(CN) - In September 2007, after an off-duty police officer in Revere, Massachusetts was shot and killed, a man named Derek Lodie was arrested in connection with the officer's death. In response, supporters of Lodie put up lawn signs reading "Free Lodie."
Nine days after shooting, officers participated in the city's annual Columbus Day parade and saw Michael Picardi wearing a "Free Lodie" T-shirt. Officer William Cianciarusso allegedly lost his temper and assaulted Picardi, while other officers stood by.
When Picardi told his stepfather, Pat Starkey, what happened, Starkey told his stepson that people do not get assaulted just for wearing a T-shirt and exchanged shirts with Picardi in order to prove his point.
Shortly afterward, he ran into Cianciarusso, who punched him in the face without warning, according to the Starkey's complaint. Cianciarusso is not named as a defendant.
Cianciarusso then pulled out his weapon and pointed it at Starkey. Starkey, who was carrying a licensed concealed weapon, immediately informed the officer that he had a weapon.
Meanwhile, Starkey's wife ran to inform another officer, Marc Birritteri, that a man with a gun was assaulting her husband. Birritteri spoke with Cianciarusso, who lowered his weapon and said, "Look at his f**king shirt!"
When Starkey complained that Cianciarusso assaulted him, Birritteri allegedly pulled Starkey's arm, causing both men to spin around, trip over a curb and fall down together.
Birriterri then stood up, drew his service weapon, told him to put his hands up and stood by while Cianciarusso kicked Starkey in the head and face, Starkey claims. Another unnamed officer came over and ripped off Starkey's "Free Lodie" shirt and confiscated his weapon.
Birriterri charged Starkey with assaulting an officer and resisting arrest, but a jury acquitted Starkey on all charges, and Starkey sued the officer in federal court.
On Tuesday, U.S. District Judge Rya W. Zobel denied Birritteri's partial motion to dismiss, finding that "Starkey has alleged that Birritteri subjected him to an unfounded prosecution solely in order to suppress his future speech; those factual allegations support finding a First Amendment violation."
However, the judge found that Birritteri was entitled to qualified immunity on Starkey's Second Amendment claims.
"Starkey claims that the malicious prosecution deprived him of his Second Amendment rights because his firearm, magazines, ammunition, and holster were seized and his license to carry a firearm was suspended while the criminal case was pending. He also notes that the firearm, magazines, and ammunition went missing and were never restored. However, Starkey cites no authority to show it was clearly established law that Birritteri would violate his Second Amendment rights by subjecting him to a malicious prosecution that incidentally deprived him of his right to carry a firearm."
However, Zobel granted Starkey permission to file an amended complaint to add more specific Second Amendment allegations.
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