SCOTUS Holds That First Amendment Retaliation Case May Continue, Despite Employer’s Incorrect Belief that Employee Engaged in Protected Political Activity

In Heffernan v. City of Paterson, No. 14-1280 (decided April 26, 2016), the U.S. Supreme Court reversed a circuit court decision that affirmed the dismissal of a police officer’s First Amendment retaliation case arising from his punishment for engaging in what was (incorrectly) perceived as protected political activity. Justice Breyer authored the opinion; Justices Thomas and Alito dissented.

Justice Breyer began by concisely stating the facts, issue, and holding:

In this case a government official demoted an employee because the official believed, but incorrectly believed, that the employee had supported a particular candidate for mayor. The question is whether the official’s factual mistake makes a critical legal difference. Even though the employee had not in fact engaged in protected political activity, did his demotion “deprive” him of a “right . . . secured by the Constitution” [within the meaning of] 42 U. S. C. § 1983[?] We hold that it did.

The (simplified) facts:

In 2005, Jeffrey Heffernan, the petitioner, was a police officer in Paterson, New Jersey. He worked in the office of the Chief of Police, James Wittig. At that time, the mayor of Paterson, Jose Torres, was running for reelection against Lawrence Spagnola. Torres had appointed to their current positions both Chief Wittig and a subordinate who directly supervised Heffernan. Heffernan was a good friend of Spagnola’s. During the campaign, Heffernan’s mother, who was bedridden, asked Heffernan to drive downtown and pick up a large Spagnola sign. She wanted to replace a smaller Spagnola sign, which had been stolen from her front yard. Heffernan went to a Spagnola distribution point and picked up the sign. While there, he spoke for a time to Spagnola’s campaign manager and staff. Other members of the police force saw him, sign in hand, talking to campaign workers. Word quickly spread throughout the force. The next day, Heffernan’s supervisors demoted Heffernan from detective to patrol officer and assigned him to a“walking post.” In this way they punished Heffernan for what they thought was his “overt involvement” in Spagnola’s campaign. In fact, Heffernan was not involved in the campaign but had picked up the sign simply to help his mother. Heffernan’s supervisors had made a factual mistake.

The law provides:

With a few exceptions [assumed not applicable here], the Constitution prohibits a government employer from discharging or demoting an employee because the employee supports a particular political candidate. The basic constitutional requirement reflects the First Amendment’s hostility to government action that prescribe[s] what shall be orthodox in politics.

Applying the law, and analogizing the facts here to those of Waters v. Churchill, 511 U. S. 661 (1994), the Court concluded:

[T]he government’s reason for demoting Heffernan is what counts here. When an employer demotes an employee out of a desire to prevent the employee from engaging in political activity that the First Amendment protects, the employee is entitled to challenge that unlawful action under the First Amendment and 42 U. S. C. §1983—even if, as here, the employer makes a factual mistake about the employee’s behavior. … The Government acted upon a constitutionally harmful policy whether Heffernan did or did not in fact engage in political activity. That which stands for a “law” of “Congress,” namely, the police department’s reason for taking action, “abridge[s] the freedom of speech” of employees aware of the policy. And Heffernan was directly harmed, namely, demoted, through application of that policy.

The Court based its decision on the assumption “that the policy that Heffernan’s employers implemented violated the Constitution.” It noted that “[w]hether that policy existed, whether Heffernan’s supervisors were indeed following it, and whether it com-plies with constitutional standards, are all matters for the lower courts to decide in the first instance.”

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