In January, I posted a piece about Jeffrey Heffernan’s strange lawsuit against the city of Patterson, New Jersey.  I compared the facts in the lawsuit to a “Curb Your Enthusiasm” episode.  The incumbent mayor of Patterson had Heffernan fired from the force because he’d seen Heffernan carrying a sign for the mayor’s opponent in the upcoming election.  But Heffernan was merely picking up the sign for his bedridden mother.   

The decision to fire a public employee for exercising his First Amendment rights is unlawful.  And Heffernan was fired based on the mayor’s perception that Heffernan was doing exactly that.   

But Patterson argued that since Heffernan wasn’t actually exercising his First Amendment rights, his firing in reality couldn’t be attributed to any protected activity, and therefore his lawsuit should be dismissed.  Do you follow? Apparently, the U.S. Court of Appeals did, because it agreed with the city and held Heffernan’s suit should be dismissed.   

Just this week, the United States Supreme Court weighed in and ruled in Heffernan’s favor in a 6-2 opinion (the Court is playing short- handed right now).  The majority determined that the key issue was the government’s motive, even if the government didn’t exactly have its facts straight.  That is, if the government set out to retaliate, and an employee was harmed as a result, that really should be enough.  As the majority noted, “the constitutional harm – discouraging employees from engaging in protected speech or association – is the same whether or not the employer’s action rests upon a factual mistake.”  And that seems like the proper way to rule.  

Justices Thomas and Alito, however, felt differently, finding that in the absence of protected activity, there can be no retaliation for engaging in protected activity.  That seems theoretically sound, I guess. But Officer Heffernan wasn’t theoretically fired.  That was real.  And he is entitled to real relief.