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Justices Crack Down on Political Demotion

WASHINGTON (CN) — It wasn't his campaign poster, but a police officer who was demoted after he was spotted with it has a case for retaliation, the U.S. Supreme Court ruled Tuesday.

The controversy erupted in 2005 when Jose Torres, the mayor of Paterson, was running for re-election against Lawrence Spagnola.

Jeffrey Heffernan was a police detective in the city at the time and a good friend of Spagnola's, today's ruling states.

Word quickly spread through the force when police officers saw Heffernan picking up a campaign sign at the Spagnola distribution plant, and talking with Spagnola's campaign manager.

The sign was for Heffernan's mother, but Heffernan found himself demoted the very next day to foot patrol.

Though Heffernan had not actually engaged in constitutionally protected speech himself, since the sign was not for him, he accused the city of demoting him based on their mistaken beliefs about his conduct.

A federal judge rejected Heffernan's case, however, and the Third Circuit affirmed, saying free-speech retaliation claims are not actionable unless "the adverse action at issue was prompted by an employee's actual, rather than perceived, exercise of constitutional rights." (Emphasis in original.)

The Supreme Court disagreed 6-2 on Tuesday and reversed for Heffernan.

"We conclude that ... the government's reason for demoting Heffernan is what counts here," Justice Stephen Breyer wrote for the majority. "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."

Heffernan is not home free, yet, the majority emphasized, noting "some evidence in the record ... that Heffernan's employers may have dismissed him pursuant to a different and neutral policy prohibiting police officers from overt involvement in any political campaign."

"Whether that policy existed, whether Heffernan's supervisors were indeed following it, and whether it complies with constitutional standards, are all matters for the lower courts to decide in the first instance," the 8-page opinion states. "Without expressing views on the matter, we reverse the judgment of the Third Circuit and remand the case for such further proceedings consistent with this opinion."

Justice Samuel Alito joined a dissent by Justice Clarence Thomas that says Heffernan's claim failed at the outset.

"He has claimed that he picked up the yard sign only as an errand for his bedridden mother," the dissent states. "Demoting a dutiful son who aids his elderly, bedridden mother may be callous, but it is not unconstitutional."

Thomas insisted that "Heffernan must allege more than an injury from an unconstitutional policy."

"He must establish that this policy infringed his constitutional rights to speak freely and peaceably assemble," the dissent continues. "Even if the majority is correct that demoting Heffernan for a politically motivated reason was beyond the scope of the city's power, the city never invaded Heffernan's right to speak or assemble. Accordingly, he is not entitled to money damages under §1983 for the nonviolation of his First Amendment rights." (Emphasis in original.)

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