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The Case of Mistaken Retaliation: Demoted Cop Can Sue Chief

By Casey C. Sullivan, Esq. | Last updated on

When Jeffrey Heffernan, a police officer in Paterson, New Jersey, was spotted with a campaign sign for his mayor's political challenger, he was quickly demoted, as punishment for his "overt involvement" in the opponent's campaign. Heffernan sued, arguing that the demotion violated his First Amendment rights. And he would have had a fairly straight-forward case, except for one complication. Heffernan hadn't been involved in the opponent's campaign. Not at all. He'd just been picking up a sign for his bedridden mother.

Could he sue for a violation of a constitutional right he hadn't actually exercised? Yes, the Supreme Court ruled today, finding that employees who have been punished in order to prevent them from engaging in protected political activity can sue, even when the employer's actions were based on a mistaken understanding of the employee's behavior.

The Free Speech That Wasn't

In 2005, Heffernan worked as an officer in the office of Paterson's Chief of Police, James Wittig. Wittig had been appointed by mayor Jose "Joey" Torres, as had Heffernan's direct supervisors. And Torres was in the middle of a heated election campaign, facing a challenge by Lawrence Spagnola, a close friend of Heffernan's.

One day, Heffernan's mother asked him to stop by Spagnola's campaign to fetch her a yard sign. When Heffernan did, other officers spotted him and "word quickly spread throughout the force." (Cops can be so gossipy.)

The very next day, Heffernan's supervisors demoted him from detective to patrol officer, thinking that Heffernan had been involved in Spagnola's campaign. The rub, of course, is that Heffernan had not.

Must You Exercise a Right in Order to Face Retaliation?

Heffernan's bosses' mistake didn't just get him demoted, it almost kept him out of court. Heffernan sued under 42 U.S.C. § 1983, alleging that the police force had illegally deprived him of his constitutional rights. As the Supreme Court notes in the 6-2 decision penned by Justice Breyer, the First Amendment "generally prohibits government officials from dismissing or demoting an employee because of the employee's engagement in constitutionally protected activity."

But here, Heffernan hadn't actually been engaged in a protected activity. And that, according to the district court and Third Circuit, was key. Since Heffernan hadn't been engaged in First Amendment conduct, he could not rely on section 1983 for a free-speech retaliation claim. There needed to be an actual, not just perceived, exercise of those rights.

Not so, the Court ruled today. "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," the Supreme Court explained in an unusually short and straight-forward opinion.

The Employer's Motive Is What Matters

After all, the Court had looked to employers' motivations in 1994's Waters v. Churchill, when an employer fired a worker for discussing confidential information publicly. But that employee had actually been speaking about matters of public concern. The fact that the employer was wrong, and that the termination hadn't been based on protected speech, insulated him from suit.

"If the employer's motive," Justice Breyer wrote, "is what mattered in Waters, why is the same not true here? After all, in the law, what is sauce for the goose is normally sauce for the gander."

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