Attorneys for the City of Boston believe they existing case law permits them to dismiss Officer Justin Barrett for sending racist e-mails to a Boston Globe columnist and members of his National Guard unit, reports the Boston Herald.
This move is in response to a suit that Barrett filed to prevent city officials from fulfilling their promise to terminate the officer.
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According to the reporter Edward Mason, lawyers for the city believe they are fully within their rights to fire Barrett. They cite a case from New York City originating in 1998 when a cop was fired for wearing blackface and throwing watermelon slices from a parade float mocking the murder of James Byrd in Texas, an African-American who was dragged to death by a truck driven by two white men.
A federal appellate court upheld the dismissal of Officer Joseph Locurto, reversing a lower court decision which said the firing was not lawful.
The city's interest "in maintaining a relationship of trust between the Police and Fire Departments and the communities they serve outweighed the plaintiffs' expressive interests in this case," wrote the judges in the United States Court of Appeals for the Second Circuit. "One's right to be a police officer or firefighter who publicly ridicules those he is commissioned to protect and serve is far from absolute."
New York City moved in 1998 to terminate Locurto and two firefighters for their role in a Labor Day parade held in the borough of Queens.
At issue in the case was whether the city had dismissed the police officer, Joseph Locurto, and the two firefighters, Jonathan Walters and Robert Steiner, because it deemed their actions distasteful or because they posed a threat of disruption. In the parade, through the mostly white Broad Channel neighborhood, the men rode a float labeled "Black to the Future: Broad Channel 2098," which featured buckets of fried chicken on the hood of a flatbed truck. Mr. Walters re-enacted the killing of James Byrd Jr., a black man who was dragged to his death behind a pickup truck in Texas.
Attorneys for the three men argued that then mayor Rudy Giuliani fired them as a result of the city's own issues of racial strife with various minority groups.
[Their lawyers] argued at the time that Mr. Giuliani orchestrated the firings to counter criticism for racial insensitivity. That criticism had been particularly harsh over the Police Department's handling of the so-called Million Youth March, a rally in Harlem that ended in clashes with officers days before the parade.
In 2003, Judge John E. Sprizzo of Federal District Court in Manhattan rejected Mr. Giuliani's explanation that he had endorsed the men's firings out of concern for disruption, and concluded that they were indeed fired for "the content of their speech, and for reasons of public perception and the political impact expected to flow" from it.
However, three years later, the Appeals Court reversed Sprizzo's rule, concluding that the dismissal was both reasonable and justified.
The U.S. Supreme Court declined to review the case.
Already, a prominent first amendment rights attorney in Boston is on record stating Boston can fire Barrett for reasons not pertaining to the first amendment:
“You don’t surrender your First Amendment rights when you’re out of uniform, and that’s the key,’’ said Harvey Silverglate, a criminal defense and civil liberties lawyer. “I think it’s a close case. My guess is the Police Department would be able to proceed against him on the basis that it showed a lack of qualification to be a police officer, and he could be fired. Sometimes, there are really two sides to an issue.’’
Barrett injected himself into the controversy surrounding the arrest of Dr. Henry Louis Gates, a Harvard professor, by Officer James Crowley of the Cambridge Police Department, when he sent a rambling 700 word letter to Yvonne Abraham, a columnist with the Boston Globe.
Here is a sampling of the clever whiticism of Justin Barrett, 36:
“If I was the officer (Gates) verbally assaulted like a banana-eating jungle monkey, I would have sprayed him in the face with OC (pepper spray) deserving of his belligerent noncompliance,” the e-mail reads.
Barrett then denied that his e-mail was actually inflamatory:
“I did not mean to offend anyone,’’ he said. “The words were being used to characterize behavior, not describe anyone . . . I didn’t mean it in a racist way. I treat everyone with dignity and respect.’’
This "respect" was in evidence when he said the following about Abraham:
...a hot little bird with minimal experiences in a harsh field. You are a fool. An infidel. You have no business writing for a US newspaper nevermind detailing and analyzing half truths. You should serve me coffee and donuts on Sunday morning. . . You need to serve a day with the infantry and get swarmed by black gnats while manning your sector. Or you just need to get slapped, look in the mirror and admit, "Wow, I am a failure. I am a follower. Who am I kidding?" Again, I like a warm cruller and a hot Panamanian, black. No sugar.
Mayor Tom Menino, who is facing reelection this fall, left no ambiguity in his statement to the media:
“I was angry about the incident when the commissioner spoke to me [Tuesday] night,’’ Menino said. “I said, ‘He has no place in this department, and we have to take his badge away.’ That stuff doesn’t belong in our city, and we’re not going to tolerate it.’’
The mayor said he has not seen the e-mail and while the officer is not officially terminated, he might as well be. “He’s gone - g-o-n-e. I don’t care, it’s like cancer, you don’t keep those cancers around.’’
Barrett then filed suit, specifically mentioning comments by Menino and Police Commissioner Edward Davis as prejudicial.
According to the lawsuit, the mayor and commissioner’s actions caused Barrett pain and suffering, mental anguish, emotional distress, posttraumatic stress, sleeplessness, indignities and embarrassment, degradation, injury to reputation, and restrictions on personal freedom.
The suit also contends that Davis and Menino’s treatment of the officer is “disproportionate to the allegations against Officer Barrett given he has not had any meaningful opportunity to prepare any defense to the allegations based on [their] statements.’’
IMO Boston feels very confident that they have the legal justification in the Locurto case to terminate Barrett. The fact that one of the judges issuing the ruling has a nomination pending to the Supreme Court clearly doesn't diminish the confidence city officials have in winning their case and in fact may have emboldened Boston to publicly announce their strategy for upholding the dismissal.