7 years since shocking hate crime, civil rights suit over Nantucket public meeting surfaces racial tension

Nantucket African Meeting House, 1880
Nantucket Historical Association

A shocking hate crime of vandalism on storied Nantucket Island in 2018 has resulted in sour police-community relations, a free-speech civil-rights claim remanded to trial court just this August, and retention in September of a private firm for an independent review.

In March 2018, the historic 1827 African Meeting House on Nantucket Island was vandalized with hate speech in black spray paint, including the "n-word," as shown in the image below, at bottom, from the appendix to the August appellate court decision. (Sensitive readers be warned.)

To date, no one has been convicted of the vandalism. In a civil rights lawsuit by Nantucket residents Jim Barros and Rose Marie Samuels, the Superior Court in 2022 blamed a suspect, Dylan Ponce, who asserted his Fifth Amendment right against self-incrimination, and whom a grand jury refused to indict.

Ponce's employer, Jeffrey Sayle, pleaded guilty to false statement to police and testified that Ponce confessed (The Inquirer and Mirror). The civil case against Ponce was Barros v. Ponce, Civil Action No. 2175CV00004 (Mass. Super. Ct. June 6, 2022) (paywalled at Mass. Lawyers Weekly).

Town Manager Elizabeth Gibson
Town & County of Nantucket

Sayle is the brother-in-law of Nantucket town manager Elizabeth Gibson, who herself is married to the deputy police chief of Nantucket. Given the close relationships of officials and the slow and ultimately unsuccessful police investigation, rumors picked up steam in the years after the 2018 crime that family members of Gibson and police were being protected.

In 2020, Barros and Samuels appeared at a meeting of the town board, as they had before, to demand accountability in the still ongoing investigation. Their remarks fueled continuing suspicion of a cover-up, which prompted the ire of Gibson and police chief William Pittman. 

Chief William Pittman
(captured from public meeting video)

Samuels's exchange with Gibson was especially heated. Angrily denying untruthfulness, Gibson interrupted Samuels and demanded that the chair stop her from speaking further. Samuels, who also accused police of failure to investigate a hit-and-run crash that injured her son in 2018 (more at Change.org), was cowed back to hear seat. She returned to the microphone after Gibson stormed out of the meeting.

Barros accused police of lying because he he had been told by a detective that a perpetrator was identified, but no charges resulted. Pittman, who carried a sidearm, spoke in defense of the police and accused Barros of fueling rumors of a cover-up while claiming to know the identity of perpetrators and refusing to tell police. Pittman retired in 2023.

The salient part of the public meeting is on YouTube, cued here at 27 minutes, and running for 13 minutes:

Barros and Samuels brought a civil rights action against the board, Gibson, and Pittman for violating their free speech rights under the federal and state constitutions, and for intimidation under state civil rights law. The Superior Court granted defendants summary judgment on both counts. In August, the Appeals Court voted 2-1 to to remand Samuels's statutory civil rights claim only to proceed.

The facts matter, in more detail than I've stated them here, because the pretrial disposition turns on whether the evidence is sufficient to submit the claims to a jury. Interested readers can find more detailed articulations of the facts in the judges' opinions.

In short, the court rejected the constitutional claims because neither Barros nor Samuels was actually stopped from speaking. Samuels was allowed to return to the microphone and continue after Gibson stormed out. Barros was allowed to say his piece despite the objections interjected by Pittman.

The civil rights claims were closer calls, though, because intimidation, threat, or coercion is actionable even if the plaintiffs were permitted to speak. The test is one of interference or attempted interference of a protected right, here to speak at the public meeting. 

For pretrial resolution on defense motion, the court views the facts most favorably for the plaintiffs, the non-moving parties. Yet even accepting as true that Barros "was impugned by Pittman, suffered embarrassment, and felt intimidated by Pittman's being armed," the court decided, the sum of Pittman's alleged interference was only impassioned disagreement or disapproval, not intimidation.

Rose Marie Samuels, 2020
(captured from public meeting video)

However, in the case of Samuels, Gibson expressly demanded that she be silenced, and Samuels evidenced intimidation in once returning to her seat. The court concluded, "Gibson's response to Samuels's comments, including Gibson's physically threatening departure from the meeting and hostile, intimate back-and-forth with Samuels, could be sufficient to establish a violation of the [state civil rights act] at trial."

The court's analysis of Samuels's civil rights claim raised an interesting point of "constitutional tort" law, that is, the way tort law is used to operationalize litigation over civil rights. Under state civil rights law, the court explained, "[i]n determining whether conduct constitutes threats, intimidation, or coercion, we apply an objective or 'reasonable person' standard."

Yet like in tort law, the "reasonable person" standard is not wholly objective, but is a test of the reasonable person under the same circumstances as the person being tested, or standing in the shoes of the person being tested. As the court put it, "'objectivity' does not foreclose consideration of the plaintiff's situation"; "we need not ignore who the plaintiff is."

That subjectivity made a big difference in light of Samuels's personal history with police. Considering the facts favorably to her, "she had experienced, and continued to experience, racism from the Nantucket police," the court reasoned. "She mistrusted Gibson, the town manager, who was married to the deputy police chief."

In that emotional context, the court recalled, "Samuels maintains that Gibson 'stormed' past her when leaving the meeting, 'in a physically threatening manner,' 'glar[ed] down' at Samuels from 'within a few feet,' and stopped to ask, twice, whether Samuels was calling her a liar. Samuels characterized Gibson's voice as 'loud and threatening,' and Samuels was frightened by this encounter."

Samuels therefore made a sufficient case to present her claim of intimidation for a jury to decide.

Justice Smyth

Justice Paul Hart Smyth wrote a spirited dissent favoring the plaintiffs on all three counts on which the court affirmed judgment for the defense. He would have sent all four claims, for both plaintiffs, to the jury. Be forewarned, I'm going to quote Justice Smyth at some length, because what he adds to the analysis on Nantucket social conditions I find eye opening.

Speaking to those very circumstances that made a difference in Samuels's statutory claim, Justice Smyth painted a different and bleaker picture of police-community relations on Nantucket.

The record demonstrates that the plaintiffs inhabited a different stratum in the town altogether, as they maintained no apparent political, economic, social, public order, or law enforcement influence over town affairs. First, he described Gibson's social and economic power.

Gibson first began working for the town of Nantucket in 1988, when she was twenty-two years old. She has held the position of town manager since 1995. As town manager, Gibson is a remarkably powerful and influential individual. She exercises direct supervision over almost every town department, including the police, fire, building, finance, health, marine and coastal resources, public works, board of appeals, conservation commission, planning board, council on aging, counsel for human services, historic district commission, parks and recreation, and the shellfish and harbor advisory board. As town manager, Gibson maintains appointment and disciplinary (including discharge) powers over the department chiefs and their employees.... Gibson is not subject to general election, but ... had been reappointed for consecutive terms since 1995.

.... As an acknowledgment of Gibson's influence, multiple town residents warned Barros that he might face adverse consequences to challenging Gibson by implicating her relatives as being involved in the African Meeting House crime. These individuals cautioned Barros, "You know, it's [Gibson's] son and nephew; so, be careful. Watch your back."

He then described the plaintiffs in contrast:

The record demonstrates that the plaintiffs inhabited a different stratum in the town altogether, as they maintained no apparent political, economic, social, public order, or law enforcement influence over town affairs. Samuels, of Jamaican descent, became a full-time resident of Nantucket in 1999; she resides on Nantucket with her son. Samuels has worked in the home healthcare field when her health permits.

James Barros, seventy-six years old [in 2020], worked as a part-time drywaller and plasterer. He has lived intermittently on Nantucket since he was eight years old. Barros, skeptical that the Nantucket police were committed to solving the African Meeting House crime, sought assurance that the police were dutifully investigating the matter .... As Barros stated: "That building is part of me. I'm an African. I have a right to ask who is doing damage to my house."

James Barros
(captured from public meeting video)

Justice Smyth also put additional facts on the table to suggest that the court majority gave Barros's claim short shrift, particularly insofar as circumstances may subjectify the "reasonable person" analysis.

The record supports a rational jury concluding that Pittman's words and conduct threatened Barros to the extent that Barros was terrified when he stood at the town meeting to respond. Barros's fear was based in part on his experience as a Black man who was distrustful and a vocal critic of the Nantucket police. As a consequence of Barros's continued pressure on the police to meaningfully pursue the hate crime investigation, the lead town investigator, Detective Klinger, responded with hostility toward Barros. In addition, numerous people advised Barros "to watch [his] back," and warned him that the Nantucket police were going to "set him up." .... 

The record demonstrates that Barros's fear of the Nantucket police was well grounded. Barros, while driving, was pulled over by the police on two separate occasions following the March 11 board meeting. One Sunday morning, a Nantucket officer pulled Barros over as Barros was headed home from Mass celebrated at St. Mary's Church. The officer approached Barros's truck with his hand on his gun. Although the officer stated that he stopped Barros due to a brake light malfunction, the record indicates Barros's lights were functioning properly and allows the inference of a retaliatory stop. 

In sum, Justice Smyth found sufficient evidence to show interference with civil rights of both plaintiffs, as a matter of fact, and of persons of "reasonable fortitude" in their circumstances, applying the objective test.

Frederick Douglass, center left, at abolitionist meeting, N.Y., 1850.
He first visited Nantucket for an anti-slavery conference in 1841.
Smithsonian Institute/Mr. & Mrs. Set Charles Momjian, via National Park Service

Justice Smyth offered a spirited conclusion that invoked Nantucket's abolitionist history and rallied the judiciary to the defense of speech critical of public officials:

Nearly one hundred and eighty years after Frederick Douglass sought refuge in Massachusetts and traveled to Nantucket to make his first public speech condemning slavery, a person desecrated a site sacred to the island's Black community with the words "Nigger leave." The act was more than an act of property vandalism, as it communicated a direct threat to the plaintiffs' safety and well-being as Black residents of Nantucket. While the United States Constitution, Massachusetts Declaration of Rights, and our laws will never eradicate the hatred and racism in the hearts of individuals who commit such acts, our legal framework guarantees people the right to speak out against such offenses, to petition local officials for answers, and to criticize local government and police officials for failing in their oaths to support our laws and Constitution and to seek justice for all.

Of course, it would be folly to take the force and endurance of these constitutional rights for granted, perhaps lulled by the longstanding welfare and security of our nation and by our courts' historical commitment to safeguarding free speech rights as fundamental to our representative democracy. We do not have that luxury because, even considering the relative strength of our democracy, these rights are subject to the whim of unchecked power that allows for tyrannical tendencies to suppress contrary viewpoints. Thus, the judiciary's vigilance to protect from government interference our people's right to speak to public issues is as critical today as it was when the First Amendment was ratified in 1791.

(Paragraph break added; citations omitted.)

Nantucket Harbor, 2021
RJ Peltz-Steele CC BY-NC-SA 4.0

I get Pittman's frustration at having failed to secure a prosecution for the vandalism, and, presumably with laudable motivations to avoid conflict of interest, in having ceded the investigation to the district attorney and state police. Nevertheless, he and Gibson, as public officials, have to have thicker skin, especially for justifiable outrage at a public meeting.

I share public outrage that such a hateful act defaced a historic place of contemporary cultural importance, and that no prosecution followed, upon whatever tragicomedy of errors. (I include the image below, from the court's appendix, despite the offensive epithet, to demonstrate the severity and offensiveness of the crime.) To be fair to Nantucketers, after the overnight vandalism in 2018, more than a dozen distraught local residents turned out to scrub the African Meeting House clean by 10 a.m. the next morning (Cape Cod Times). But bad eggs are still at large.

Estimates vary, but cost of living on Nantucket usually is said to exceed the national average by more than 100%, and housing costs run more than 300% over. You can bet that upper-crust property owners aren't doing much of the manual labor on the island to keep that economic engine running. Nantucket depends on a significant Jamaican population to work in the tourism industry. Yet the government on the island is worrisomely non-representative of the population by racial demographics.

Once addressing a crowd in Cork, Ireland, Frederick Douglass was shouted down with cries of, "That's a lie," "He shan’t speak," and "Down with the n—" (Gilder Lehrman Center for the Study of Slavery, Resistance, and Abolition). Justice Smyth must have been conscious of the eerie parallel to the meeting dispute and vandalism here. I do not mean to accuse Gibson and Pittman of the same culpability as slave-owners, nor of racism. Rather, I mean to suggest that Nantucket officials ought be cognizant that those same sentiments surfacing today, leveled against black residents, is not a good look.

At some point, the difference between official incompetence and insensitivity, on the one hand, and willful cover-up, on the other hand, becomes immaterial.

In September, a working group of the town board retained a Texas forensics firm, LCG Discovery Experts, to review the investigation into the African Meeting House vandalism—though not to re-investigate the crime. According to Nantucket Current News, the independent review was spurred by a citizen petition.

The case is Barros v. Select Board, No. 23-P-1058 (Mass. App. Ct. Aug. 19, 2025), available at the Social Law Library. Justice Rachel E. Hershfang wrote the court opinion for herself and Justice Vickie L. Henry, contra the dissent of Justice Smyth.

Court Appendix in Barros v. Select Board

Transparency never goes out of style

This autumn, I am privileged to serve as a new member of the Freedom of Information Act (FOIA) Advisory Committee, a U.S. federal entity constituted under the Federal Advisory Committee Act (FACA) and administered by the Office of Government Information Services (OGIS), within the National Archives and Records Administration (NARA).

If that alphabet soup has your head spinning, then you have some sense of what it's been like for me to get up to speed in this role. That said, I'm thrilled to have the opportunity and humbled by the expertise of the committee members and OGIS staff with whom I'm serving.

I'll have more to say in time, as we have accomplishments to report. Meanwhile, though, a bit of parody art. At a meeting yesterday of the Implementation Subcommittee, ace OGIS compliance officer and former journalist Kirsten B. Mitchell related an anecdote.

A youthful person had wondered aloud that Fresca is quite old, perhaps dating to the 1980s! And Mitchell said she felt compelled to note that it is even older. In fact, the niche-beloved Coca-Cola Co. soft drink dates to the same year the FOIA was signed into law: 1966. That modest revelation prompted me to generate the above art, based on a contemporary Fresca ad that capitalizes on the drink's age ("Delicious Never Goes Out of Style"). (Above art by RJ Peltz-Steele CC BY-NC-SA 4.0 with no claim to underlying work of Coca-Cola Co.)

The inaugural public meeting of the 2024-2026 FOIA Advisory Committee, at NARA in September, is posted on YouTube.

Police reform shines light on disciplinary records

CC0 Pixabay via picryl

A favorable reform to follow the police protest movement of recent years, stemming in particular from the killing of George Floyd, has been transparency around police disciplinary dispositions.

There is room for disagreement over what police reform should look like. I'm of the opinion that it costs society more to have police managing economic and social problems, such as homelessness and mental health, than it would cost to tackle those problems directly with appropriately trained personnel. I wouldn't "defund" police per se, but I would allocate public resources in efficient proportion to the problems they're supposed to remedy. We might not need as much prison infrastructure if we spent smarter on education, job training, and recreation.

Regardless of where one comes down on such questions, there is no down-side to transparency around police discipline. Police unions have cried privacy, a legitimate interest, especially in the early stages of allegation and investigation. But when official disciplinary action results, privacy should yield to accountability. 

Freedom-of-information (FOI) law is well experienced at balancing personnel-record access with personal-privacy exemption. Multistate FOI norms establish the flexible principle that a public official's power and authority presses down on the access side. Because police have state power to deprive persons of liberty and even life, privacy must yield to access more readily than it might for other public employees.

In September 2023, Stateline, citing the National Conference on State Legislatures, reported that "[b]etween May 2020 and April 2023, lawmakers in nearly every state and [D.C.] introduced almost 500 bills addressing police investigations and discipline, including providing access to disciplinary records." Sixty-five enacted bills then included transparency measures in California, Colorado, Delaware, Illinois, Maryland, Massachusetts, and New York.

The Massachusetts effort has come to fruition in online publication of a remarkable data set. Legislation in 2020 created the Massachusetts Peace Officer Standards and Training (POST) Commission. On the POST Commission website, one can download a database of 4,570 law enforcement disciplinary dispositions going back 30 years. There is a form to request correction of errors. The database, at the time of this writing last updated December 22, 2023, can be downloaded in a table by officer last name or by law enforcement agency, or in a CSV file of raw data.

The data are compelling. There are plenty of minor matters that can be taken at face value. For example, one Springfield police officer was ordered to "Retraining" for "Improper firearm usage or storage." I don't see that as impugning the officer, rather as an appropriately modest corrective and a positive for Springfield police. Many dispositions similarly suggest a minor matter and proportional response, for example, "Written Warning or Letter of Counseling" for "conduct unbecoming"/"Neglect of Duty."

Then there are serious matters. The data indicate termination of a police officer after multiple incidents in 2021, including "DRINKING ON DUTY, PRESCRIPTION PILL ABUSE, AND MARIJUANA USE," as well as "POSING IN A HITLER SALUTE." Again, it's a credit to the police department involved that the officer is no longer employed there. Imagine if such disciplinary matters were secreted in the interest of personal privacy, and there were not a terminal disposition.

The future of the POST Commission is to be determined. It's being buffeted by forces in both directions. Apropos of my observation above, transparency is not a cure-all and does not remedy the problem of police being charged with responsibility for social issues beyond the purview of criminal justice.

Lisa Thurau of the Cambridge-based Strategies for Youth told GBH in May 2023 that clarity is still needed around the role and authority of police in interacting with students in schools. Correspondingly, she worried whether the POST Commission, whose membership includes a chaplain and a social worker, is adequately funded to fulfill its broad mandate, which includes police training on deescalation.

Pushing the other way, the POST Commission was sued in 2022, GBH reported, by police unions and associations that alleged, ironically, secret rule-making in violation of state open meetings law. Certainly I agree that the commission should model compliance in rule-making. But I suspect that the union strategy is simply obstruction: strain commission resources and impede accountability however possible. Curious that the political left supports both police unions and police protestors.

WNYC has online a superb 50-state survey of police-disciplinary-record access law, classifying the states as "confidential," "limited," or "public." Massachusetts is among 15 states in the "limited" category. My home state of Rhode Island and my bar jurisdictions of Maryland and D.C. are among the 24 jurisdictions in the "confidential" category.

"Sunshine State" Florida is among 12 states in the "public" category. In a lawsuit by the Tallahassee Police Benevolent Association, the Florida Supreme Court ruled unanimously in November 2023 that Marsy's Law, a privacy law enacted to protect crime victims, does not shield the identity of police officers in misconduct matters. (E.g., Tallahassee Democrat.)

Opioid settlement disbursements must be transparent, state high court rules in row over nonprofit foundation

The nonprofit foundation responsible for disbursing hundreds of millions of dollars of opioid settlement money in Ohio is subject to state freedom of information laws, the state supreme court ruled Thursday.

Big money is flowing out of opioid settlements, such as the $10 billion deal struck by pharmacies CVS and Walgreens. Ohio will see some $450 million of that money, Emily Field reported for Law360 (limited free access). At least half of it will be disbursed by a nonprofit organization that state and local governments created for the purpose, the OneOhio Recovery Foundation.

A representative of Harm Reduction Ohio (HRO), another nonprofit organization, concerned with preventing overdose deaths, was shown the door at a OneOhio meeting not open to the public. OneOhio subsequently refused to reply to record requests under the Ohio public records act (PRA).

That will change now, as the Ohio Supreme Court ruled unanimously that OneOhio is the functional equivalent of a public entity, the test for bringing quasi-private actors within the scope of the PRA. To determine functional equivalence, the court explained, a totality-of-the-circumstances, multi-factor test asks:

(1) whether the entity performs a governmental function,
(2) the level of government funding, 
(3) the extent of government involvement or regulation, and 
(4) whether the entity was created by the government or to avoid the requirements of the Public Records Act.

The burden of proof is "clear and convincing," which is no low hurdle. 

The factors are common in functional equivalence tests in state sunshine laws in the United States. The devil is in the application. Characteristically, HRO and OneOhio posited very different analyses.

Though the multi-factor test makes no one factor dispositive, funding often proves controlling in cases such as these, even to the point that some states employ a disjunctive formulation along the lines of "state funding or state power." Here, the parties looked at the problem from differing angles. HRO characterized the money under the control of OneOhio, an entity created by government, as public money. OneOhio rather looked to the source of the money, private corporations, and to the ultimate beneficiaries, private-person recipients of state aid.

HRO had it right, the court decided. The analysis was bolstered by the inescapable conclusion that OneOhio was created by state and local governments through a memorandum of understanding specifically about how they would handle the money. OneOhio tried to resist the fourth factor by articulating it as conjunctive, thus, requiring an intent to evade the PRA. But the court had none of it.

Another somewhat superfluous argument by OneOhio merits mention. The foundation argued that subjecting it to the PRA would makes its funds vulnerable to raiding for other purposes by the legislature. Neither here nor there, the court opined. I suggest moreover that OneOhio's PRA accessibility is the result not the cause of its public status.

What's interesting about the argument from a tort perspective, though, is that OneOhio pointed to the example of tobacco settlement money. The Ohio executive and legislature responded to the 2008 financial crisis by diverting $230m in proceeds from the 1998 Master Settlement Agreement with Big Tobacco to unrelated purposes, namely, balancing the budget and fostering job creation. The Ohio Supreme Court upheld the diversion against constitutional challenges in 2010.

The application in the states of functional equivalence and similar tests to extend sunshine laws to quasi-private actors is highly variable, as much a function of the eye, or prejudices, of the beholder, as of any mathematical formula. That makes it difficult to extrapolate from the Ohio case beyond Ohio.

Still, I find this case offering a compelling analysis to access the infamously secret records of university foundations in other states. Those records, too, often are secreted upon the rationale that the funds originate with private donors. Consistently with the instant case, but not representing a majority rule in the states, the Ohio Supreme Court sided with a newspaper in 1992 in granting PRA access to the donor rolls of the nonprofit University of Toledo Foundation.

The instant case is State ex rel. Harm Reduction Ohio v. OneOhio Recovery Foundation, No. 2023-Ohio-1547 (May 11, 2023).

Upcoming NFOIC Summit features access all-stars

Access-to-information (ATI, RTK, FOI) enthusiasts are invited and encouraged to attend the online 2022 summit of the National Freedom of Information Coalition on October 18-20.

My FOI seminar class and I will be there.

From the summit home page at Whova, this year's program "will include two hands-on training seminars and over a dozen of sessions this year. Hear real stories from real people, learn the best approaches to enforcing FOI Laws, examine the public's right now in the era of polarization, and more."

Summit participants include experts and champions of transparency, open government, and First Amendment rights. They also include journalists, public employees, govtech and civictech individuals, and anyone who are interested in democracy and accountability."

Speakers include (but are not limited to) some heroes of mine in the academy, notably David Cuillier, University of Arizona; Daxton "Chip" Stewart, Texas Christian University; A, Jay Wagner, Marquette University; Margaret Kwoka, Ohio State University; and Amy Sanders, University of Texas at Austin.

The lineup also features some FOI legends who have worn many hats, including Frank LoMonte, now at CNN and most recently executive director of the Brechner Center; Michael Morisy of MuckRock; Colleen Murphy of the Connecticut FOI Commission; Tom Susman of the American Bar Association and previously of Ropes & Gray; and Daniel Libit, founder of The Intercollegiate and Sportico and tireless advocate for accountability in college athletics.

This year's agenda covers ORA/OMA litigation and enforcement, college athlete publicity rights, messaging apps, doxxing, law enforcement video, legislative transparency, and much more.

I also look forward to seeing the latest research, which wins consideration for publication in the Journal of Civic Information (for which I'm privileged to serve on the Editorial Board).

Registration is affordable and online here. #FOISummit22.

If you've read this far, you might be interested as well in a free public series of online classes recently announced by the New England First Amendment Coalition (NEFAC), "Open Meeting Law: How Newsrooms Respond to Executive Session Secrecy."