State rescinds Boston's firing of cop who tweeted support for violent coup attempt; says cops have First Amendment rights in their off hours

The state Civil Service Commission last week overturned Boston Police's firing of Ofr. Joseph Abasciano, who traveled to Washington to watch Jan. 6 unfold - although he never entered the Capitol - and who, under a pseudonym, posted a series of tweets calling officials who opposed the loser of the 2020 elections a bunch of traitors and urging "a civil war or a violent revolution."

The ruling has little immediate impact since Abasciano is now retired due to disability - leg injuries he suffered while on the job, well before Jan. 6 and the department's termination did not reduce his retirement benefits. However, it could help him with his federal lawsuit against the city for both his firing and its refusal, while he was still on the BPD payroll, to grant him an exemption to the city's Covid-19 vaccination requirement.

The commission says Abasciano posted the tweets in his off hours as a private citizen - on his trek to and from DC - that that he left Washington once he saw the coup attempt turn violent and that, in any case, none of his tweets, posted under a pseudonym that another officer with whom he had beef reported to BPD, "negatively impacted the BPD’s operations or public mission."

In its decision, written by Commissioner Paul Stein, the commission emphasized its ruling doesn't mean it's siding with anything posted by Abasciano, a former West Roxbury resident who now lives in New Hampshire:

This decision does not overlook the fact that most citizens, including members of this Commission, rightly reject the Appellant's misinformed opinions contained in his tweets about the 2020 election and its aftermath. The limited issues before the Commission, however, were: (1) whether the Appellant's disability retirement application filed by the BPD in June 2022 and approved retroactively to his termination date divested the Commission of jurisdiction to adjudicate the just cause for the BPD's termination decision, which the Commission decided it did not; and (2) whether, on the facts and the law, the Appellant's tweets were constitutionally protected speech, as he claimed, or whether, when made, or after they became public, the tweets rose to the level of sanctionable misconduct that justified his termination as the BPD claimed. The Commission's decision finds the Appellant's tweets to be protected speech and are not just cause for his termination. The decision is not to be construed as endorsing the substance of those misinformed opinions nor as condoning the underlying, unconscionable criminal acts committed by those who stormed the Capitol that day.

The commission noted that two investigations in 2021, one by BPD's anti-corruption unit, the other by its internal-affairs unit, had cleared Abasciano of any fireable offenses for the trip he made to DC on Jan. 5 with fellow officer Jose Diaz - who knew enough to not post publicly about the trip - during which he tweeted, under a pseudonym, such things as:

MAGA Millions of Patriots here in DC. Today is a day for choosing. Today there will be only two parties in America. Traitor and Patriots!” #January6 #MAGA #MarchForTrump

and

I hope you never sleep well again @VP your Treasonous Act led to the murder of an innocent girl and the death of America. You are not a Godly man. I guess @ LLinwood was right about you all along.

The investigations had been sparked by somebody - who turned out to be another Boston cop - who filed a complaint with BPD linking Abasciano to the Twitter account used to post them, @mailboxjoe.

After his appointment by Mayor Wu as police commissioner, Michael Cox ordered the case re-opened. And this time, BPD decided the tweets were ill becoming of a Boston Police officer who is supposed to work for and protect, and be trusted by everybody. In a new report, Deputy Supt. Richard Dahill, who oversaw the internal hearings leading to Abasciano's fireing wrote:

I find the posts, taken at face value, indicate that Officer Abasciano is unable to impartially and without bias perform his duties as a sworn member of the Department. Officer Abasciano post suggests he views the members of the community as either patriots or traitors. The comments indicate a rigid viewpoint that does not recognize the duty to protect the rights of all individuals, rather it divides people as traitors or patriots. Even after Officer Abasciano was aware that the rally had degenerated into a criminal riot resulting in at least one death and the destruction of property in the US Capitol, Officer Abasciano continued to use incendiary language and blamed Vice President Pence for the events rather than the criminal rioters showing a lack of a commitment to preserving life and property, or respect for our law enforcement partners.

But the commission credited the two initial investigations, which cleared Abasciano of any offenses worth possible criminal action or firing, more than the third one, under Cox, because they were far more detailed and included interviews with superior officers who, while acknowledging Abasciano had conservative politics, swore they never noticed them interfering with his work as a police officer in Roxbury and Dorchester.

And the commission noted the punishment in his case was far more severe than BPD meted out to two other officers who had interfered with their duties as BPD officers: One compromised a murder investigation by releasing some information about it, the other was caught stealing, yet both were only suspended for a time, not fired.

In sum, the BPD failed to meet their burden of producing evidence to prove that any BPD personnel, Boston employees, or members of the public (save for the Appellant's one nemesis) protested any of the Appellant's tweets, including the three more severely critical ones singled out above, or voiced any complaints about him. The BPD's own command staff took different views about the risk of disruption that these tweets had on the BPD's ability to fulfil its public mission. Those who knew the Appellant professionally provided credible evidence of his ability to keep his politics from having any influence on his ability and duty to do his job as a BPD police officer. Neither Deputy Superintendent Crispin nor Captain Martin saw the Appellant's tweets as conduct unbecoming. Hearty disagreement by those in positions of authority can generally form no basis for employment discipline.

The decision discusses some of the specific tweets, finds several to be Constitutionally benign comments on American politics and even the others not a valid reason to fire a Boston cop, because they did not directly discuss Boston or its police force:

To be sure, some of the language in these tweets is particularly harsh – i.e., accusing Vice President Pence of and the "Political Elitest Class" of treason that led to the "murder of an innocent girl" and has "killed the republic". However, these tweets also expressed a theme similar to his earlier tweets: what the Appellant considered betrayal by elected officials whom the Appellant (erroneously) was misled into believing had violated their oaths of office. They do not express animosity toward any members of the BPD or any individual, group or class of Boston citizens or officials.

Stein added that even after this case, BPD still does not have any formal policies on officers' use of social media while off duty:

I have considered the fact that the BPD’s Rules and Procedures did not, and apparently still do not, include a specific social media policy. This fact, however, does not change the analysis. It would behoove the BPD, however, to review its policies and determine whether promulgation of a social media policy would serve the interests and the mission of the BPD in the future.