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April 26 — A Paterson, N.J., police officer demoted because of his perceived support for the mayor's rival in an election may pursue a First Amendment retaliation claim, a divided U.S. Supreme Court ruled.
In a 6-2 decision, the court April 26 reversed a U.S. Court of Appeals for the Third Circuit ruling that Jeffrey Heffernan lacked a constitutional claim because he hadn't actually engaged in any political speech or association.
Heffernan's supervisors' mistaken belief he was supporting the incumbent mayor's rival and his demotion on that basis are sufficient to raise a First Amendment retaliation claim under the Civil Rights Act of 1871 (42 U.S.C. §1983), Justice Stephen Breyer wrote for the majority. A public employer's motivation is pivotal in determining if an employee has a triable First Amendment claim, the court said.
“When an employer demotes an employee out of a desire to prevent the employee from engaging in activity that the First Amendment protects, the employee is entitled to challenge that action” under Section 1983 “even if, as here, the employer makes a factual mistake about the employee's behavior,” Breyer wrote.
The decision is a victory for public employees that should give public employers pause about restricting their workers' political activity. If a public employer acts with the intent to deter First Amendment-protected activity, it could be liable for damages for harming employees it mistakenly believes engaged in such conduct.
Chief Justice John Roberts and Justices Anthony Kennedy, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan joined in the majority opinion.
In dissent, Justice Clarence Thomas said nothing in Section 1983 “provides a remedy against public officials who attempt but fail to violate someone's constitutional rights.” Heffernan's failure to engage in protected speech or association dooms his First Amendment claim, even if the city had a retaliatory motive, the dissent said.
Heffernan contended he was demoted from police detective to foot patrol within days after a member of the incumbent mayor's security detail saw him picking up a campaign sign for the mayor's electoral opponent. But Heffernan said he had no interest in the election and was picking up the yard sign as a favor for his ailing mother, who did support the rival candidate.
“Demoting a dutiful son who aids his elderly, bedridden mother may be callous, but it is not unconstitutional,” Thomas wrote in an opinion joined by Justice Samuel Alito.
The majority opinion's rationale was “essentially what we argued,” said Mark Frost, the Philadelphia lawyer who represented Heffernan.
The main point is that if a government employer mistakenly perceives “you’re engaged in protected activity and acts on that basis,” then the employee has First Amendment protection, Frost told Bloomberg BNA April 26.
Focus on the employer's motivation is “really a common-sense argument,” Frost said. If Heffernan and a fellow police officer both were observed holding campaign signs, and the city demoted both employees, it makes sense the city should be liable to both, regardless of whether the government made accurate assumptions about their political affiliations, he said.
Paterson on remand possibly could support its demotion of Heffernan if it relied on a neutral policy that police officers aren't supposed to engage in overt political activities, the court said.
But Frost said no such policy exists and that the police chief in a deposition testified Heffernan was demoted because of his supposed support for the mayor's rival.
The case now can go to trial if the city wants that, but “liability has already been determined,” Frost said. Heffernan has retired from the Paterson police force and now works outside law enforcement, he said.
It's significant that in addition to discussing the employer's motivation, the majority also talked about the constitutional implications of a contrary rule, said Meghan Boone, a Georgetown University Law Center clinical instructor.
If the court had accepted the argument that a factual mistake about an employee's political affiliation excuses an employer from Section 1983 liability, that could have “very practical negative consequences” of chilling employees' speech, Boone told Bloomberg BNA April 26.
The court was “smart to focus on motivation” as the “crux” to determine if free speech rights may be abridged by an employer's action, said Boone, who contributed to an amicus brief filed by the National Association of Government Employees. The burden placed on employees to prove motivation, plus the unusual factual scenario in Heffernan's case, suggest the decision won't cause a flood of litigation, she said.
But a ruling in the city's favor could have allowed public employers to “game the system” in ways harmful to employees' rights, Boone said.
In affirming summary judgment for Paterson, the Third Circuit said a free-speech retaliation claim is actionable under Section 1983 “only when the adverse action at issue was promoted by an employee's actual, rather than perceived exercise of constitutional rights” (15 DLR AA-1, 1/23/15).
But other federal circuit courts have allowed First Amendment retaliation claims based on a public employee's perceived political activities or affiliation to proceed. The Supreme Court Oct. 1 granted Heffernan's petition for review (190 DLR AA-2, 10/1/15).
At a Jan. 19 oral argument, the Justice Department as an amicus joined Heffernan in urging the court to reverse the Third Circuit (11 DLR AA-1, 1/19/16).
The Constitution generally prohibits a government employer from firing or demoting an employee because he supports a particular political candidate, Breyer wrote. Assuming the exceptions to that rule don't apply in Heffernan's case, the court said the issue is whether a public employer who acts on the mistaken belief an employee is supporting a particular candidate also may be liable.
Neither Section 1983's text nor Supreme Court precedent “directly answer” that question, Breyer said. The most relevant prior decision is Waters v. Churchill, 511 U.S. 661, 9 IER Cases 801 (1994), which held that a public employer's reasonable but mistaken belief that a fired employee hadn't engaged in protected speech was sufficient to shield the employer from Section 1983 liability.
“In a word, it was the employer's motive, and in particular the facts as the employer reasonably understood them, that mattered,” Breyer wrote.
Applying that principle to Heffernan's case, in which the city mistakenly believed he had engaged in protected speech, supports the conclusion that Paterson may be liable, the court said. Looking at motive cleared the employer in Waters, but cuts against Paterson. “After all, in the law, what is sauce for the goose is normally sauce for the gander,” Breyer wrote.
The First Amendment's text focuses on the government's activity and bars prohibited actions that harm individuals, the court said. “The government acted upon a constitutionally harmful policy whether Heffernan did or did not engage in political activity,” Breyer wrote.
Also, a rule that excuses the employer would deter the government from adopting policies that chill employees' protected activity, the court said. “The discharge of one tells the others that they engage in protected activity at their peril,” the court said.
Whether a public employer's belief that an employee has engaged in protected activity is true or not, the harm to First Amendment protections occurs, the court said.
“The upshot is that a discharge or demotion based upon an employer's belief that the employee has engaged in protected activity can cause the same kind, and degree, of constitutional harm whether that belief does or does not rest upon a factual mistake,” Breyer wrote.
A rule finding Section 1983 liability despite the employer's factual mistake won't impose “significantly extra costs” on the employer, the court said. If anything, such a rule may make it “more complicated and costly” for the employee to prove his case, the court said.
But an employee filing a Section 1983 lawsuit “will ordinarily shoulder that more complicated burden” to recover the damages he seeks, the court said.
It's possible Paterson officials demoted Heffernan for breaching a “different and neutral policy” barring police officers from overt involvement in political campaigns, Breyer noted. But “whether that policy existed, whether Heffernan's supervisors were indeed following it, and whether it complies with constitutional standards” are issues for the lower courts to decide on remand, he said.
But the dissent said Heffernan can't raise a First Amendment retaliation claim, regardless of how he frames the case. A contention that the city interfered with his freedom to speak and assemble falls short because Heffernan admitted he didn't engage in any political speech or association, the dissent said.
Heffernan pursued “a second, more novel framing” that a public employer can be liable under Section 1983 even if an employee didn't engage in protected activity, the dissent said.
But Section 1983 doesn't provide a cause of action for “unauthorized government acts” that don't infringe on an individual's constitutional rights, the dissent said.
The city's demotion of Heffernan “may be misguided or wrong,” but because he didn't exercise any First Amendment rights, he can't pursue a Section 1983 claim, Thomas wrote.
Thomas Goldstein of Goldstein & Russell in Bethesda, Md., represented Paterson. Assistant to the Solicitor General Ginger Anders represented the Justice Department.
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Text of the opinion is available at http://www.bloomberglaw.com/public/document/Heffernan_v_City_of_Paterson_No_141280_2016_BL_131602_US_Apr_26_2.
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