Heffernan v. City of Paterson, 2 F. Supp. 3d 563

Heffernan, a Paterson police detective since 1985, was demoted after being associated with a campaign sign incident; he contends defendants believed he engaged in political campaigning.
The demotion followed Heffernan obtaining a lawn sign for his ill mother from a campaign worker for Spagnola; he denies any political motive or communication.
Wittig (Police Director) and Torres (Mayor) were the key decisionmakers; Papagni and Fraher delivered the demotion and transfer in 2006.
Plaintiff’s theory centers on retaliation for First Amendment speech or political association, including a theory based on an employer’s mistaken belief of protected activity.
Judge Sheridan previously allowed a freedom-of-association theory to go to trial; on remand, summary judgment was granted against Heffernan for speech, but the Third Circuit required reconsideration of association.
On remand, the court grants summary judgment for defendants on both free-speech and free-association claims, and dismisses the entire complaint.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Heffernan engaged in protected First Amendment speech	Heffernan engaged in political speech by handling campaign signs	No protected speech occurred; he did not speak or express himself	No genuine issue; no protected speech found
Whether retaliation occurred based on perceived (not actual) speech	Defendants retaliated for perceived support of Spagnola	Ambrose/Fogarty rule bars retaliation based on mistaken perception	Perceived-speech claim barred; no First Amendment retaliation
Whether Heffernan had a viable freedom of association claim	Defendants retaliated for his association with Spagnola	No actual association; association claim not properly pled	Free-association claim denied; no liability
Whether Heffernan aided and abetted speech	Heffernan assisted his mother’s political speech	No evidence of aiding and abetting; not protected conduct	No aiding-and-abetting protection; grant of summary judgment for defendants

Ambrose v. Twp. of Robinson, 303 F.3d 488 (3d Cir. 2002) (no First Amendment retaliation for perceived support; requires actual speech)
Fogarty v. Boles, 121 F.3d 886 (3d Cir. 1997) (no retaliation based on substantiated mistaken belief without protected conduct)
Texas v. Johnson, 491 U.S. 397 (1989) (necessity of an express sign or message for expressive conduct)
Tenafly Eruv Ass’n v. Borough of Tenafly, 309 F.3d 144 (3d Cir. 2002) (expressive conduct requires a particularized message in context)
Welch v. Ciampa, 542 F.3d 927 (1st Cir. 2008) (neutral conduct and association in recall context; nuanced per Welch)
Gann v. Cline, 519 F.3d 1090 (10th Cir. 2008) (permissible focus on employer motivation in political-affiliation cases)
Waters v. Churchill, 511 U.S. 661 (1994) (due process-like considerations for speech-related decisions)