Berkshire County — Nearly two years have passed since the Great Barrington Police Department investigated now-former eighth grade W.E.B. Du Bois Middle School ELA teacher Arantzazú Zuzene Galdós-Shapiro after the department received an anonymous complaint that she had a copy of the graphic novel “Gender Queer” in her classroom.
Since the incident, which made national headlines, Galdós-Shapiro filed lawsuits against the town of Great Barrington, Great Barrington Police Chief Paul Storti, Great Barrington Police Officer Joseph O’Brien, and Berkshire Hills Superintendent of Schools Peter Dillon.
While all the defendants tried to get the lawsuits dismissed, United States District Court Judge Mark G. Mastroianni ruled on October 17 that Galdós-Shapiro’s lawsuits against the town of Great Barrington, Chief Storti, and Officer O’Brien can move forward. However, Galdós-Shapiro’s lawsuit against Superintendent Dillon has been dismissed.
Timeline of events:
- The case made national headlines when, back in December 2023, the Great Barrington Police Department conducted an investigation of Galdós-Shapiro at the school for possession of the graphic novel.
- Bodycam footage of Officer O’Brien questioning Galdós-Shapiro and then-Principal Miles Wheat was subsequently made available by the Police Department.
- Following public backlash over the incident, Police Chief Paul Storti released an apology in late December 2023 for the investigation and how it was handled.
- In February 2024, Berkshire Hills Regional School District issued an independent report on the incident that revealed that the complainant who went to the police was Great Barrington resident Adam Yorke, who worked as a night custodian in the school district. Yorke made multiple allegations against Galdós-Shapiro that were eventually proven false.
- In April 2024, a Great Barrington Selectboard-commissioned report on the police investigation found that the department’s actions were “lawful and proper.”
- In May 2024, Galdós-Shapiro, who now lives in Philadelphia, filed a civil rights lawsuit in United States District Court against the town of Great Barrington, Berkshire Hills Regional School District, Superintendent Dillon, Police Chief Storti, and investigating Officer O’Brien.
- In August 2024, Galdós-Shapiro’s team of attorneys from Boston’s Todd & Weld LLP filed an amended complaint with multiple new allegations against the defendants.
- In September 2024, the attorney representing the town, police department, and school district made a motion in United States District Court to have the lawsuits dismissed, and Superintendent Dillon’s attorney filed a separate motion to have the lawsuit dismissed in October 2024.
- In late November 2024, Galdós-Shapiro’s attorneys filed oppositions to the two separate motions to dismiss.
- In December 2024, attorneys representing the town, Chief Storti, Officer O’Brien, and Superintendent Dillon all re-filed motions to have the case dismissed.
- In January, attorneys for Galdós-Shapiro filed their objections to motions to dismiss her lawsuits.
As per the court filing, Galdós-Shapiro’s lawsuits are divided into seven counts:
- Count One: Galdós-Shapiro alleges her rights under the First Amendment were violated by the town, Chief Storti, Officer O’Brien, and Superintendent Dillon, in the Police Department’s investigation.
- Count Two: Galdós-Shapiro alleges her rights under the Fourth Amendment, which protects against unreasonable searches and seizures by the government, were violated. In the lawsuit, she claims that she was unlawfully detained and that she and her classroom were unlawfully searched.
- Count Three: Galdós-Shapiro alleges her rights under the 14th Amendment, which grants citizenship rights and equal protection under the law, were violated. According to the court filing, Galdós-Shapiro alleges “she is a member of two ‘suspect’ classes on account of her sexual orientation and her Mexican American heritage.”
- Count Four: Galdós-Shapiro alleges that the defendants violated the Massachusetts Civil Rights Act during their investigation.
- Count Five: Galdós-Shapiro Alleges that the defendants all engaged in an unlawful civil conspiracy.
- Count Six: As filed in Galdós-Shapiro’s second amended complaint in September 2024, she claims there was intentional infliction of emotional distress against her.
- Count Seven: Also filed in the second amended complaint, Galdós-Shapiro claims defamation by the defendants.
In regards to Count One, allegations that Galdós-Shapiro’s First Amendment rights were violated, Judge Mastroianni writes in his decision:
Here, [Galdós-Shapiro] has adequately alleged that her possession of “Gender Queer” is constitutionally protected conduct.
The complaint also sufficiently alleges an adverse action, as the arrival of a plain clothes police officer inquiring into ownership of a literary work at one’s place of employment (accompanied by one’s employer) can be plausibly viewed as likely to deter a reasonably hardy individual from exercising their right to own the specific book.
This is especially true when that police officer, in the presence of the employer, asserts the book contains unlawful child sexual material.
Causation has also been adequately alleged, as there is no doubt from the complaint and the exhibits annexed thereto that [Galdós-Shapiro’s] possession of “Gender Queer” was the motivating factor behind Storti’s and O’Brien’s alleged retaliation.
Finally, as to qualified immunity for the officers, the court is persuaded that it has long been clearly established that government agents cannot use “the power of the state to punish or suppress disfavored expression,” and therefore dismissal on qualified immunity grounds is not appropriate.
While Judge Mastroianni ruled that these allegations can proceed in court, he also ruled that Superintendent Dillon is entitled to qualified immunity against Galdós-Shapiro’s claim.
Judge Mastroianni writes:
[Galdós-Shapiro] has not pointed the court to “controlling authority or a consensus of persuasive authority sufficient to put the [superintendent] on notice that [his] conduct violated the law.”
Moreover, an objectively reasonable superintendent, confronted by the factual scenario alleged in the complaint, would not have understood that allowing police officers to enter the school to investigate [Galdós-Shapiro] and search her classroom would constitute a violation of her First Amendment rights vis-à-vis the school district.
Of Count Two, Judge Mastroianni writes:
Here, the complaint plausibly alleges Plaintiff was seized by [Officer] O’Brien. While there is no allegation O’Brien physically touched [Galdós-Shapiro] he closed the door to [Galdós-Shapiro’s] classroom and placed himself between [Galdós-Shapiro] and the exit and remained in front of the way out for the better part of the interaction O’Brien never informed Plaintiff she was free to leave. Instead, he told Plaintiff that he was turning on his body camera, before indicating he was there to investigate her possession of “Gender Queer”.
Having viewed this body camera footage, the court finds it is plausibly alleged that the circumstances of the interaction could support a factfinder in concluding an investigatory detention occurred.
Specifically, O’Brien’s reprimanding tone and reliance on inquisitorial statements, when considered in conjunction with his not indicating Plaintiff was free to leave, were consistent with a seizure. The interaction and its subject matter had accusatorial qualities which suggest a reasonable person in Plaintiff’s position would not feel that walking away from the situation was an option. This is especially true given that the police officer was accompanied by the principal of Plaintiff’s school, and the officer proceeded to ask questions strongly implying Plaintiff was responsible for distributing obscene images to children.
The complaint plausibly alleges a reasonable person in such a scenario would conclude that not only their liberty, but also their livelihood, would be threatened if they did comply with the officer’s request. Viewed in a light most favorable to Plaintiff, O’Brien’s alleged behavior and demeanor plausibly indicate the interaction was an investigatory detention.
Plaintiff, moreover, was compliant with O’Brien’s verbal show of authority, meaning it is plausible to infer her liberty was restrained and a seizure was effectuated under the Fourth Amendment.
Viewed in a light most favorable to Plaintiff, O’Brien’s alleged behavior and demeanor, and Plaintiff’s response thereto, plausibly indicate Plaintiff was seized under the Fourth Amendment.
By contrast, the allegations of the complaint fail to give rise to a plausible inference that Superintendent Dillon violated Plaintiff’s right to be free from an unlawful seizure of the person. The allegations essentially amount to an assertion that Dillon allowed an officer to go to the school, after the chief of police told him a classroom contained “pornographic illustrations,” and after an allegation that a teacher let students sit on her lap.
The complaint also affirmatively alleges Dillon was not told the name of the informant, rendering it impossible for him to step in and verify the informant’s bias. Dillon, moreover, is not alleged to have been familiar with Gender Queer. Nor is it plausible to infer that a school superintendent, when confronted by the local police department claiming an urgent need to enter the school, would do anything other than acquiesce to this show of authority. Even when viewed in a light most favorable to Plaintiff, these allegations do not allow the court to plausibly infer Dillon’s direct liability for the alleged violation of Plaintiff’s Fourth Amendment rights.
However, Judge Mastroianni dismissed Galdós-Shapiro’s claim of an unlawful search under Count Two:
…there are no well-pled factual allegations supporting an inference O’Brien searched those areas of the classroom entitled to a reasonable expectation of privacy. Rather, the complaint alleges O’Brien “looked” at Plaintiff’s “bookshelves,” then “rifled through papers and materials on Ms. Galdós-Shapiro’s desk and other classroom tables that housed, among other things, Ms. Galdós-Shapiro’s personal property, curriculum paperwork, and students’ work.”
Classroom bookshelves are not akin to drawers or file cabinets, as they are visible to all who enter the room. It is also widely understood students (or other faculty) will remove (and read) the contents of these shelves; this common understanding of a bookshelf’s purpose further underscores the lack of a reasonable expectation of privacy.
Judge Mastroianni adds:
Accordingly, Plaintiff has not plausibly alleged she was entitled to a reasonable expectation of privacy in the area searched by O’Brien. Count Two, in so far as it alleges an unlawful search, is therefore dismissed for failure to state a claim.
For Count Three, Galdós-Shapiro’s allegation that her 14th Amendment rights were violated, Judge Mastroianni writes:
Plaintiff alleges she is a member of two “suspect” classes on account of her sexual orientation and her Mexican American heritage. However, the First Circuit has explicitly declined to recognize sexual orientation as a suspect class for equal protection purposes. The court must adhere to this binding precedent.
Alienage, race, and nationality, on the other hand, are suspect classifications for purposes of the Equal Protection Clause.
But the complaint does not plausibly allege the actions of Defendants were taken because of their animus toward Mexican Americans. Rather, the allegations strongly indicate a belief she was subject to the allegedly discriminatory actions because of her sexual orientation which, as the court just explained, is not a recognized suspect classification.
Having failed to allege she was treated disparately due to her membership in a suspect class, Plaintiff must allege the existence of an appropriate comparator. In furtherance of this requirement, the complaint alleges:
“Other educators in the District similarly chose to place a copy of Gender Queer in their respective classrooms, including to address the important issue of gender identity and confronting opposition to the reality of that issue. At least one of those educators was a heterosexual, white man and none of those educators experienced the unlawful treatment which Ms. Galdós-Shapiro did…”
It further alleges the tipster “noted that other teachers were present during the alleged criminal acts, yet no attempts were made by the Defendants to obtain their identity, interrogate them, or search their classrooms.”
“In addition,” the complaint continues, “there were other teachers in the Middle School who housed “Gender Queer” in their classrooms that are not part of the LGBTQ+ community, were not associated with the GSA, and who identify as white, but at no point were their classrooms searched nor were they interrogated,” and “[d]espite this information being relayed to Officer O’Brien, he made no attempt to investigate those teachers or search their classroom as he did to [Plaintiff].”
The first allegation is insufficient to meet the comparator requirement, as the fact other educators in the school district had the book does not establish the requisite level of similarity. The second allegation is also insufficient because the complaint makes clear that O’Brien only questioned Plaintiff about the accusations relating to the book, not the other acts (such as lap-sitting).
The third allegation, however, plausibly supports an equal protection claim against O’Brien. The court plausibly infers that O’Brien was made aware of the book’s presence in other specific classrooms (of teachers who do not identify as LGBTQ), yet he made no efforts to identify or investigate those other teachers or classrooms and instead confined his investigation to Plaintiff and her classroom only. Viewing these facts in the light most favorable to Plaintiff and drawing all reasonable inferences in her favor, the court concludes that O’Brien’s actions in limiting the investigation to Plaintiff support an equal protection claim at this stage.
The court also concludes Plaintiff has pled a plausible equal protection claim against Storti. At the very least, even if the complaint has not plausibly alleged Storti was a “primary violator” of Plaintiff’s equal protection rights…it has alleged facts plausibly demonstrating supervisory liability.
Judge Mastroianni dismissed Galdós-Shapiro’s claim against Dillon under Count Three:
Unlike Storti, Superintendent Dillon was not O’Brien’s supervisor and did not direct the plan to have O’Brien confront Plaintiff in her classroom. Dillon merely agreed to allow the GBPD to go to the classroom and asked that Principal Wheat cooperate with the investigation.
Moreover, unlike O’Brien, Dillon did not conduct any investigation whatsoever. Accordingly, Dillon’s failure to investigate other similarly situated teachers who possessed Gender Queer in their classrooms—which Dillon would have no reason to know about—does not support an equal protection claims against him.
For Count Four, Galdós-Shapiro’s claim that her rights under the Massachusetts Civil Rights Act had been violated, Judge Mastroianni writes:
In the operative complaint, Plaintiff relies on the First and Fourth Amendments as the basis for the MCRA claim. Because a direct violation of Fourth Amendment rights does not amount to a violation of the MCRA, this claim is not viable to the extent it asserts a direct violation of the Fourth Amendment as the predicate.
However, to the extent the complaint alleges Storti and O’Brien retaliated against her, including by violating her Fourth Amendment rights, for possessing “Gender Queer”, the complaint states an MCRA claim, as retaliation for engaging in protected First Amendment activity is coercive under Massachusetts law.
As to Superintendent Dillon, on the other hand, the complaint does not plausibly allege he interfered with Plaintiff’s First Amendment rights through threats, intimidation, or coercion, as the allegations of the complaint do no more than establish he responded to what, he believed at the time, to be the legitimate requests of police officers.
Accordingly, the MCRA claim is dismissed as to Dillon, but will be allowed to proceed as to Storti and O’Brien to the extent it alleges they interfered with Plaintiff’s First Amendment rights through threats, intimidation, or coercion.
Judge Mastroianni dismissed Count Five, Galdós-Shapiro’s allegations that the defendants all engaged in an unlawful civil conspiracy:
Massachusetts law recognizes two forms of civil conspiracy: “concerted action” conspiracy and “true” conspiracy.
Plaintiff’s opposition indicates she is pursuing a concerted action theory of conspiracy liability.
The complaint does not plausibly allege conspiracy liability under either a common plan or substantial assistance theory. Plaintiff identifies two underlying torts, for which she seeks leave to include in her second amended complaint: defamation and intentional infliction of emotional distress.
However, as explained in more detail in the Motion to Amend section, the court concludes two of the three defamation theories as well as the intentional infliction of emotional distress claim are not viable.
That leaves only the defamation theory based on Storti’s issuance of the press release as a potential underlying tort.
But neither the operative complaint nor the proposed second amended complaint contain any allegations or plausible inferences suggesting that O’Brien or Dillon took actions which encouraged or assisted in the commission of that specific tort in any way.
Judge Mastroianni dismissed Count Six, which was Galdós-Shapiro’s claim that the defendants’ actions had caused her emotional harm.
The court concludes that, while Defendants’ conduct is troubling, it does not rise to the level of extreme or outrageous and utterly intolerable necessary to support an intentional infliction of emotional distress claim.
Plaintiff’s allegations simply do not meet the exceptionally high standard necessary to support intentional infliction of emotional distress claims. Accordingly, the court denies leave to amend to add the intentional infliction of emotional distress count.
Finally, as for Count Seven, Galdós-Shapiro’s claims of defamation by the defendants, Judge Mastroianni let the claim stand against Chief Storti for a press release he issued on December 16, 2023, but dismissed the count against Dillon.
…the proposed amended complaint alleges Chief Storti’s December 16, 2023 press release supports the defamation claim. The court is persuaded by Plaintiff’s arguments, as the allegation Plaintiff provided students a book “depict[ing] animated characters performing sexual acts on each other” was potentially defamatory.
Moreover, as alleged in the proposed complaint, Storti was aware on December 16 [2023] that the only student who ever took the book from Plaintiff’s classroom did so with parental permission. He was also allegedly aware the book was not simply a compilation of sexual acts but rather was a work of literary and artistic value. By phrasing the press release in the manner chosen by Storti, at this stage, it is plausible to construe he intended the release to imply Plaintiff was routinely exposing children to illustrated images of child sex acts.
In view of these allegations, as well as Storti’s alleged history of animus toward the presence of LGTBQ ideas in schools, the court further concludes the complaint plausibly alleges Storti acted with either knowing, reckless, or malicious intent when he published the press release, rendering the conditional privilege inapplicable at this stage of the case.
Accordingly, the court grants leave to add the defamation count, but only in so far as the count alleges Storti defamed Plaintiff through releasing the December 16 press release.
Judge Mastroianni ordered that Galdós-Shapiro update her lawsuit filing to conform with his rulings within 14 days of October 17.
On October 17, Galdós-Shapiro’s attorney, Benjamin Wish from the Boston law firm of Todd & Weld LLP, sent The Berkshire Edge a press release that quotes Galdós-Shapiro:
I am relieved to be able to seek justice for the harms I have suffered for simply owning a book that represents my family and so many cherished community members, as my lawsuit alleges. We should not have to live in fear of expressing ourselves about issues important to our lives.
