Judge rules now retired Cambridge SWAT officer can continue his suit against the city for allegedly disciplining him for buying guns he thought were no good

A federal judge yesterday rejected requests from the city of Cambridge and Sig Sauer to dismiss a lawsuit by retired Cambridge Police Lt. Thomas Ahern, who charges the city kept him from advancing in the ranks because he complained about allegedly crappy guns from Sig Sauer that were prone to easily firing - as he claimed happened in 2019 while he and other SWAT officers and two firefighters were in a van at the annual Mayfair celebration in Harvard Square in 2019.

US District Court Judge Denise Casper agreed with Ahern's contentions that his allegations about the safety of the model P320 gun was a matter of public concern that he was addressing as a private citizen and so protected by the First Amendment - and a Massachusetts whistleblower law - and that the guns are covered by a federal law about warranties on items sold to the public, since Sig Sauer sells the specific model to the public.

And in making his case, Ahern raised questions that could only be settled by a jury, such as whether Cambridge prevented him from rising above the rank of lieutenant because of his ongoing gun criticism, rather than anything to do with finding him negligent for taking his gun out of his holster in a van packed with other officers, Casper ruled - adding that at trial, the city can make it's case why Ahern is wrong. Also for a jury to decide: Whether Sig Sauer was negligent in selling guns that, as Ahern alleges, went off way too easily, Casper ruled.

In seeking a dismissal of his suit, Cambridge argued that Ahern was criticizing the gun model in his role as an employee - and that employee speech, unlike statements by members of the public, are not protected by the First Amendment, specifically, what the city said was his refusal to accept responsibility for the van incident - in which Ahern suffered a bruise, but nobody else was injured.

Casper, however, concluded that Ahern refused to accept responsibility for unholstering his gun, which then went off, because he claimed it was proof of his earlier criticism of the gun in general - which he had said started when another SWAT officer pointed him to a video showing one of the guns going off after it was dropped to the ground.

She continued that Ahern's job had nothing to do with the selection of specific guns to buy, so nothing he said about the gun fell under his specific "job responsibility," or even that his job included speaking publicly on behalf of the department, all of which would be unprotected "employee" speech.

For all these reasons, the Court concludes that Ahern was speaking as a private citizen concerning the safety of the P320.

She added:

For all the reasons, on the present record, the Court concludes that there are genuine disputes of fact concerning whether Ahern’s speech was a substantial and motivating factor in the subsequent adverse employment actions Ahern experienced.

Similarly, Casper dismissed Sig Sauer's contention that federal and state warranty laws don't apply in this case:

Under [federal law], a "consumer product" is defined as "any tangible personal property which is distributed in commerce and which is normally used for personal, family, or household purposes." On this record, the P320 meets this definition. Although Ahern's use of the firearm was in professional capacity, the record otherwise supports that the P320 is a consumer product as it distributed broadly in the United States and Canada, mostly through distributors, but is sold directly to consumers in New Hampshire.

In addition to punitive damages, Ahern is seeking money to cover what he alleges are the lost income from not getting promoted.