FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS [Hon. F. Dennis Saylor, IV, U.S. District
Rogal, with whom Rogal & Donnellan, P.C. was on brief,
R. Hitt, with whom Cosgrove, Eisenberg and Kiley, P.C. was on
brief, for City of Quincy, and individual appellees, in their
Geoffery P. Wermuth, with whom Murphy, Hesse, Toomey &
Lehane LLP was on brief, for individual appellees in their
Thompson, Selya, and Kayatta, Circuit Judges.
THOMPSON, CIRCUIT JUDGE.
Joseph McGunigle (McGunigle), a former Quincy police officer,
brought this action against the City of Quincy, Chief of
Police Paul Keenan (Chief Keenan), and Captain John Dougan
(Captain Dougan) (collectively, appellees), claiming, among
other things, that appellees retaliated against him for
protected speech in violation of his First Amendment rights.
The district court granted appellees' motion for summary
judgment. After careful consideration, we affirm.
required when reviewing an order granting summary judgment,
we summarize the facts in the light most favorable to the
non-moving party - here, McGunigle. Del
Valle-Santana v. Servicios Legales De P.R.
Inc., 804 F.3d 127, 128 (1st Cir. 2015).
The Long Road to Here
case has a long, circuitous history. It begins in 2006 with a
neighborhood disagreement about leash laws, and culminates a
decade later with alleged witness intimidation. Because this
history provides essential context for our decision, it is
necessary for us to go into some detail here. Bear with us.
McGunigle's Dog Ordinance Crusade
fall of 2006, McGunigle and his wife, Dianne McGunigle
(Dianne), bought a waterfront home in Quincy, Massachusetts.
Purchasing an oceanfront house had been a life- long dream of
the McGunigles. Unfortunately, after moving in, they began
witnessing multiple violations of Quincy's dog
ordinances. The ordinances require dog owners to keep their
dogs leashed and to clean up after them, but apparently were
not readily enforced on the beach across from their house.
McGunigle claims that his neighbors frequently "allowed
their dogs to roam the neighborhood" and to defecate on
the beach. Tensions between McGunigle and his neighbors over
the dog ordinances escalated, finally coming to a head in
early 2007 when an unleashed Great Dane attacked
McGunigle's dog, and an unleashed Golden Labrador
attacked his wife and "lunged" at a woman holding
her six-month-old child.
response to the later incident, a "dog hearing" was
held at the Quincy Police Department. As best we can tell,
this hearing was essentially a neighborhood mediation,
facilitated by Captain Dougan. McGunigle was allowed to
attend the hearing, but only if he changed out of his police
uniform since he was not representing the police department
at the hearing. He declined to change and did not attend. His
wife, Dianne, did go and testified, along with other members
of the community. At the conclusion of the hearing, the
Golden Labrador's owner agreed to keep her dog on an
expandable leash and to enroll him in dog training courses.
unhappy with the outcome of the hearing, McGunigle went to
Captain Dougan's office "shortly after" to
speak with him about the ordinance issue. McGunigle wanted to
show Captain Dougan a videotape that, he claimed, disproved
the testimony of some of his neighbors at the hearing as to
whether the Golden Labrador was let off its leash. Captain
Dougan declined to watch the video, and told McGunigle that
it was too late to present additional evidence because the
hearing was over. During this conversation, McGunigle was in
uniform and on duty.
by the continued lack of enforcement of the dog ordinances,
the McGunigles continued their campaign against what they
perceived to be a policy of non-enforcement. They reported
violations of the dog ordinances to Quincy Animal Control
Officer Don Conboy, and wrote numerous letters to the Mayor
of Quincy, various city councilors, and the press, expressing
their concerns. By May 2007, McGunigle had decided to take
matters into his own hands, and he began issuing citations
for violations of the dog ordinances to a number of his
neighbors. Most of the neighbors who received citations from
McGunigle had testified adversely to his wife at the hearing.
The citations were issued by McGunigle in his capacity as a
Quincy police officer.
neighbors complained to the then-Chief of the Quincy Police
Department, Robert Crowley. Chief Crowley ordered McGunigle
to stop writing dog-ordinance citations to his neighbors and
while off-duty. McGunigle initially complied with the order.
But about a month later, McGunigle started issuing citations
anew, which prompted his neighbors to again voice complaints
to police leadership about McGunigle's harassment. For
example, one neighbor, who received a citation after walking
her dog on private property, called Captain Dougan in tears
explaining "that she felt that Officer McGunigle was
using his authority to intimidate her." Another neighbor
claimed that she received a citation from McGunigle for
having her dog unleashed "but at the time the ticket was
written [she] was at work and [her] dog was home all
day." After receiving these complaints, Chief Crowley
suspended McGunigle for five days for insubordination for
violating his order to stop issuing citations.
support of McGunigle, the union challenged his suspension,
arguing that Chief Crowley's order was unlawful because
it ran afoul of McGunigle's oath to enforce city
ordinances. An arbitrator ultimately concluded that there was
not just cause to discipline McGunigle because the City of
Quincy failed to respond to the union's inquiry into the
lawfulness of the order. Accordingly, the arbitrator vacated
the suspension, finding that McGunigle could not be suspended
"for violation of an order whose lawfulness had not been
determined before [he] was suspended."
early September 2007, the press had picked up on the growing
controversy. On September 15, 2007, WHDH Channel 7 News aired
a television report about the dog ordinances, the lack of
enforcement, McGunigle's crusade, and his suspension.
During the broadcast, McGunigle was shown making the
following statement: "I'm just doing my job, you
know, trying to make the neighborhood safe and, uh, enforcing
some violations down there to make it cleaner." He later
added: "We're not quitting; we're just beginning
to fight." McGunigle was off-duty, in plain clothes, and
was standing in front of his house when he was interviewed.
But when the first statement aired, the screen caption read
"Officer Joseph McGunigle, Quincy Police Dept."
little over a week later, the Boston Globe ran a story on
McGunigle's dispute with his neighbors. Identifying
McGunigle as a Quincy police officer, the article reported
that McGunigle had "issued about 11 citations, with
fines of $50 to $100" to his neighbors, and credited
McGunigle with declaring that the dog ordinance violations
have been tolerated for years and that he "won't put
up with it." McGunigle was quoted as saying that he had
"paid $620, 000 for [his] oceanfront home" and that
he was "not letting dogs [defecate] on [his] yard."
(second alteration in original). The article also reported
allegations by McGunigle's neighbors that he was
harassing and intimidating them. One neighbor was quoted as
saying that he was issued a citation even though he did not
own a dog (his girlfriend did). The article noted that
McGunigle had "acknowledge[d] videotaping" his
neighbors, tearing down a neighbor's fence when he
realized it was on his property, and that he had previously
been suspended from the police force. But the article also
highlighted that McGunigle had defenders in the community,
who agreed that "the dog problem . . . had gotten out of
hand." The paper painted McGunigle as "unrepentant,
" crediting him with saying that "he was only
enforcing the law and has done nothing
wake of all this publicity, the Quincy Sun reported that the
Mayor of Quincy, William Phelan, had approached
McGunigle's wife, Dianne, and told her to
"drop" the dog-ordinance issue and to "let it
go." Nevertheless, Mayor Phelan later held a public
meeting to address the issue. The public meeting was attended
by 60 members of the community and several other public
officials. The upshot of this meeting is not set out in the
record. Nor does the record reflect the ultimate resolution
of the dog ordinance controversy. Nearly a year later, Chief
Crowley retired and, in July of 2008, Paul Keenan was
promoted to Chief of Police.
End of the Line: Traffic Cones and Witness
years after Chief Keenan was promoted, and four years after
the dog-ordinance controversy and publicity surrounding it,
McGunigle once again found himself in a dispute with a
neighbor, Michelle Webber. On July 30, 2011, McGunigle pulled up
in front of her house - in his police car and wearing his
uniform - and confiscated traffic cones from her driveway.
McGunigle believed that these traffic cones belonged to
National Grid and were stolen. In fact, the traffic cones
belonged to Webber and she had placed them there to stop
people from turning around in her driveway (she lives at the
end of a dead end street). When Webber tried to explain that
she owned the traffic cones, she claims McGunigle looked at
her in "an intimidating fit of rage" and told her
that he was taking the cones "before someone [got]
who had previously received citations from McGunigle during
the dog ordinance brouhaha, filed a citizen complaint
regarding the incident in which she claimed that
"McGunigle was coddling his gun" while talking to
her and that she "believe[d] that [her] life was in
danger." Webber added that she was "very concerned
for [her] well being, knowing that  McGunigle [was]
carrying a loaded weapon, " and that she had previously
witnessed "McGunigle's inability to control his ...