Heffernan v. City of Paterson

578 U.S. 266

136 S.Ct. 1412

194 L.Ed.2d 508

Jeffrey J. HEFFERNAN, Petitioner

v.CITY OF PATERSON, NEW JERSEY, et al.

No. 14–1280.

Supreme Court of the United States

Argued Jan. 19, 2016.

Decided April 26, 2016.

Mark Frost, Philadelphia, PA, for petitioner.

Ginger D. Anders for the United States, as amicus curiae, by special leave of the Court, supporting the petitioner.

Thomas C. Goldstein, Bethesda, MD, for respondents.

Stuart Banner, Eugene Volokh, UCLA School of Law, Supreme Court Clinic, Los Angeles, CA, Fred A. Rowley, Jr., Grant A. Davis–Denny, Andrew G. Prout, Munger, Tolles & Olson LLP, Los Angeles, CA, Mark B. Frost, Counsel of Record, Ryan M. Lockman, Mark B. Frost & Associates, Philadelphia, PA, for petitioner.

Edward A. Hartnett, Seton Hall University School of Law, Victor A. Afanador, Counsel of Record, Susana Cruz Hodge, Erik E. Sardiña, Lite DePalma Greenberg LLC, Newark, NJ, Albert C. Lisbona, Beth Connell O'Connor, Dwyer, Connell & Lisbona, Gary Potters, Potters & Delia Peitra, Fairfield, NJ, Thomas P. Scrivo, McElroy, Deutsch, Mulvaney & Carpenter, Newark, NJ, Roosevelt Jean, Chasan, Leyner, & Lamparello, Secaucus, NJ, for respondents in Opposition.

Thomas C. Goldstein, Goldstein & Russell, P.C., Bethesda, MD, Gary Potters, Potters & Delia Peitra, Fairfield, NJ, Roosevelt Jean, Chasan Leyner &, Lamparello, Secaucus, NJ, Domenick Stampone, City of Paterson, Paterson, NJ, Victor A. Afanador, Erik E. Sardiña, Lite DePalma Greenberg, LLC, Edward A. Hartnett, Seton Hall University School of Law, Newark, NJ, Albert C. Lisbona, Beth Connell O'Connor, Dwyer, Connell & Lisbona, Fairfield, NJ, Ryan P. Mulvaney, McElroy, Deutsch, Mulvaney &, Carpenter, LLP, Newark, NJ, for respondents.

Justice BREYER delivered the opinion of the Court.

The First Amendment generally prohibits government officials from dismissing or demoting an employee because of the employee's engagement in constitutionally protected political activity. See Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976) ; Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980) ; but cf. Civil Service Comm'n v. Letter Carriers, 413 U.S. 548, 564, 93 S.Ct. 2880, 37 L.Ed.2d 796 (1973). In this case a government official demoted an employee because the official believed, but incorrectly believed, that the employee had supported a particular candidate for mayor. The question is whether the official's factual mistake makes a critical legal difference. Even though the employee had not in fact engaged in protected political activity, did his demotion "deprive" him of a "right ... secured by the Constitution"? 42 U.S.C. § 1983. We hold that it did.

I

To decide the legal question presented, we assume the following, somewhat simplified, version of the facts: In 2005, Jeffrey Heffernan, the petitioner, was a police officer in Paterson, New Jersey. He worked in the office of the Chief of Police, James Wittig. At that time, the mayor of Paterson, Jose Torres, was running for reelection against Lawrence Spagnola. Torres had appointed to their current positions both Chief Wittig and a subordinate who directly supervised Heffernan. Heffernan was a good friend of Spagnola's.

During the campaign, Heffernan's mother, who was bedridden, asked Heffernan to drive downtown and pick up a large Spagnola sign. She wanted to replace a smaller Spagnola sign, which had been stolen from her front yard. Heffernan went to a Spagnola distribution point and picked up the sign. While there, he spoke for a time to Spagnola's campaign manager and staff. Other members of the police force saw him, sign in hand, talking to campaign workers. Word quickly spread throughout the force.

The next day, Heffernan's supervisors demoted Heffernan from detective to patrol officer and assigned him to a "walking post." In this way they punished Heffernan for what they thought was his "overt involvement" in Spagnola's campaign. In fact, Heffernan was not involved in the campaign but had picked up the sign simply to help his mother. Heffernan's supervisors had made a factual mistake.

Heffernan subsequently filed this lawsuit in federal court. He claimed that Chief Wittig and the other respondents had demoted him because he had engaged in conduct that (on their mistaken view of the facts) constituted protected speech. They had thereby "depriv[ed]" him of a "right ... secured by the Constitution." Rev. Stat. § 1979, 42 U.S.C. § 1983.

The District Court found that Heffernan had not engaged in any "First Amendment conduct," 2 F.Supp.3d 563, 580 (D.N.J.2014) ; and, for that reason, the respondents had not deprived him of any constitutionally protected right. The Court of Appeals for the Third Circuit affirmed. It wrote that "a free-speech retaliation claim is actionable under § 1983 only where the adverse action at issue was prompted by an employee's actual, rather than perceived, exercise of constitutional rights." 777 F.3d 147, 153 (2015) (citing Ambrose v. Robinson, 303 F.3d 488, 496 (C.A.3 2002) ; emphasis added). Heffernan filed a petition for certiorari. We agreed to decide whether the Third Circuit's legal view was correct. Compare 777 F.3d, at 153 (case below), with Dye v. Office of Racing Comm'n, 702 F.3d 286, 300 (C.A.6 2012) (similar factual mistake does not affect the validity of the government employee's claim).

II

With a few exceptions, the Constitution prohibits a government employer from discharging or demoting an employee because the employee supports a particular political candidate. See Elrod v. Burns, supra ; Branti v. Finkel, supra . The basic constitutional requirement reflects the First Amendment's hostility to government action that "prescribe[s] what shall be orthodox in politics." West Virginia Bd. of Ed . v. Barnette, 319 U.S. 624, 642, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943). The exceptions take account of "practical realities" such as the need for "efficiency" and "effective[ness]" in government service. Waters v. Churchill, 511 U.S. 661, 672, 675, 114 S.Ct. 1878, 128 L.Ed.2d 686 (1994) ; see also Civil Service Comm'n, supra, at 564, 93 S.Ct. 2880 (neutral and appropriately limited policy may prohibit government employees from engaging in partisan activity), and Branti, supra, at 518, 100 S.Ct. 1287 (political affiliation requirement permissible where affiliation is "an appropriate requirement for effective performance of the public office involved").

In order to answer the question presented, we assume that the exceptions do not apply here. But see infra, at 1419. We assume that the activities that Heffernan's supervisors thought he had engaged in are of a kind that they cannot constitutionally prohibit or punish, see Rutan v. Republican Party of Ill., 497 U.S. 62, 69, 110 S.Ct. 2729, 111 L.Ed.2d 52 (1990) ("joining, working for or contributing to the political party and candidates of their own choice"), but that the supervisors were mistaken about the facts. Heffernan had not engaged in those protected activities.

Does Heffernan's constitutional case consequently fail?

The text of the relevant statute does not answer the question. The statute authorizes a lawsuit by a person "depriv[ed]" of a "right ... secured by the Constitution." 42 U.S.C. § 1983. But in this context, what precisely is that "right?" Is it a right that primarily focuses upon (the employee's) actual activity or a right that primarily focuses upon (the supervisor's) motive, insofar as that motive turns on what the supervisor believes that activity to be? The text does not say.

Neither does precedent directly answer the question. In some cases we have used language that suggests the "right" at issue concerns the employee's actual activity. In Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983), for example, we said that a court should first determine whether the plaintiff spoke " ‘as a citizen’ " on a " ‘matter[ ] of public concern,’ " id., at 143, 103 S.Ct. 1684. We added that, if the employee has not engaged in what can "be fairly characterized as constituting speech on a matter of public concern, it is unnecessary for us to scrutinize the reasons for her discharge." Id., at 146, 103 S.Ct. 1684. We made somewhat similar statements in Garcetti v. Ceballos, 547 U.S. 410, 418, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006), and Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968).

These cases, however, did not present the kind of question at issue here. In Connick, for example, no factual mistake was at issue. The Court assumed that both the employer and the employee were at every stage in agreement about the underlying facts: that the employer dismissed the employee because of her having circulated within the office a document that criticized how the office was being run (that she had in fact circulated). The question was whether the circulation of that document amounted to constitutionally protected speech. If not, the Court need go no further.

Neither was any factual mistake at issue in Pickering. The Court assumed that both the employer (a school board) and the employee understood the cause for dismissal, namely, a petition that the employee had indeed circulated criticizing his employer's practices. The question concerned whether the petition was protected speech. Garcetti is substantially similar. In each of these cases, the only way to show that the employer's motive was unconstitutional was to prove that the controversial statement or activity—in each case the undisputed reason for the firing—was in fact protected by the First Amendment.

Waters v. Churchill, 511 U.S. 661, 114 S.Ct. 1878, 128 L.Ed.2d 686 (1994), is more to the point. In that case the Court did consider the consequences of an employer mistake. The employer wrongly, though reasonably, believed that the employee had spoken only on personal matters not of public concern, and the employer dismissed the employee for having engaged in that unprotected...