United States Supreme Court Expands the Scope of First Amendment Employee Retaliation Claims in Heffernan v. City of Patterson

On April 26, 2016, the Supreme Court of the United States, in Heffernan v. City of Patterson, held that when an employer demotes an employee out of a desire to prevent the employee from engaging in protected political activity, the employee is entitled to challenge that unlawful action under the First Amendment of the United States Constitution and 42 U.S.C. §1983, even if the employer’s actions are based on a factual mistake about the employee’s behavior.

Heffernan involved Jeffrey Heffernan, a police officer for the Patterson, New Jersey Police Department.  In 2005, the City of Patterson’s mayor was running a contested reelection campaign.  During the campaign, Heffernan’s mother, who was bedridden, asked Heffernan to drive downtown and pick up a campaign yard sign supporting the mayor’s opponent. 

Members of the Patterson Police Department saw Heffernan pick up the sign from the headquarters of the mayor’s opponent and concluded that Heffernan was supporting the opponent.   In fact, Heffernan admitted that he was not involved in the campaign, and Heffernan’s supervisors had made a factual mistake about his involvement.  The next day, Heffernan’s supervisors demoted him from detective to patrol officer and assigned him to a “walking post,” due to “overt involvement” in the political campaign.

Heffernan filed an action against the City in New Jersey federal court, pursuant to 42 U.S.C. § 1983, and argued that the Department’s actions violated his constitutional right to free speech.  The District Court of New Jersey rejected Heffernan’s argument and reasoned that, since he was not actually engaging in political speech, his First Amendment rights were not violated, despite the fact that his supervisors believed that he was exercising his rights to free speech. 

Heffernan appealed, and the U.S. Court of Appeals for the Third Circuit affirmed, holding that “a free-speech retaliation claim is actionable . . . only where the adverse action at issue was prompted by an employee’s actual, rather than perceived, exercise of constitutional rights.”  (Emphasis in original).

However, the United States Supreme Court reversed.  In a 6-2 opinion authored by Justice Breyer, the Court noted that 42 U.S.C. § 1983 authorizes anyone who is “depriv[ed]” of a “right . . . secured by the Constitution” to bring suit against the government in federal court.  However, Justice Breyer acknowledged the ambiguity with the term “right,” and questioned whether such “right” focuses on the employee’s actual activity, or upon the supervisor’s motive and belief of what the activity is. 

In other words, can an employee bring suit alleging violations of First Amendment rights even if the employee acknowledges that they were not exercising their First Amendment rights, but the employee’s supervisors believed that they were? 

Ultimately, the Court held that the employee may.  The Court reasoned as follows:

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.

In reaching this conclusion, the Court cited the text of the First Amendment, which provides that “Congress shall make no law . . . abridging the freedom of speech.”  The Court found that this language focused on the activity of the government, as opposed to the actions of an individual.  Since the government in this case was engaging in an unconstitutional policy, imposing liability was appropriate, regardless of the employee’s intent.  

In addition, the Court discussed the policy and constitutional considerations in imposing liability.  The Court explained that the constitutional harm at issue consisted of discouraging employees from engaging in protected activities, since discharging employees for perceived engagement in political activities can send a message that employees “engage in protected activity at their peril.”  The Court reasoned that an employer’s mistaken belief about the employee’s activity did not diminish this constitutional harm.  

In its decision, the Court assumed, but did not decide, that the policy that Heffernan’s employers implemented was unconstitutional.  However, the Court noted that there was evidence in the record suggesting that Heffernan was demoted due to violating a neutral policy prohibiting police officers from overt involvement in any political campaign. The Court therefore remanded the case, or sent it back to lower courts, for consideration of the constitutionality of the policy that was actually being implemented.

In summary, Heffernan marks an expansion of First Amendment protections and employee retaliation claims brought under 42 U.S.C. § 1983.  Under Heffernan, actual engagement in protected speech is no longer required to bring suit.  The government’s mere belief that an employee has engaged in protected speech, whether or not correct, is sufficient to bring a First Amendment employee retaliation claim.

Article written by Jeffrey A. Jaketic, Esq. For more information, contact Mr. Jaketic via email at jjaketic@hhk.com

 

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