Free Speech at work and the importance of a good investigation.

In 2018, Sig Sauer’s controversial P320 firearm became the new duty firearm for all Cambridge Police Officers. Even before Cambridge bought the guns in 2017, Lieutenant Thomas Ahern raised concerns about the Glockish gun’s alleged propensity to fire without a trigger pull – if it was dropped, for example. He complained about it inside and outside of work, repeatedly.

Then, sitting inside the big SWAT van at a 2019 Mayfair celebration, Ahern’s P320 accidentally discharged. The bullet hit the magnetic case of a cellphone in his pocket, and left a bruise. Wow. Needless to say, his complaints about the safety of the P320 did not stop.

Ahern alleged that, as a result of his speech, voicing concerns and complaints about safety, he was denied training opportunities, denied promotions, asked to step down as a Commander of the SWAT team, isolated from staff, and issued a written reprimand in 2021. He also alleged that the “rush to judgement” and abnormal investigation procedure surrounding the SWAT van discharge incident constituted an adverse employment action. In 2023, after a disciplinary hearing but before findings were issued, Ahern retired.

Ahern filed a lawsuit alleging that the Cambridge Police Department violated his First Amendment rights to Free Speech by retaliating against him for speaking up about his P320 safety concerns, (42 U.S.C. §1983), and violated the Massachusetts Whistleblower Act (M.G.L. c. 149 §185). He also sued Sig Sauer alleging negligence, breach of warranty, and violation of the Massachusetts Consumer Protection statute (M.G.L. c. 93A). On December 16, 2024, U.S. District Judge Denise Casper denied the City of Cambridge’s Motion for Summary Judgement, allowing the case to proceed. See, Ahern v. Sig Saur & City of Cambridge, Case No. 21-cv-11007-DJC (D. Mass).

With respect to the §1983 claim, the Court found that Ahern was speaking as a citizen on a matter of public concern – not as an employee speaking within the scope of his duties – when he voiced concerns about the safety of P320. Generally speaking, citizen speech triggers protections while speech by employees, speaking in their official capacity, may be subject to discipline.

The Court also found that there were genuine issues of material fact as to whether Ahern’s speech was a substantial and motivating factor in the adverse employment actions he experienced. It is important to note that one of the adverse employment actions alleged was a rush to judgement and irregularities in conducting the investigation into the accidental discharge of the firearm. The Court found that the approach to the investigation could constitute circumstantial evidence from which a jury could infer a retaliatory motive.

This finding underscores the importance of a properly and carefully conducted, unbiased, investigation in any employment context.

To learn more about the intersection of Employment Law, Whistleblower Protections, and the First Amendment, as well as the importance of swift and fair investigations, contact Malloy & Sullivan.

The full text of the Ahern decision can be found here.