The Cambridge Fire Department’s Philip Arsenault and police officer Dan McGinty seen in a video filmed Sept. 29, 2018, at UpperWest, a restaurant open at the time in North Cambridge.

Cambridge and state officials were rebuked in a ruling by the state’s Appeals Court on Monday over a case they pursued “on error of law” and over a comment that was never uttered. 

The city and state’s case against the UpperWest restaurant and wine bar was fought for a time with the help of the Massachusetts ACLU because the organization deemed it “unconstitutional under the First Amendment and state constitution,” but the win belongs to the owners of the long-closed UpperWest, who fought on through the appeals win without the organization’s help.

The case began Sept. 29, 2018, when police and firefighters disrupted business at the restaurant, then on Cedar Street in North Cambridge, to enforce a law they claimed existed against the use of candles. The state Alcoholic Beverages Control Commission was later forced by Cambridge officials’ court testimony to acknowledge that there was no such law.

Yet UpperWest got a three-day suspension from Cambridge’s License Commission because the owners argued correctly to the Cambridge officials that they were trying to enforce a made-up law. The allegation became a potential black mark for owners Kim Courtney and Xavier Dietrich they had “threatened” fire inspectors and therefore intimidated witnesses, albeit in a legal action that didn’t exist at the time.

The Appeals Court on Monday made short work of the attempt to punish Courtney and Dietrich for being correct, which had made it all the way to the state Superior Court in 2021. That’s where assistant attorney general Eric Haskell made an astonishing attempt to link the case to the Commonwealth v. Carter ruling from 2017, in which a teen was convicted of encouraging her suicidal boyfriend by text to take his own life. “It really wasn’t a calm, reasoned exchange of ideas,” Haskell told the judge during a virtual hearing, referring to a confrontation at UpperWest. “It was an argument,” and therefore was “speech that basically functions as conduct.”

Though Suffolk Superior Court judge Christine M. Roach agreed with most of the officials’ arguments, the Appeals Court did not, ordering a reversal at that court “because the commission’s decision was premised on error of law” and because “we do not accord deference to ‘an incorrect interpretation of a statute,’” the three-judge panel said, citing precedent.

“There is no dispute that Courtney’s statement was taken as nothing other than an intention to file a complaint against the conduct of government officials. No matter how aggressive the tone, the statement does not constitute a ‘true threat’ which may deprive it of First Amendment protection,” the judges said. “An individual’s right to complain against its government cannot be denied under a theory that the lawful complaint somehow threatens or intimidates a government official; the statement at issue here is a classic example of protected speech.”

Words heard in no recording

What’s more, the Appeals Court used a footnote to chide city state officials for prosecuting a case on words that were never said – and city officials for fomenting it and, by extension, the courts for allowing it.

“On the video, Courtney states, ‘You guys are gonna regret behaving this way; this is not how this works.’ Nevertheless, the ABCC credited the officials’ testimony that Courtney said, ‘You will live to regret this,’ even though [it was] not found in any recording,” the Appeals Court said, rejecting claims that a phrase quoted repeatedly by officials may somehow have been uttered at some other time and not recorded.  

“The charges of intimidation and threats cannot be sustained,” said the Appeals Court panel made up of associate justices William J. Meade, Sabita Singh and Paul Hart Smyth.

Constitutional case

The Cambridge License Commission in 2019. (Photo: Marc Levy)

In an email Monday, Courtney and Dietrich said that “although we are pleased with the appellate decision in our favor, it is outrageous that it took us six years and three appeals to be vindicated on all charges against us. The law was always clear that we all have a constitutional right to challenge the government.”

Ruth Bourquin, senior and managing attorney at the ACLU of Massachusetts, said the organization was “pleased that the Appeals Court recognized the validity of the free speech argument we had emphasized.”

The state had also argued that Courtney and Dietrich shouldn’t be able to appeal because their restaurant was closed Nov. 13, 2019, making the case “moot.” But the Appeals Court rejected that argument as well, since a ruling would affect Courtney and Dietrich if they looked to open another restaurant. Courtney, a lawyer, would also have to explain a charge to a state bar when pursuing a license to practice. And issuing a threat is a criminal charge with a statute of limitations.

Cambridge’s police commissioner at the time, Branville G. Bard Jr., agreed as part of the License Commission board that Courtney and Dietrich should be punished, and he refused to answer on what legal basis a police official issued a punishment for a non-physical threat covered by the First Amendment. He never answered.

“Sad we had to go this far”

Officials and legal counsel with the City of Cambridge and Alcoholic Beverages Control Commission were asked Monday to comment on the case and whether they planned to appeal their loss to the Supreme Judicial Court in Massachusetts. There was no immediate reply from the city. Ralph Sacramone, executive director of the ABCC, said the decision was under review, but that he couldn’t comment further.

“It’s really sad we had to go this far – through three levels of courts,” Dietrich said by phone on Monday. “Most people wouldn’t be able to do this. How many cases are out there where people are just getting trampled?”

“The average business owner can’t defend themselves,” Courtney said.

One lawsuit follows another

Courtney and Dietrich no longer live in Cambridge, but Courtney’s law practice has a case pending against the city. She represents several business owners who say they paid hundreds of thousand of dollars to comply with incorrect License Commission guidance on what licensing they needed to operate. 

The lawsuit, called Linnane v. City of Cambridge, was filed July 6, 2018. Fire inspectors began showing up at UpperWest less than a month later – Aug. 3, 2018 – to say the tea light candles Courtney and Dietrich had set out were dangerous and broke the law. The law they pointed to was about portable cooking equipment.

But citing an irrelevant statute was enough to start a legal clash that has lasted more than five and a half years.