Massachusetts Chief Prevails in First Amendment Photo Case

A lawsuit brought by a Massachusetts firefighter unhappy with the fire chief for requiring his photo to be taken, has been dismissed. Thomas Swartz, a now-retired firefighter-paramedic with the Borne Fire Department, claims Fire Chief Norman Sylvester ordered him to pose for a photo, and suspended him without pay when he refused.

According to Swartz, his religious beliefs prevent him from having his photo taken under the circumstances because it would have constituted self-promotion. The suit filed in federal court in 2018 alleged that Chief Sylvester violated Swartz’s First Amendment right to the “free exercise” of religion.

The factual allegations in the case are somewhat confusing. In the original complaint, Swartz contended he was ordered to “participate in a group photograph” on May 2, 2016 that was not for “department identification, safety concerns, or accountability purposes.” Click here for my post on the original filing and to view the complaint. However, the ruling states that Chief Sylvester ordered Swartz to have an official fire department identification photo taken. The ruling does not explain the discrepancy between the complaint and the ruling.

Swartz, who claims he is a practicing Catholic, was unable to point to any basis in scripture or Catholic doctrine to support his position. Rather he claims it was his own interpretation of the First Commandment. Quoting from the decision, “When asked what his understanding of the First Commandment is, he testified, ‘I’m not going to qualify to you or to anyone else, I don’t feel the need to qualify what my understanding of the First Commandment is. I have a relationship.'”

The court concluded that Chief Sylvester is entitled to qualified immunity, and that:

  • “the undisputed facts show that Swartz’s rights under the Free Exercise [of Religion] Clause were not violated because (1) the order was neutral and generally applicable… ; and (2) there was a rational basis for enforcement of the policy.”
  • [T]here is no evidence that Sylvester’s statement that the photographs would be used for “accountability” and “identification” was made falsely or with an intent to mislead.
  • In summary, there is no genuine dispute that, in the particular factual context of this case, a reasonable officer would not have understood the conduct violated Swartz’s right to free exercise of religion.
  • Accordingly, Sylvester is … entitled to qualified immunity on that basis, and therefore, to summary judgment on Count One.

Swartz made an additional state law claim under the Massachusetts wage payment law, but the court declined to exercise jurisdiction over that count. As a result, Swartz may refile the state law claim in state court.

Here is a copy of the complaint:

About Curt Varone

Curt Varone has over 40 years of fire service experience and 30 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.

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