A public sector employee may now have a First Amendment and 42 U.S.C. § 1983 claim even where the public sector employee has not engaged in protected First Amendment political activity. This may be the case if a public employer’s factual mistake leads it to conclude that the employee was engaged in First Amendment activity.
In Heffernan v. City of Paterson, No. 14-1280, 578 U.S. ___ (2016) (slip. op.), the U.S. Supreme Court held that Jeffrey Heffernan, a police officer in Paterson, New Jersey, could pursue a claim that he was deprived of a constitutional right when he was demoted because of his supervisors’ mistaken perception that Heffernan supported a rival mayoral candidate. The Supreme Court, in a 6-2 decision authored by Justice Breyer, reversed the Third Circuit U.S. Court of Appeals’ decision in favor of the city.
Heffernan Disciplined Based on His Supervisors’ Factual Mistake
At the time of Heffernan’s demotion, Mayor Jose Torres was running for reelection against Lawrence Spagnola, a former Paterson police chief. Heffernan was a personal friend of Spagnola, but Mayor Torres had appointed the city’s police chief, James Wittig, and Heffernan’s direct supervisor, Michael Walker, to their positions.
Heffernan, while off duty, picked up a Spagnola campaign sign at the request of his mother, who was going to display the sign herself. When Heffernan picked up the sign, he spoke with Spagnola’s campaign manager and staff. Other police officers saw this activity, and word spread throughout the department. One of Heffernan’s supervisors confronted him, and Heffernan tried to explain he picked up the sign for his mother. Nevertheless, the day after Heffernan picked up the sign, he was demoted from detective to a patrol officer with a walking post.
Heffernan Sues the City
Heffernan filed a lawsuit in the United States District Court for the District of New Jersey alleging a retaliatory demotion based on his exercise of the right to freedom of speech and freedom of association. Heffernan’s claim was based on the U.S. Constitution’s provision that prohibits a government employer from discharging or demoting an employee because the employee supports or speaks about a particular political cause.
After losing at the district court level, Heffernan appealed. The U.S. Court of Appeals for the Third Circuit likewise rejected Heffernan’s freedom of speech and freedom of association claims. The Third Circuit found that Heffernan did not exercise a First Amendment right. It also rejected Heffernan’s “perceived support” theory that he was demoted because his supervisors mistakenly thought he was involved in First Amendment activity. Heffernan never contended he actually worked on the campaign. Throughout the case, Heffernan consistently maintained that he did not consider himself politically involved with Spagnola’s campaign. The Third Circuit declined to eliminate what it called a “traditional element” of a First Amendment retaliation claim – the requirement that a plaintiff actually exercise a First Amendment right.
The U.S. Supreme Court Rules in Favor of Heffernan
On appeal to the U.S. Supreme Court, the Court considered whether Heffernan’s perceived support theory was viable. In other words, the Court considered whether the demotion deprived Heffernan of a “right . . . secured by the Constitution.”
The Court recognized the lack of precedent on this question. In nearly all prior First Amendment cases, there were no mistaken beliefs by public employers. In prior cases, the Court’s inquiry was squarely focused on determining whether the employee’s admitted speech was as a citizen on a matter of public concern and, if so, how to balance that speech with an employer’s interests in limiting speech to promote efficiency.
In Heffernan, the Court assumed for the purposes of its decision that Heffernan’s supervisors perceived him to have “overt involvement” in Spagnola’s campaign, which would have been constitutionally protected if he had actually participated in Spagnola’s campaign. This allowed the Court to focus solely on the employer’s motive and the facts as the employer understood them.
The Court concluded that the city’s factual mistake did not diminish the potential constitutional harm of discouraging employees from engaging in protected activities. The Court held that if a public employer takes action against a public employee because of what the employer perceives to be First Amendment political activity (whether the public employer is correct or mistaken), the employee can challenge the unlawful action.
Having concluded that the city’s mistaken beliefs about Heffernan’s conduct could be sufficient to support his constitutional claim, the Court remanded Heffernan’s case to the lower court to determine whether the police department’s demotion of Heffernan could have been lawful under a different, neutral policy. The lower courts will determine whether the department has a neutral policy prohibiting police officers from any overt involvement with political campaigns, whether Heffernan’s supervisors followed such a policy and whether such a policy complies with constitutional standards.
Bottom Line for Public Employers
For public employers, the Heffernan decision is especially relevant during the ongoing election season, and on an ongoing basis when many employees can be expected to use social media regarding various political issues. The case serves as a reminder that public employees are protected by the First Amendment and that before issuing any discipline, a public employer must consider whether the employee’s actions raise First Amendment concerns. Based on Heffernan, the protection of the First Amendment can be triggered for both actual and perceived First Amendment activities.