SHIRLEY -- On February 14, 2013, ACLU pro bono attorneys Nick Leitzes and Kurt Wm. Hemr, of Skadden, Arps, Slate, Meagher & Flom LLP, and Matthew R. Segal and Laura Rótolo, of the ACLU of MA, filed a civil rights action v. Town of Shirley, Massachusetts, et al. in U.S. District Court, District of Massachusetts.

The introduction to the action reads, "This is a civil rights action for the unlawful banishment of plaintiff Robert Schuler, a public official in Shirley, Massachusetts, from all Shirley town property. Purportedly in reaction to statements Mr. Schuler made as a member of the town's Finance Committee, Defendants issued a Notice of Trespass barring Mr. Schuler from the town's structures and lands, depriving him of his constitutionally protected rights to free speech, to petition the government, and to due process."

Schuler has not entered a town-owned building since the order was issued in May 2011, and as a member of the Finance Committee and Sewer Commission, he has been able to participate only by conference call. As an appointed and elected official, respectively, he is permitted to vote, but his remote presence does not count toward a quorum on either board.

The defendants named in the case are former selectman Armand Deveau, selectmen David Swain and Kendra J. Dumont, the town of Shirley, and the town's former Chief Administrative Officer, David Berry.


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Video Evidence

"From time to time," reads the case filing, "Mr. Schuler has criticized Defendants for failing to address serious issues of public concern involving Shirley.

"In 2011, the town faced a difficult budgetary process. The town's budget deficit had soared to several hundred thousand dollars, and the Selectmen were required by law to finalize and make public a proposed budget two weeks prior to a town meeting to be held on June 6. As the deadline approached, Mr. Schuler criticized the Selectmen's inaction during Financial Committee meetings."

At a meeting on May 2, 2011, Schuler stated that he would "pull my gun out and start shooting or something" if the defendants persisted in failing to address the budget.

"A video taken at the meeting," reads the complaint, "demonstrates that Mr. Schuler's remarks were not intended to be taken seriously. Indeed, nobody present at the meeting expressed any concern about those remarks."

No basis, says attorney

Attorney Leitzes, reached at his office on Monday, stated that there was no basis for the defendants to have issued the no trespass order in the first place, and that the order was so broad that Schuler was unable to do the things he needed to do, such as conduct business in the town offices, attend meetings, and vote in person.

Leitzes said that the complainants "made a big point in showing the judge the video" of the May 2 Finance Committee meeting at which Schuler made the alleged threat.

"We argued that it was hyperbole, and no one there (at the meeting) took him seriously; he was just venting," Leitzes said.

The video can be viewed at http://aclum.org/schuler.

Unilateral withdrawal of no trespass order

"At this point, we went before the judge for the sole purpose of scheduling, and the defense counsel said 'give me a little more time,' and the selectmen unilaterally decided to lift the (no trespass) notice without asking for conditions about two weeks ago," Leitzes said.

"They lifted the notice, withdrew it, and at this point we are still hammering out a settlement," he said. "After we filed the motion, they lifted the notice, but the terms of the settlement are still under negotiations, so we have temporarily put off a response, but have not withdrawn the litigation."

Per an apology to Mr. Schuler or any monetary award from the town or the individual defendants, Leitzes said he expects the defendants to ask for a confidentiality agreement, but that there are no terms as of yet.

He said he would probably have more information by week's end, but that if there are compensatory damages paid, any confidentiality agreement, once agreed upon, would prohibit him from offering any details

"By the end of this week we may know something. I will say that, as much as I would love to give you the terms of the settlement, they are going to ask for terms of confidentiality, so I'm not sure the degree at which I will be at liberty to discuss the case."

At the selectmen meeting Monday night, Chairman Kendra Dumont refused to comment on the case. As for how much of the town's $25,000 annual legal budget has been spent on attorney's fees related to the litigation, the answer was "none" because it is covered by insurance.