Meaney v. Dever

United States Court of Appeals
For the First Circuit

No. 02-1783

PAUL J. MEANEY; CHERYL A. MEANEY,

Plaintiffs, Appellees,

v.

ROBERT M. DEVER, INDIVIDUALLY AND IN HIS CAPACITY AS
MAYOR OF WOBURN; PHILIP MAHONEY, INDIVIDUALLY AND IN HIS
CAPACITY AS CHIEF OF POLICE FOR THE CITY OF WOBURN

Defendants, Appellants,

CITY OF WOBURN,

Defendant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nancy Gertner, U.S. District Judge]

Before

Selya, Circuit Judge,
Farris,* Senior Circuit Judge,
and Howard, Circuit Judge.

Thomas Frisardi with whom Peabody & Arnold was on the brief
for appellants.
Richard P. Mazzocca with whom Finneran, Byrne & Drechsler
was on the brief for appellees.
 April 22, 2003

*Of the Ninth Circuit, sitting by designation.
 HOWARD, Circuit Judge. This appeal requires us to decide

whether Woburn, Massachusetts, police officer Paul J. Meaney was

lawfully disciplined for repeatedly blasting a borrowed truck's air

horn after or near the conclusion of a union picket and during a

municipal inauguration ceremony. Acting on cross-motions for

summary judgment, the district court ruled that Meaney's conduct

was within his free speech rights, and that Robert Dever (Woburn's

Mayor) and Philip Mahoney (Woburn's Chief of Police) violated

clearly established First Amendment law in suspending him. Dever

and Mahoney challenge both rulings, arguing that the court should

have entered summary judgment for them or set the matter for trial.

We believe that Dever and Mahoney were entitled to summary judgment

and accordingly reverse.

I. Background

On January 5, 1998, Meaney participated in an

informational picket organized and sponsored by the Woburn Police

Patrolmen's Union Local 313 and the Woburn Firefighter's Union. He

was off duty at the time. The unions held the picket outside the

Woburn City Hall and timed it to coincide with the arrival of

persons who would be attending the inauguration of Mayor Dever.

The unions hoped to bring attention to the fact that their members

had been working without a collective bargaining agreement for the

previous four years. Dever was angered by the picket, telling a

demonstrating firefighter upon his arrival at City Hall: "Well, if

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this is the way you want it to be, that's the way it's going to

be."

The picketers, who numbered between 80 and 125,

demonstrated from around 7:00 p.m. until around 8:00 p.m., which is

when the inauguration ceremony was scheduled to begin. During the

demonstration, a number of persons in passing trucks and vehicles

honked their horns in support of the unions. Several off-duty

police officers and firefighters drove their vehicles around the

adjacent common and blew their horns as well. The hornblowing was

steady throughout the picket.

As the picket wound down, the demonstrators gathered on

the steps of City Hall for a group photograph. Afterwards, the

group marched around the common and most of the picketers departed.

Meaney, however, headed to a nearby fuel oil business owned by his

father-in-law and borrowed an oil truck. Within minutes, Meaney

returned to City Hall. He made three passes around City Hall,

pausing beneath the windows of the room in which the inauguration

had begun. All the while, he sounded the truck's loud air horn.

A handful of picketers were still in the vicinity of City Hall as

Meaney made his rounds, and more than one cheered him on. Meaney's

hornblowing was described as sufficiently loud to be heard by the

ceremony's attendees, but not loud enough to "disrupt" it. Chief

Mahoney and five other officers personally observed Meaney driving

the fuel truck and blowing its air horn.

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 On January 6, 1998, a perturbed Mayor Dever asked Chief

Mahoney for a report on the previous evening's "noisemaking."

Mahoney responded with a written memorandum detailing the events

just described. The memorandum was signed by himself and the five

other officers who had observed Meaney's conduct. That same day,

Dever removed Meaney's father-in-law's business from the list of

businesses with which the City contracted to perform snow-plowing

services. When Meaney learned that Dever had removed his father-

in-law's business from the snow-plowing list, he telephoned Mahoney

to protest. During the conversation, Mahoney told Meaney that his

conduct the night before was outrageous and ridiculous, and opined

that Meaney had intended to interrupt the inauguration ceremony.

Meaney agreed with this characterization of his intent, explaining

that he wanted to "piss off" Dever because Dever held a grudge

against him and his family and had once unreasonably denied him a

thirty-day leave of absence from the police force. Mahoney replied

that Meaney's conduct had occurred after almost everybody had left

and that it was unprofessional. Meaney responded that his

hornblowing was "protected" because he had "act[ed] as a union

member."

In the two weeks that followed, at least two local

newspaper articles about the hornblowing incident were published.

The first described what had happened and noted that Mayor Dever

had ordered that the matter be investigated; the second detailed

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Dever's removal of Meaney's father-in-law's business from the snow-

plowing list. Each article contained quotes from Dever in which he

acknowledged that the picket was perfectly lawful but considered

the blowing of the air horn to be illegal because it was an attempt

to disrupt a public meeting. In one of the articles, Meaney was

quoted as saying, "My intent was to get under the mayor's skin and

voice our opinions. If he didn't like it, that's tough."

By letter dated January 21, 1998, Chief Mahoney suspended

Meaney without pay for two days for his actions on January 5, 1998,

and for insubordination during the January 6, 1998 telephone

conversation. The letter explained that, in Mahoney's view, Meaney

had failed in his professional responsibilities by contributing to

a disturbance of the public peace1 for "personal reasons."

Meaney appealed his suspension to Mayor Dever, who

appointed the city solicitor to conduct a public hearing on the

matter. See Mass. Gen. Laws ch. 31, § 41. The hearing, at which

Chief Mahoney and Meaney testified, was held on January 29, 1998.

At the hearing, Mahoney explained that "the crux of the suspension

was the statements [made by Meaney during the January 6, 1998

telephone conversation] he gave me that he did it on purpose. He

wanted to interrupt the inauguration and piss off the mayor, which

I thought was not conduct becoming of a police officer on duty or

1
Woburn officers are considered "on duty" at all times for
purposes of preserving and protecting the public peace.

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off duty." Mahoney also reiterated that Meaney had explained his

hornblowing as occasioned by animosity between Dever and Meaney's

family and Dever's denial of his request for a 30-day leave of

absence. For his part, Meaney testified that, in response to Chief

Mahoney's suggestion during the January 6, 1998 telephone call that

Meaney's intent was to "piss off" Mayor Dever, he had replied, "You

are goddamn right. In my opinion that was the underlying intention

of both unions and if that's what happened to the mayor . . . well,

that's too bad."

After the hearing, the city solicitor issued written

findings and an opinion stating that, in his view, there was just

cause warranting Meaney's suspension. In support of this

determination, the city solicitor found, in substance, that Meaney

had not specified the message he sought to convey by blowing the

air horn, and that the blowing of the air horn was prompted by both

a desire to "piss off" Mayor Dever because of personal animosity

between the two and to support the unions in their perceived desire

to do the same.

Acting on the basis of the city solicitor's

recommendation, Mayor Dever upheld Meaney's suspension. But the

Massachusetts Civil Service Commission, by written decision issued

November 16, 1998, overturned the suspension. The Commission held

that Mayor Dever had failed to prove that there was just cause to

suspend Meaney. In so doing, the Commission stated that Meaney

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"clearly" had not disturbed the public peace because nobody called

the police to complain about the hornblowing, no police officer

attempted to stop it, and no arrest was made. The Commission also

opined that Meaney's hornblowing was part and parcel of "his

lawful, constitutionally protected right as a union member to

picket in a peaceful manner."

On July 16, 1999, Meaney and his wife brought a damages

action against Mayor Dever, Chief Mahoney, and the City of Woburn.

The complaint invoked 42 U.S.C. § 1983 and alleged that the

defendants had violated Meaney's free speech rights and otherwise

committed a number of state law torts. Following discovery, the

parties filed cross-motions for summary judgment. The district

court granted the City summary judgment on all claims against it

and Mayor Dever and Chief Mahoney summary judgment on the Meaneys'

state law claims. But the court granted Meaney summary judgment on

his free speech claim against Mayor Dever and Chief Mahoney and,

after rejecting their qualified immunity arguments, entered a $7500

judgment against them. Mayor Dever and Chief Mahoney appeal this

judgment.

II. Discussion

Mayor Dever and Chief Mahoney take issue with multiple

aspects of the district court's First Amendment ruling, but our

agreement with their threshold argument permits us to limit our

focus. Because of the likelihood that government agencies would be

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unduly hampered in performing public services if permitted to

regulate their employees' speech only in the same manner and to the

same extent as the government qua sovereign, see Waters v.

Churchill, 511 U.S. 661, 671-75 (1994) (plurality opinion); see

also id. at 694-95 (Stevens, J., dissenting) (recognizing that

"unduly disruptive" speech by a public employee can constitute

grounds for discipline or dismissal), a public employee disciplined

for speech or expressive conduct has a viable retaliation claim

under the First Amendment only if the speech or conduct related to

"a matter of public concern." Connick v. Myers, 461 U.S. 138, 146

(1983) (elaborating upon Pickering v. Board of Education, 391 U.S.

563 (1968)). Applying traditional summary judgment principles, the

district court determined that Meaney's hornblowing was expressive

conduct related to a matter of public concern within the meaning of

cases such as Pickering and Connick because it was intended "to show

support for [his] fellow union brothers . . . in connection with the

unions' concerted activities." Meaney v. Dever, 170 F. Supp. 2d 46,

55 (D. Mass. 2001) (internal quotation marks omitted).2 Appellants

2
In dicta, the district court questioned whether the
Pickering/Connick paradigm should apply at all because Meaney was
off duty and sounded the air horn "as a union member" and "as part
of a union protest." Meaney, 170 F. Supp. 2d at 55. Our
subsequent discussion will explain why we think the court
misapplied governing law in concluding that the hornblowing was an
echo of one or more particularized messages directly pertaining to
the collective bargaining impasse and communicated by the unions
during the demonstration. That leaves only the fact that Meaney
was off duty at the time he blew the air horn to support the
court's dicta. But the applicability of the Pickering/Connick test

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say that this ruling was erroneous. We agree.

As an initial matter, we think it a close question whether

Meaney's hornblowing had sufficient communicative elements to

constitute expressive conduct protected by the First Amendment. In

evaluating whether allegedly expressive conduct brings the First

Amendment into play, the Supreme Court has focused on the context

in which the conduct took place, asking "whether [a]n intent to

convey a particularized message was present, and [whether] the

likelihood was great that the message would be understood by those

who [perceived] it." Texas v. Johnson, 491 U.S. 397, 404 (1989)

(internal quotation marks omitted) (quoting Spence v. Washington,

418 U.S. 405, 409-11 (1974)). In explaining his hornblowing during

the course of the investigation, Meaney consistently emphasized its

intended effect: an irritated Mayor Dever. He had little to say

about the message he intended the Mayor (and perhaps others) to take

from his conduct. Nonetheless, the summary judgment record at least

arguably permits us to infer that Meaney intended his hornblowing

to communicate three particularized ideas: (1) that he was angry

about the alleged grudge Dever held against his family, (2) that he

was angry that Dever had denied his request for a leave of absence,

and (3) that he supported the unions in what he perceived to be

turns not on whether the speech or expressive conduct in question
occurred during working hours, but on whether it was a legitimate
object of employer regulation. See Pickering, 391 U.S. at 568-75
(implicitly recognizing that off-duty conduct can be the legitimate
object of regulation by a public employer).

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their desire to get under the Mayor's skin.

It is even more of a stretch to say that there was a

"great likelihood" that those in attendance at the inauguration

ceremony -- even those who had taken note of the picket -- would

have comprehended the link Meaney has identified between his

hornblowing and the union protest.3 Blasting an air horn may be

qualitatively different from more readily understood expressive

conduct of inherent First Amendment significance, such as picketing,

boycotting, canvassing, and distributing pamphlets. Blowing an air

horn is not an expressive act a fortiori, and thus does not

implicate the First Amendment unless context establishes it as such.

See id. at 404-06; see also Laurence H. Tribe, American

Constitutional Law, § 12-7 (2d ed. 1988). In our view, it is

doubtful that the context of Meaney's hornblowing made it likely

that those to whom it was directed took from it the specific

"message of solidarity" that Meaney has since identified.

In any event, appellants did not argue to the district

court that Meaney's hornblowing lacked sufficient communicative

elements to implicate the First Amendment, and a more

straightforward basis on which to decide this appeal is readily

3
We confine our analysis to the third of the three
translations that Meaney has offered because there is no reason to
think that anyone present at the inauguration ceremony, even Mayor
Dever, would have understood that the blowing of a loud air horn
outside City Hall by an unknown person was an expression of anger
over a family feud or the denial of a request for a leave of
absence.

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available. Despite the misgivings we have just expressed, we shall

assume arguendo that Meaney's hornblowing constituted expressive

conduct. Even so, we cannot agree with the district court's

conclusion that it related to a matter of public concern. See

Hennessy v. City of Melrose, 194 F.3d 237, 246 (1st Cir. 1999)

(determination whether expressive conduct relates to a matter of

public concern is a legal question when there is no genuine dispute

over the underlying facts).

As noted above, the district court applied traditional

summary judgment principles in determining, as a matter of law, that

Meaney's hornblowing was intended to express solidarity with his

union brothers in connection with their concerted activities. See

Meaney, 170 F. Supp. 2d at 55. We frankly have some difficulty with

the court's decision to frame the intent issue at this degree of

generality and to take it from the jury under Fed. R. Civ. P. 56,

given that the hornblowing occurred after the picket had all but

concluded, was admittedly motivated (at least in part) by personal

animosity, and was linked to the union demonstration by Meaney only

to the limited extent described above -- as conduct supporting the

union in its perceived efforts to irritate the Mayor. But in the

end, our disagreement with the court's application of Rule 56 is

beside the point. The court should not have employed traditional

summary judgment principles to determine Meaney's intent.

Under Waters, a court deciding whether a government

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employee's speech was on a matter of public concern must defer to

the employer's view of the underlying historical facts so long as

that view is facially reasonable and drawn in good faith. See 511

U.S. at 677 (plurality opinion);4 see also Kearney v. Town of

Wareham, 316 F.3d 18, 24-25 & n.6 (1st Cir. 2002) (explicating

Waters and explaining that this principle, although derived from a

plurality opinion, was agreed to by a majority of the Court). Here,

following an investigation and hearing, the integrity of which we

have no reason to question,5 the City's decisionmakers concluded (in

substance) that Meaney's hornblowing (1) was prompted by an intent

to irritate fueled by personal dislike for Mayor Dever, (2) occurred

after the picketing had for all intents and purposes ended, and (3)

related to the picketing only insofar as both (in Meaney's view)

4
At oral argument, Meaney suggested that appellants did not
sufficiently develop a Waters argument in the district court. But
our review of the summary judgment papers leads us to conclude that
appellants' Waters argument was preserved.
5
Meaney has implied that we should disregard the results of
the investigation and hearing, and accept the conclusions of the
Massachusetts Civil Service Commission, because the investigation
and hearing were ordered and conducted by persons whose
impartiality on the matter under investigation was subject to
challenge. But the law does not require a narrow focus on the
question of impartiality vel non; it requires reasonable procedures
and conclusions. Cf. Kearney, 316 F.3d at 25-26 (collecting cases
which in similar contexts reject the proposition that a retaliation
claim can be grounded solely on proof of animosity towards the
plaintiff on the part of the decisionmaker). Moreover, the
Commission's reversal of the suspension order does not in and of
itself indicate that those conducting the investigation and hearing
acted in bad faith. See id. at 25. In all events, the record
contains no evidence that the hearing officer -- the city solicitor
-- was other than impartial.

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were intended to anger the Mayor. These conclusions, which were

based on Meaney's own consistent explanations for his conduct, have

strong evidentiary support and easily pass the Waters test.

With this factual predicate established, our determination

that Meaney's hornblowing did not relate to a matter of public

concern readily follows. Ordinarily, conduct intended to express

anger at a supervisor towards whom one bears personal animosity

because of family history and/or a prior personnel decision does not

relate to a matter of public concern. See Connick, 461 U.S. at 147

("[W]hen a public employee speaks not as a citizen upon matters of

public concern, but instead as an employee upon matters only of

personal interest, absent the most unusual circumstances, a federal

court is not the appropriate forum in which to review the wisdom of

a personnel decision taken by a public agency allegedly in reaction

to the employee's behavior."). So too, we think, with conduct

intended to express solidarity with another's perceived intent to

provoke -- regardless whether the other's animus might be thought

to arise from frustration over a matter of public concern. Such

conduct itself is not calculated to provide members of society with

information necessary to make informed decisions about government

operations, to disclose public misconduct, or to inspire public

debate on a matter of significant public interest. See O'Connor v.

Steeves, 994 F.2d 905, 913 (1st Cir. 1993) (collecting cases and

describing the types of speech and expressive conduct that relate

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to matters of public concern). It is thus subject to regulation in

the public employment context without court oversight. See Connick,

461 U.S. at 146.

III. Conclusion

We understand the district court's desire to create a

broad sphere of immunity for speech and expressive conduct arising

out of, or relating to, an emotional union picket. And we

appreciate the possibility that, in such a charged context, a thin-

skinned public employer might well be tempted to mete out pretextual

discipline in order to retaliate for protected speech or expressive

conduct. But the record in this case, even when viewed in the light

most favorably to Meaney, simply does not support an inference that

appellants' fact finding was a sham designed to disguise retaliation

against Meaney for his views, or for conduct designed to communicate

some particularized view, about the impasse over the collective

bargaining agreement. Rather, the record bears out appellants'

conclusion that any message inhering in Meaney's hornblowing did not

relate to a matter of public concern. Accordingly, we reverse the

judgment in favor of Meaney on his First Amendment claims and

remand with instructions that the court enter judgment for

appellants on those claims.

So ordered.

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