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Johnson v. Town of Duxbury

United States District Court, D. Massachusetts

October 23, 2018

Brian Johnson, Kelley O'Neil, Christopher Johnson, Minor Child, Plaintiffs,
Town of Duxbury, Matthew Clancy, Defendants.



         This suit, brought under 18 U.S.C. § 1983, arises out of a dispute in which retired Duxbury police officer Brian Johnson (“plaintiff” or “Johnson”) alleges that the Town of Duxbury (Massachusetts) and Chief of Police Matthew Clancy (“defendants”) violated plaintiff's federal and state rights under the Fourth Amendment to the United States Constitution and the Massachusetts Civil Rights Act, M.G.L. c. 12, §§ 11H, 11I. Plaintiff asserts that defendants violated his civil rights by ordering him to produce his personal phone records pursuant to an internal affairs (“IA”) investigation. Plaintiff brings this suit on behalf of himself and his family members whose phone records were produced as part of the IA investigation.

         I. Background

         Brian Johnson is a retired police officer of the Duxbury Police Department. Following his resignation in 2016, he brought a suit under § 1983 on behalf of himself and three family members, alleging that the Town of Duxbury (“the Town”) and its Chief of Police Matthew Clancy (“the Chief”) (collectively referred to as “defendants”) violated his civil rights under federal and state law.[1]

         In November, 2013, following an earlier IA finding of misconduct against plaintiff, he and his union signed an agreement with the Town, known as a Last Chance Agreement (“LCA” or “the Agreement”), whereby plaintiff was demoted and agreed that there was just cause to dismiss him from the Duxbury Police Department. The LCA further states that if Johnson engages in any future serious misconduct, the Chief of Police has just cause to dismiss him. Termination pursuant to the LCA was to be unreviewable under the grievance and arbitration procedures of the current collective bargaining agreement between the police union and the Town. The actions of the Town were, however, to remain reviewable on arbitrary, capricious or substantial evidence grounds.

         During the Fall of 2015, Johnson was contacted by a potential witness who claimed to have incriminating evidence with respect to an ongoing murder/robbery investigation in Marshfield, Massachusetts. Johnson disputes that he spoke to the witness but does not dispute that he failed to report to his commanding officer or to any other law enforcement agency that he received voicemail and text messages from the witness. Plaintiff thereafter was subpoenaed to testify before a grand jury regarding the murder investigation but again failed to report that fact to his superiors. Upon learning of Johnson's reticence, the Chief instructed his Deputy to open an investigation into the actions of Johnson and another officer. During this new IA investigation, plaintiff was represented by union counsel Kareem Morgan of the law firm Sandulli Grace, PC.

         In February, 2016, Chief Clancy issued an order for Johnson to produce phone records as part of the IA investigation. Attorney Morgan told the Chief that Johnson would comply with the order only if it were narrowed in scope to records “reasonably related and germane” to the investigation. The Chief delayed issuing the order and his retained counsel, Fernand Dupere (“Attorney Dupere”), negotiated with Attorney Alan Shapiro of the same Sandulli Grace law firm with respect to the scope of the phone records to be produced.[2] Shapiro agreed to produce redacted records of Johnson and another officer as part of the investigation. Chief Clancy issued the revised order for phone records with which plaintiff complied, albeit “under protest”. The phone records encompassed information relating to Johnson and members of his family but Johnson was the account subscriber for all relevant lines. In July, 2016, during the pendency of the investigation, Johnson retired from the Duxbury Police Department. Following his retirement, he filed this § 1983 suit.

         Pending before this Court is defendant's motion for summary judgment.

         II. Legal Analysis

         A. Legal Standard for Summary Judgment

         The role of summary judgment is to assess the proof in order to see whether there is a genuine need for trial. Mesnick v. Gen. Elec. Co., 950 F.2d 816, 822 (1st Cir. 1991). The burden is on the moving party to show, through the pleadings, discovery and affidavits, that there is “no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law”. Fed.R.Civ.P. 56(a). A fact is material if it “might affect the outcome of the suit under the governing law”. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A genuine issue of material fact exists where the evidence with respect to the material fact in dispute “is such that a reasonable jury could return a verdict for the nonmoving party”. Id.

         If the moving party has satisfied its burden, the burden shifts to the nonmoving party to set forth specific facts showing that there is a genuine, triable issue. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). The Court must view the entire record in the light most favorable to the nonmoving party and indulge all reasonable inferences in that party's favor. O'Connor v. Steeves, 994 F.2d 905, 907 (1st Cir. 1993). Summary judgment is appropriate if, after viewing the record in the nonmoving party's favor, the Court determines that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law. Celotex Corp., 477 U.S. at 322-23.

         B. Defendants' Motion for Summary Judgment

         1. Reasonable Search of Phone Records

         Plaintiff contends that defendants' search of his personal phone records violated his Fourth Amendment rights because defendants did not have probable cause for the search. Defendants respond that the standard of review with respect to a work-related investigation of an employee's personal phone records is one of reasonableness, not probable cause. Defendants aver that the search was, in fact, reasonable in inception and scope because the records were 1) specifically related to an IA investigation, 2) redacted and 3) limited to nine phone numbers, all of which were germane to the investigation.

         Public employer intrusions of the constitutionally protected privacy interest of government employees for legitimate investigations of work-related misconduct are analyzed under a standard of reasonableness, not probable cause. O'Connor v.Ortega, 480 U.S. 709, 725 (1987). The subject search must be reasonable in its inception and scope. Id. at 26. It is “justified” at inception when there are reasonable grounds to suspect that the search will reveal evidence that the employee has engaged in work-related misconduct. Id. Whether a search is reasonable ...

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