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McGunigle v. City of Quincy

United States Court of Appeals, First Circuit

August 31, 2016

JOSEPH MCGUNIGLE, Plaintiff, Appellant,
v.
CITY OF QUINCY; PAUL KEENAN; JOHN DOUGAN, Defendants, Appellees.

         APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. F. Dennis Saylor, IV, U.S. District Judge]

          Brian Rogal, with whom Rogal & Donnellan, P.C. was on brief, for appellant.

          John R. Hitt, with whom Cosgrove, Eisenberg and Kiley, P.C. was on brief, for City of Quincy, and individual appellees, in their official capacities.

          Geoffery P. Wermuth, with whom Murphy, Hesse, Toomey & Lehane LLP was on brief, for individual appellees in their individual capacities.

          Before Thompson, Selya, and Kayatta, Circuit Judges.

          THOMPSON, CIRCUIT JUDGE.

         Plaintiff-appellant 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.

         I. BACKGROUND

         As 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).

         A. The Long Road to Here

         This 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.

         B. McGunigle's Dog Ordinance Crusade

         In the 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.

         In 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.

         Apparently 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.

         Frustrated 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.

         McGunigle's 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.

         In 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."

         By 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."

         A 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 wrong."[1]

         In the 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.

         C. End of the Line: Traffic Cones and Witness Intimidation

         Three 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.[2] 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] arrested!"

         Webber, 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 ...


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