Justices to Review Police Officer's Free Speech Claim

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By Hassan Kanu
Oct. 1 — Granting the petition of a Paterson, N.J., police officer, the U.S. Supreme Court Oct. 1 agreed to review if the officer's First Amendment rights were violated when he was demoted based on a supervisor's perception about his political preferences (Heffernan v. City of Paterson, U.S., No. 14-1280, cert. granted 10/1/15).

The justices will review a U.S. Court of Appeals for the Third Circuit decision that Jeffrey Heffernan had no triable First Amendment retaliation claim based on his supervisor's mistaken perception that he was supporting a former police chief's bid against the incumbent mayor (15 DLR AA-1, 1/23/15). The appeals court said Heffernan didn't exercise his free speech or association rights because he wasn't actually an active supporter of the opposition candidate and therefore can't prove that he engaged in protected activity under the First Amendment.

In seeking review, Heffernan argued that being penalized based on perceived political association also triggers constitutional protection. He asked the justices to address whether the First Amendment bars governments from demoting a public employee based on a supervisor's perception of the employee's political affiliations.

Lower Court Ruling Could Have ‘Chilling Implications.'

Public employers can't take an adverse employment action, such as a demotion or negative performance review, based on a public worker's political affiliations or support.

In rare cases, a position may require a public employee's loyalty to his or her superiors for efficient governance, as in the case of some principals and school district superintendents. Those workers are considered “political employees.”
Governments can limit political employees' constitutional rights to free speech and affiliation to a greater degree. By contrast, “nonpolitical” workers are free to privately or publicly support any candidate, or none, without fear of retaliation.

In his petition, Heffernan argued that review is warranted because the Third Circuit's decision in his case will “chill [or deter] actual political participation on the part of countless other public employees.”

“In the Third Circuit, a supervisor is now free to demote or even fire a public employee based on the supervisor's perception of the employee's political affiliation, so long as the supervisor's perception is incorrect,” Heffernan said. “[P]ublic employees in the Third Circuit now have reason to fear taking any action that might cause them to be perceived—even incorrectly—as favoring a candidate or a political party.”

Under the decision, any public employee can legally be fired “because her supervisor incorrectly believes that she is a Democrat or a Republican,” he said. Employees would have to worry about doing almost anything that may leave the boss with the wrong impression, Heffernan said. A political affiliation may be ascribed to someone based on what media outlets they pay attention to, jokes they tell or their preferences in cars and music, he said.

A rule with such bizarre and “chilling implications” for millions of government workers is incorrect, he argued.
Resolution to Purported Circuit Split Necessary

Heffernan said there is a 3-1 split on the issue of perceived political affiliation among federal courts of appeal and that the high court should create uniformity and resolve the issue in his favor.

“In the First, Sixth, and Tenth circuits, a government employee may not be demoted on the grounds of his political affiliation, even if the supervisor is mistaken in ascribing political affiliation to the employee,” he said. “The rule is different in the Third Circuit, where the supervisor is immune from liability if he is mistaken.”

The First, Sixth and Tenth circuits reasoned that the inquiry should focus on the employer's motives, and whether those were impermissible, rather than the employee's particular conduct.

Heffernan said the Sixth and Third circuits have explicitly rejected the other's view.

The Sixth Circuit said in Dye v. Office of the Racing Commission , 34 IER Cases 1230, 702 F.3d 286 (6th Cir. 2012), that the “Third Circuit, however, has rejected a perceive-support theory” in First Amendment cases. It went on to say that the Third Circuit's decision rested on a “disingenuous” application of precedent, deciding to “adopt the reasoning of the First and Tenth Circuits,” Heffernan observed.

He added that the district court judge in his case acknowledged the purported split when he declined to overturn the decision, saying that he was bound to follow the Third Circuit, which hasn't allowed a perceived-support theory in First Amendment retaliation cases.

Issue Isn't Ripe for High Court Intervention

The city, mayor and police chief argued in their opposition brief that there is no actual circuit split and that it would be premature for the high court to intervene.

The decisions that Heffernan cited are cases involving “a public employer who punishes employees because of their political neutrality,” the city argued. It asserted that such “political neutrality” cases are distinguishable from one where a worker is punished based on a supervisor's mistaken belief of his political affiliations.

A “First Amendment retaliation claim depends upon the exercise of a First Amendment right, because the First Amendment protects not only the right to speak and to associate, but also the right to not speak and to not associate,” the opposition brief said.

Thus a worker punished for not supporting a boss's candidacy or that of someone the boss supports has a claim. But those protections do not extend to a worker who didn't actually exercise any of these rights, even if a supervisor thinks they did, the city argued.

It added that “every court of appeals to consider the question” has held that a free-speech retaliation claim is actionable only where the adverse action “was prompted by an employee's actual, rather than perceived, exercise of constitutional rights.”

In his response, Heffernan cited several cases acknowledging the purported split, saying that “all courts and commentators to address the issue after Dye” have explicitly stated that there is indeed a split.

Heffernan said the cases he cited alleged both the plaintiff's neutrality and the employer's mistaken belief, adding that “[s]peech and association are governed by different doctrinal frameworks and different bodies of precedent.”
Mark B. Frost & Associates represented Heffernan. Lite DePalma Greenberg, LLC and McElroy Deutsch Mulvaney & Carpenter represented the city and individual defendants.

To contact the reporter on this story: Hassan Kanu in Washington at hkanu@bna.com
To contact the editor responsible for this story: Peggy Aulino at maulino@bna.com

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