right was “clearly established prior to 1994”). “But qualified
immunity requires that the general right be placed in a reasonably specific context.”
That is, the Court must “analyze whether the law is clearly established ‘in light
of the specific context of the case, not as a broad general proposition.’” ,
773 F.3d 361, 368 (1st Cir. 2014); , 568 F.3d 263, 269 (1st Cir.
2009). As the First Circuit has held:
To be clearly established, the contours of this right must have been
“sufficiently definite that any reasonable official in the defendant’s shoes would
have understood that he was violating it.” “In other words, ‘existing precedent
must have placed the … constitutional question beyond debate.’”

, 773 F.3d at 368 (internal citations omitted).

In the context of this case, the relevant question is whether Detective Brady
had a clearly established right to speak to a reporter, outside of his official duties,
about potential corruption in the JPD as a factor in another officer’s firing at the time
discipline was imposed upon him. The Court finds, from existing precedent, that this
right was sufficiently definite. As noted, an officer’s speech, as a citizen, about police
department corruption is a public concern that outweighs countervailing government
interests. , 339 F.3d at 52 (“The diligence and lawfulness of a police
department's activities are matters of great interest to the public.”); , 241 F.
Supp. 2d at 91 (D. Mass. 2003), , 404 F.3d 504 (1st Cir. 2005);
(“[S]tatements comprising evidence of possible corruption or exposing possible
corruption within a police department are precisely the type of communications that
demand strong First Amendment protection.”).
Chief Tamburini’s action in disciplining Detective Brady is different from the
facts of , where the police chief was entitled to qualified immunity because a
reasonable superior officer could believe the plaintiff’s speech, which included the
disclosure of confidential materials and included unprotected and antagonistic
speech, required discipline. 404 F.3d at 509. In contrast, Detective Brady did not
disclose confidential information or interfere with an ongoing investigation. Chief
Tamburini observed that Detective Brady made comments about potential corruption
in the police department and for that punished him. This was an unconstitutional
effort to stifle protected speech that any reasonable superior officer should have
understood violated First Amendment rights.
Chief Tamburini therefore is not entitled to qualified immunity in this context.
IV. CONCLUSION
Based upon the foregoing, the Court determines that JPD Policy #520.02(A),
“Public information/Media Relations,” is an impermissible prior restraint on speech
and that Policies #520.02(E)(1) “Internal Investigations,” #100.04(D)(1)(b) “Conduct
Unbecoming an Officer,” and #100.04(D)(1)(v) “Dissemination of Information,” were
unconstitutionally applied to Detective Brady. In addition, the applicable law and
record evidence demonstrates that Chief Tamburini is not entitled to qualified
immunity.
As such, the Court GRANTS Detective Brady’s Motion for Summary Judgment
on the issue of liability (ECF No. 18) and DENIES the defendants’ Motion for
Summary Judgment (ECF No. 17).

IT ISSO ORDERED,
We J M' tog —
Mary 8S. McElroy
United States District Judge
February 9, 2021

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10421529. Public record. Not legal advice.