The Supreme Court Reacquainted This Police Department With The First Amendment


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With only a few exceptions, Justice Stephen Breyer explains in an opinion handed down Tuesday morning, “the Constitution prohibits a government employer from discharging or demoting an employee because the employee supports a particular political candidate.” The police department in Paterson, New Jersey, however, allegedly did not get this memo.

The plaintiff in Heffernan v. City of Paterson, a former police detective, claims that he was demoted to patrol officer because his supervisors thought that he backed the wrong political candidate. In reality, Officer Heffernan had no involvement with the political campaign at issue in the case, and was allegedly demoted solely due to a mistake by his supervisors. Heffernan’s case turned upon whether a government employee loses their constitutional rights if their employer lashes out at them in error.

The case allegedly began when Heffernan’s bedridden mother asked her son to pick up a sign from a mayoral candidate’s campaign office that she wished to display in her yard. That candidate opposed the incumbent mayor, who had appointed both the police chief and Heffernan’s immediate supervisor. A day after Heffernan picked up the sign from the candidate’s office, he was demoted.

Thus, as Breyer explains, Heffernan’s supervisors “punished Heffernan for what they thought was his ‘overt involvement’ in Spagnola’s campaign” when, “in fact, Heffernan was not involved in the campaign but had picked up the sign simply to help his mother.”

A federal appeals court determined that Heffernan cannot challenge this action because the law permitting individuals to sue states for constitutional violations permits suits “only where the adverse action at issue was prompted by an employee’s actual, rather than perceived, exercise of constitutional rights.” Breyer, speaking on behalf of himself and five other justices, held otherwise.

In its 1994 decision in Waters v. Churchill, Justice Breyer explained, the Court confronted an employer who fired an employee that it wrongly believed had been engaged in gossip of the sort that is not protected by the First Amendment (at least in the workplace context). In reality, that employee “had in fact used words that did not amount to personal ‘gossip’ (as the employer believed) but which focused on matters of public concern.” Thus, while the employee’s actual words were protected by the First Amendment, the employer was not motivated by any unconstitutional purpose when it fired the employee.

Under these circumstances, Waters held, the employer was not liable for firing the employee. According to Breyer, this result — which hinged liability on an employer’s motive, rather than on the actions of the employee — also controls the Heffernan case. “If the employer’s motive (and in particular the facts as the employer reasonably understood them) is what mattered in Waters, why is the same not true here?” Breyer wrote. “After all, in the law, what is sauce for the goose is normally sauce for the gander.”

Additionally, Breyer warned, a decision permitting Heffernan’s employer to escape liability because of a mistake could have a chilling effect on other employees who were engaged in constitutionally protected activity. “The discharge of one tells the others that they engage in protected activity at their peril.” A fellow officer who witnessed what allegedly happened to Heffernan is likely to avoid engaging in political activity of their own.

Only the two most conservative justices, Justices Clarence Thomas and Samuel Alito, dissented. Thomas, who wrote the dissent, claimed that federal law does not provide “a remedy against public officials who attempt but fail to violate someone’s constitutional rights.” He added that “demoting a dutiful son who aids his elderly, bedridden mother may be callous, but it is not unconstitutional.”


Reprinted with permission from Think Progress, a branch of The Center for American Progress