UPDATED 5/14/23 6:42: Judge Manitsas has ruled against Moss and in favor of Mayor Sarno. Full story here.

A judge is again considering whether Moss pleaded a free speech violation sufficiently. (WMP&I)

SPRINGFIELD—Lawyers for former mayoral aide Darryl Moss and Mayor Domenic Sarno squared off Tuesday over whether the former sufficiently pleaded a violation of his First Amendment rights. The hearing came some five months after the attorneys jousted over other claims, two of which a Hampden Superior Court judge ultimately dismissed with finality.

Aside from the free speech claim, Moss has four claims that are moving forward. His discrimination and negligence claims either never faced a procedural threat or survived earlier motions to dismiss. The push to save the First Amendment claim, however, may reflect a desire to maintain the symbolic weight that issue can carry.

The case arose after Sarno terminated Moss for urging another individual on Facebook to “grab the rifles,” referencing a TV show. The mayor cited city social media policy. The post was in response to Donald Trump’s defense of an individual who shot George Floyd protesters in Wisconsin. Moss originally filed a discrimination complaint with the state. However, he later withdrew it to file in Superior Court along with a handful of other claims.

In December, a judge dismissed his breach of contract and defamation claims. A First Amendment claim was also dismissed then. Yet, Moss could refile it under the appropriate statute. This revised claim was again subject to a motion to dismiss.

Only the attorneys for each side appeared Tuesday, which is common for hearing of this kind. They were first up during the afternoon Superior Court motion session. It took place in an awkwardly cozy, overly wood-paneled courtroom in the troubled courthouse the state renamed for former chief justice of the Supreme Judicial Court Roderick Ireland.

Patricia Rapinchuk, attorney for Sarno and the city, opened her remarks by noting that the parties had agreed to dismiss the First Amendment claim against the city. The Massachusetts Civil Rights Act (MCRA), under which Moss made his free speech claim, only covers natural persons like Sarno.

However, Rapinchuk argued Moss had not alleged the kind of interference with a constitutional right (free speech) that the statute envisions. Rather, his termination was a direct deprivation of its own right (employment). That could be enough under federal civil rights law but not the MCRA.

Moss in a City Hall context. His lawyer asked the judge to put his post and speech in the context of police misconduct. (via Springfield City Hall)

“A number of cases cited by the plaintiff are brought under 42 U.S.C. 1983,”—a federal civil rights law—”which has a different framework,” she said.

Rapinchuk played down the meeting Moss had been called into about the Facebook post. It was, in her telling, just typical enforcement of a policy, namely the city’s on social media use. If anybody interfered with his speech rights, she implied, it was the Police Commissioner—a position now bearing the title superintendent.

Robert Johnson, Jr., Moss’s attorney, contested Rapinchuk’s assertion about inapplicability of the statute. But he also immediately urged the judge to consider the incident alongside police misconduct concerns in Springfield at that time.

Johnson suggested, as Moss’s complaint alleges, the Facebook post was one event in a broader history of speaking out for which he was fired despite an otherwise clean personnel record. One earlier event was assistance provided to a Black resident seeking a license-to-carry permit.

Johnson asked the judge to look at the US Department of Justice’s investigation into the Springfield Police Department. He also pointed to observations the SJC made in its ruling that found the Springfield Police Commission ordinance lawful. It was against this broader background that Sarno terminated his client for his speech.

“The issue is the issue of his speech and the content of his speech,” Johnson said.

Hampden Superior Court Judge James Manitsas pushed back, suggesting the count needed to alleged threats, intimidation, coercion. Johnson claimed the mayor’s participation in the investigation and the failure to rein in police leadership was sufficient.

Manitsas probed further.

“Doesn’t that suggest that Superintendent [Cheryl] Clapprood was the actor and Superintendent Clapprood is not an individual party in this case,” the judge queried.

“The mayor fired him,” Johnson returned. “That’s the ultimate form of intimidation or threats: losing your job.”

Turning back to the defense, the judge did not seem to fully buy Rapinchuk’s contention that the termination was not interference under the statute.

(Pre-)Judge James Manitsas at his confirmation hearing in 2021. (via YouTube/Governor’s Council)

“Can the termination be the act, which is intent is to intimidate or coerce the individual from speaking?” Manitsas asked.

The lawyer for Sarno did not agree that it could.

“It certainly prevented him from working from the city, but it certainly did not prevent him from speaking his mind,” Rapinchuk replied.

However, speaking his mind and speaking out is the context Moss and his attorney to consider the claim. As he was leaving the courthouse, Johnson also told WMP&I to review the consent decree and the SJC’s ruling on the Police Commission.

Rapinchuk did not comment after the hearing, citing city policy not to discuss pending litigation. The mayor’s office did not respond to a request for comment.

Clearly, Moss and his attorneys would prefer not to cast this case solely as a claim for discrimination. The strength of those claims remains unclear. The motion practice on the sufficiency of Moss’s non-discrimination claims has let the city defer its answer on everything else.

At this point in the case, the court looks at the alleged facts in the most favorable light to Moss. Obviously the city thinks this turns on whether the termination itself qualified as an interfering act under the MCRA.

However, how to interpret Moss’s context argument also matters. His complaint does contain much of the background Johnson asked the judge to consider. The First Amendment claim could survive if he was fired for speaking about police misconduct generally and not just the Facebook post.

Alternatively, the claim could fall if the judge determines Moss only alleged free speech interference arising from Facebook. The city’s right to manage employees through the social media policy could prevail in that case. However, the judge might also find that parsing this difference is not appropriate at this stage, thus preserving the claim and that fight for another day.

Manitsas did not say when he would rule.