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Johnson v. Duxbury

United States Court of Appeals, First Circuit

July 29, 2019

BRIAN JOHNSON; KELLEY O'NEIL; CHRISTOPHER JOHNSON; MINOR CHILD, Plaintiffs, Appellants,
v.
DUXBURY, MASSACHUSSETTS; MATTHEW CLANCY, Defendants, Appellees.

          APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Nathaniel M. Gorton, U.S. District Judge]

          Michael S. Rabieh, with whom Margaret G. Plaza and The Law Office of Michael S. Rabieh were on brief, for appellants.

          John J. Davis, with whom Pierce Davis & Perritano LLP was on brief, for appellees.

          Before Howard, Chief Judge, Kayatta and Barron, Circuit Judges.

          BARRON, CIRCUIT JUDGE.

         This appeal concerns a suit that a police officer in the Town of Duxbury, Massachusetts (the "Town") filed under 42 U.S.C. § 1983 in the United States District Court for the District of Massachusetts against the Town and the Town's chief of police. The suit alleged that the defendants had violated the police officer's rights under the Fourth Amendment of the United States Constitution by demanding his cell and home phone records in connection with the Duxbury Police Department's ("DPD") internal investigation of him in 2015. The District Court granted the defendants' motion for summary judgment. We affirm.

         I.

         Brian Johnson was employed, at all relevant times, by the Town as a police officer. In December 2015, Matthew Clancy, the Town's Chief of Police, opened an internal investigation concerning Johnson. "The purpose of the investigation was to determine whether Officer Johnson . . . violated any DPD policies, procedures, rules or regulations upon [his] receipt of information regarding" an ongoing murder investigation in a nearby town. That murder investigation concerned the death of Robert McKenna, whose body was found in September 2015, and the five firearms that were stolen from the scene of that crime.

         The undisputed record shows that Brianna St. Peter, an acquaintance of Johnson, called Johnson in October 2015 about the arrest of a potential suspect in the McKenna murder, that Johnson was subpoenaed in November 2015 to testify before a grand jury about the McKenna murder, and that Johnson did not inform Clancy or any of his superiors at the DPD about either event. Clancy opened the internal investigation into Johnson after he "receiv[ed] information" that Johnson "may have had knowledge of the McKenna murder and/or of the stolen firearms, yet failed to disclose such knowledge to the investigating authorities, [his] superior officers or the DPD."

         In February 2016, as part of that investigation, Clancy "order[ed]" Johnson -- in a formal letter -- to provide "a copy of [his] Phone Records for the period of time including July 1, 2014 through to February 15, 2016," including "the records for any phone numbers; landline(s) or cell phone(s) and any other cell phone records registered in [his] name and/or used by [him] during that time period." The letter further stated that "[t]he records for cellphones should include a listing (phone numbers) for all incoming and outgoing calls and text messages made by [Johnson] and to [him] from those cell phone[s] registered to [him] for the time period requested" and that "[t]he record(s) should be issued by the cell phone provider . . . in the normal format." The letter informed Johnson that "[f]ailure to conform to this order . . . will be considered a violation[] of the department's rules and regulations . . . and will result in discipline up to and including termination."[1]

         Johnson thereafter retained counsel through the union. That counsel informed Clancy that he had advised Johnson "to respectfully decline to comply with" the order because it was "unreasonably overbroad and vague." In March 2016, Johnson's counsel and the Town's counsel agreed upon a "limited production process for the requested phone records."[2] Through that process, Clancy would "identify certain numbers potentially relevant to the [internal] investigation," and Johnson would produce redacted records that would contain only "information regarding the relevant phone numbers." Clancy then sent a letter to Johnson that detailed "order[s]" for the revised production process, in which Clancy requested the "phone record[s] [that] will be redacted" to "contain[]" only "information . . . regarding the identified phone numbers."

         Pursuant to that limited production process, Johnson's counsel sent the Town's counsel an email that contained a link to a copy of Johnson's unredacted phone records for the requested time period. The Town's counsel replied to the email with a list of nine telephone numbers "that the Duxbury Police Department [was] interested in." Johnson's counsel then sent the Town's counsel an email that contained a link to a copy of Johnson's phone records. That copy had been redacted to show only the incoming and outgoing call information that pertained to the nine phone numbers that the DPD had earlier identified. The Town's counsel forwarded the link to Clancy.

         In December 2017, Johnson filed an amended complaint in the United States District Court for the District of Massachusetts against the Town and Clancy. The complaint alleged, as relevant here, that the Town and Clancy had compelled Johnson to turn over his phone records and that this constituted an "illegal warrantless search" in violation of Johnson's federal constitutional rights.[3] The defendants moved ...


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