There Once Were Two Crimes In Nantucket

Over an impassioned dissent, the Massachusetts Appeals Court dismissed in the main claims that two residents of Nantucket were unconstitutionally silenced in raising concerns about the investigation of an unsolved hate crime and a hit-and-run at a town meeting

The plaintiffs brought this action after a contentious meeting of the select board of Nantucket (board) held on the two-year anniversary of an unsolved hate crime at the historic African Meeting House. The plaintiffs, James Barros and Rose Marie Samuels, are long-time residents of the town of Nantucket (town or Nantucket) and members of its Black community. In count one of their third amended complaint, the plaintiffs sought a declaration that during a board meeting held on March 11, 2020, the town manager, Elizabeth Gibson, who is white, and Nantucket police Chief William Pittman, who is also white (collectively, the defendants), abridged their rights to free speech secured under art. 16 of the Massachusetts Declaration of Rights, as amended by art. 77 of the Amendments to the Constitution. In count two, the plaintiffs alleged violations of the Massachusetts Civil Rights Act (MCRA), G. L. c. 12, §§ 11H & 11I, and sought damages and attorney’s fees.  At the conclusion of discovery the defendants moved for summary judgment on both counts; the plaintiffs opposed the motion.

Following a hearing, a Superior Court judge allowed the defendants’ motion; he later denied the plaintiffs’ motion for  reconsideration or in the alternative for relief from judgment.  We vacate the portions of the judgment and the order denying the motion for reconsideration related to Samuels’s MCRA claim against Gibson. The judgment and the order are otherwise affirmed.

The crimes

a. Hate crime. In March 2018, the African Meeting House, a national historic landmark and an important civic symbol for Nantucket’s Black community, was defaced with the spray-painted words, “NIGGER LeAVe!”See Appendix. The next day, Dylan Ponce confessed to Jeffrey Sayle, the brother-in-law of the town manager, Gibson, that “he had either hit the [n-word] church or he had tagged the [n-word]  church.” The following week Sayle retrieved and hid the spray 4 paint can used by Ponce. Although Ponce told Sayle that he acted alone, rumors circulated around town that Sayles’s son and Gibson’s son were also involved in the hate crime. The unsolved hate crime threatened and intimidated the plaintiffs and caused them to fear for their and their families’ safety and to question their safety in public places in the town.

b. Hit and run. In August 2018, Samuels’s twelve year old son was hit by a car in a crosswalk behind his school in broad daylight, thrown from his bicycle onto the hood of the vehicle, and fell to the ground. He suffered internal injuries. The driver stuck her head out of the window and said, “is he ok” before driving off. None of the witnesses to this hit and run called the police; Samuels learned about it from a social media post on Facebook. At the hospital, a police officer met with Samuels and promised to keep in touch. Despite Samuels’s numerous phone calls and visits to the police department, no officer followed up with her. This left her feeling “so broken . . . because I could have lost my son.”

The majority opinion describes the events following the crimes and the meeting that gave rise to the lawsuit in detail.

SMYTH, J. (dissenting).

On March 11, 2020, Nantucket residents Rose Marie Samuels and James Barros attended a select board (board) meeting, as they had done numerous times since someone defaced the African Meeting House with the words “NIGGER LeAVe.” Dissatisfied with the Nantucket police investigation of this crime, Samuels sought answers from town officials, including town manager Elizabeth Gibson, who supervised the police. On this date, Samuels had prepared a list of grievances to present to the board, town manager, and police chief, including her concern that the Nantucket police did not provide the same level of protection to Black residents as to the Island’s white residents. Yet, when Samuels attempted to fully convey her grievances, Gibson and Police Chief William Pittman, leaders of the all-white Nantucket power elite, attempted to suppress the content of Samuels’s speech by repeatedly interrupting her, ordering her to stop talking because of the content of her speech, treating her differently from white 2 speakers, and accusing her of conducting an “improper inquisition” at an “improper forum.”

Considering the record in the light most favorable to the plaintiffs, a rational jury could conclude that the defendants, motivated by self-preservation and their attempts to conceal the identities of the suspected perpetrators of the desecration of the African Meeting House, effectively deterred Samuels, and would have likewise deterred a person of reasonable fortitude, from freely exercising the right to speak on public issues as guaranteed by arts. 16 and 19 of the Massachusetts Declaration of Rights.

A rational jury could also conclude that Pittman sufficiently deterred Barros from exercising his rights under arts. 16 and 19, and the Massachusetts Civil Rights Act (MCRA), G. L. c. 12, §§ 11H & 11I, by publicly accusing Barros of acting as a noncooperative troublemaker who was spreading baseless rumors that divided the Island. Whether Pittman attempted to 3 coerce, or did in fact inhibit Barros from exercising his rights under arts. 16 and 19, are questions for a trier of fact.

This dissent stems from two fundamental points of disagreement with the court’s decision. First, we disagree on whether a rational jury could find that the defendants’ conduct, as reasonably perceived by the plaintiffs, sufficiently inhibited the plaintiffs’ rights so as to constitute abridgment under art. 16, and, for Barros, a violation of the MCRA. Second, we differ as to the extent the power dynamic that existed between the defendants and the plaintiffs due to their respective status on the Island magnified the defendants’ attempts to suppress the plaintiffs’ speech because of its content, and contributed to the plaintiffs’ inability to freely speak to a public issue at the March 11, 2020 board meeting.

I would vacate those portions of the judgment related to Samuels’s claims in their entirety, and vacate the judgment as it relates to Barros’s claims against Pittman, and remand the matter for trial.

Majority factual recitation

While I appreciate the court’s detailed background section, additional background facts are necessary to account for the disproportionate authority and influence that the defendants enjoyed over the plaintiffs. The defendants’ respective positions of authority are relevant to whether the defendants’ words and conduct inhibited the plaintiffs’ right to speak freely under arts. 16 and 19 and the MCRA.

Gibson first began working for the town of Nantucket in 1988, when she was twenty-two years old. She has held the position of town manager since 1995. As town manager, Gibson is a remarkably powerful and influential individual. She exercises direct supervision over almost every town department, including the police, fire, building, finance, health, marine and coastal 5 resources, public works, board of appeals, conservation commission, planning board, council on aging, counsel for human services, historic district commission, parks and recreation, and the shellfish and harbor advisory board. As town manager, Gibson maintains appointment and disciplinary (including discharge) powers over the department chiefs and their employees. Gibson is also in charge of negotiating town contracts, including employment contracts. In addition, Gibson’s duties included preparing and submitting all of the town’s “annual operating budgets and capital budgets.” As town manager, Gibson is not subject to general election, but instead is subject to reappointment by the board; Gibson had been reappointed for consecutive terms since 1995.

Gibson’s considerable authority and influence would likely be relevant factors to a jury’s assessment of the import of her words and conduct directed at the plaintiffs at the March 11, 2020 meeting.

Police chief 

Pittman was appointed chief of police in 2004. In June 6 2019, he told Gibson that her “family members” were involved in the defacement of the African Meeting House. Pittman explained at the board meeting on March 4, 2020, that the investigation had been turned over to the district attorney’s office and the State police because of the “implication that either members of this department or . . . influential people in this town may have been involved in the incident.” The record demonstrates that the “influential people” suspected of being involved in the defacement of the African Meeting House included, and may have been limited to, Gibson’s family members.

Plaintiffs

The record demonstrates that the plaintiffs inhabited a different stratum in the town altogether, as they maintained no apparent political, economic, social, public order, or law enforcement influence over town affairs.  Samuels, of Jamaican descent, became a full-time resident of Nantucket in 1999; she resides on Nantucket with her son. Samuels has worked in the home healthcare field when her health permits.

James Barros, seventy-six years old at the time of the March 11 meeting, worked as a part-time drywaller and plasterer. He has lived intermittently on Nantucket since he was eight years old. Barros, skeptical that the Nantucket police were committed to solving the African Meeting House crime, sought assurance that the police were dutifully investigating the matter by routinely contacting the police and also by inquiring as to the status of the investigation at board meetings. As Barros stated: “That building is part of me. I’m an African. I have a right to ask who is doing damage to my house.”

Dissent’s conclusion

Nearly one hundred and eighty years after Frederick Douglass sought refuge in Massachusetts and traveled to Nantucket to make his first public speech condemning slavery, a person desecrated a site sacred to the island’s Black community with the words “Nigger leave.” The act was more than an act of property vandalism, as it communicated a direct threat to the plaintiffs’ safety and well-being as Black residents of Nantucket. While the United States Constitution, Massachusetts Declaration of Rights, and our laws will never eradicate the hatred and racism in the hearts of individuals who commit such acts, our legal framework guarantees people the right to speak out against such offenses, to petition local officials for answers, and to criticize local government and police officials for failing in their oaths to support our laws and Constitution and to seek justice for all. Of course, it would be folly to take the force and endurance of these constitutional rights for granted, perhaps lulled by the longstanding welfare and security of our nation and by our courts’ historical commitment to safeguarding free speech rights as fundamental to our representative democracy. We do not have that luxury because, even considering the relative strength of our democracy, these rights are subject to the whim of unchecked power that allows for tyrannical tendencies to suppress contrary viewpoints. See, e.g., Whitney, 274 U.S. at 376 (Brandeis, J., concurring). Thus, the judiciary’s vigilance to protect from government interference our people’s right to speak to public issues is as critical today as it was when the First Amendment was ratified in 1791. See Bantam Books, Inc., 372 U.S. at 66 (“the freedoms of expression must be ringed about with adequate bulwarks”).

The plaintiffs in this case enjoyed a reasonable expectation that a jury could conclude that the defendants abridged their rights to speak freely on a public issue in violation of arts. 16 and 19, and the MRCA. In affirming all but one count of the judgment, this court “departs from its own best role as the guardian of individual liberty in the face of governmental overreaching.”

(Mike Frisch)