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Media Alerts - Heffernan v. City of Paterson - Third Circuit
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January 27, 2015
  Heffernan v. City of Paterson - Third Circuit
Headline: Third Circuit Finds Paterson Police Detective Can't Sue for Being Demoted for Political Activity

Area of Law: Constitutional Law

Issue Presented: Whether a public employee can be disciplined for perceived exercise of first amendment rights as opposed to actual exercise of such rights.

Brief Summary: In April 2006, Jeffery Heffernan, was a police officer in Paterson, New Jersey. He was observed obtaining a campaign sign for a candidate running against the incumbent mayor of Paterson, Jose Torres. He was actually getting the sign for his mother. Despite his explanations that he was not working in the campaign, that he was not politically involved, and that he couldn't even vote in the election because he didn't live in the city, Heffernan was subsequently demoted for being involved in political activities. Heffernan then sued the City in the District Court of New Jersey for unconstitutional retaliation for exercising his First Amendment rights. The District Judge granted summary judgment against Heffernan, which he appealed. The Third Circuit Court of Appeals affirmed the District Court's dismissal of the case. As the Court explained, Heffernan failed to produce any evidence that he was actually exercising his First Amendment rights, and claims of retaliation based only on the perceived exercise of those rights were foreclosed by existing Third Circuit precedent.

Extended Summary: In April 2006, Lawrence Spagnola, a former Paterson, New Jersey police chief, was running for mayor of Paterson against the incumbent, Jose Torres. Spagnola was a close friend of the appellant, Jeffery Heffernan. Despite personally hoping that Spagnola would win the election, Heffernan was unable to vote for Spagnola because he didn't live in Paterson, didn't work on Spagnola's campaign, and didn't consider himself politically involved with the campaign. On April 13, 2006, Heffernan's bedridden mother asked Heffernan to drive into town to pick up a large Spagnola campaign sign. Ever the dutiful son, Heffernan did as his mother asked, and brought the sign back to his mother's house, where another family member put it up in her yard. Another Patterson police officer, who was working a security detail for Mayor Torres, happened to see Heffernan's encounter with Spagnola's campaign office. Word got around, and the next day, Heffernan was confronted by a supervisor. Although Heffernan explained that he was not politically involved, he was demoted to a walking detail for overt involvement in a political election. In August 2006, Heffernan brought a 42 U.S.C. ยง 1983 action against the City of Paterson, Mayor Jose Torres, Police Chief James Wittig, and Police Administrator Michael Walker for (1) retaliatory demotion based on Heffernan's exercise of the right to freedom of speech, and (2) retaliatory demotion based on his exercise of the right to freedom of association.

The case followed a rather unusual course. In his initial trial, Heffernan won a $105,000 jury verdict. After the verdict, however, the trial judge in the case recused himself for conflict of interest and vacated the jury's decision. The case was then reassigned to a second judge, who granted the defendants summary judgment. In so doing, however, the judge only addressed Heffernan's free-speech claim but forgot to address the free-association claim. On appeal, the Third Circuit reversed the trial judge, and remanded the case for a full consideration of all claims. On remand, the case was assigned to yet another judge. This judge granted summary judgment to the defendants on both counts, explaining that Heffernan failed to produce evidence that he actually exercised his First Amendment rights, and that Heffernan was foreclosed from seeking compensation for retaliation based only on the perceived exercise of his rights. Once again, Heffernan appealed the decision to the Third Circuit.

On appeal, Heffernan first argued that he was entitled to relief because he actually did engage in speech or conduct protected under the First Amendment. The Third Circuit disagreed. With respect to his free speech claim, the Court found that the only element in dispute was whether the jury could find that Heffernan actually spoke about or acted in support of an issue of public concern. Heffernan argued that his actions had the effect of supporting Spagnola's campaign. The Third Circuit noted, however, that Heffernan had stated that he had no intention of conveying a particular message when he picked up the campaign sign and that he was just doing it for his mother. Accordingly, the Court held that a jury would have no room to find Heffernan intended to convey a political message when he picked up the sign.

With respect to his free-association claim, the Court focused on the second required element, which was whether the employee maintained an affiliation with a political party. The Third Circuit noted that Heffernan himself confirmed that regardless of what others may have perceived, he did not have any affiliation with the campaign other than the contact necessary for him to pick up the sign for his mother. Once again, the evidence was insufficient to show that he was actually affiliated with the campaign, meaning no jury could return a verdict in his favor.

Finally, Heffernan argued he was entitled to proceed to trial for his free-speech and free-association claims under a "perceived-support" theory. Under this theory, an employee could file suit if he or she were disciplined for political activity even if the alleged political activity didn't actually take place. The Third Circuit, however, explained that its own binding precedent did not allow such an argument to be made. 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. Accordingly, the Third Circuit affirmed the decision of the lower court to grant summary judgment in favor of the defendants.

For the full text of the opinion, see http://www2.ca3.uscourts.gov/opinarch/141610p.pdf.

Panel (if known): Vanaskie, Greenberg, and Cowen, Circuit Judges

Argument Date: December 12, 2014 (submitted on briefs)

Date of Issued Opinion: January 22, 2015

Docket Number: No. 14-1610

Decided: Affirmed.

Case Alert Author: Katie Cooper Davis

Counsel: Alexandra M. Antoniou, Esq. for the Appellant; Victor A. Afanador, Esq., Susana Cruz-Hodge, Esq., Albert C. Lisbona, Esq., Gary Potters, Esq., Anthony V. D'Elia, Esq., and Thomas P. Scrivo, Esq. for the Appellees.

Author of Opinion: Judge Vanaskie

Circuit: Third Circuit

Case Alert Supervisor: Prof. Mark Anderson

    Posted By: Susan DeJarnatt @ 01/27/2015 11:18 AM     3rd Circuit  

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