HEFFERNAN v. CITY OF PATERSON, NEW JERSEY, ET AL.
No. 14-1280
SUPREME COURT OF THE UNITED STATES
April 26, 2016
578 U. S. ____ (2016)
OCTOBER TERM, 2015
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
HEFFERNAN v. CITY OF PATERSON, NEW JERSEY, ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
No. 14-1280. Argued January 19, 2016—Decided April 26, 2016
Petitioner Heffernan was a police officer working in the office of Paterson, New Jersey‘s chief of police. Both the chief of police and Heffernan‘s supervisor had been appointed by Paterson‘s incumbent mayor, who was running for re-election against Lawrence Spagnola, a good friend of Heffernan‘s. Heffernan was not involved in Spagnola‘s campaign in any capacity. As a favor to his bedridden mother, Heffernan agreed to pick up and deliver to her a Spagnola campaign yard sign. Other police officers observed Heffernan speaking to staff at a Spagnola distribution point while holding the yard sign. Word quickly spread throughout the force. The next day, Heffernan‘s supervisors demoted him from detective to patrol officer as punishment for his “overt involvement” in Spagnola‘s campaign. Heffernan filed suit, clаiming that the police chief and the other respondents had demoted him because, in their mistaken view, he had engaged in conduct that constituted protected speech. They had thereby “depriv[ed]” him of a “right . . . secured by the Constitution.”
Held:
1. When an employer demotes an employee out of a desire to prevent the employee from engaging in protected political activity, the employee is entitled to challenge that unlawful action under the First Amendment and
2. For the purposes of this opinion, the Court has assumed that Heffernan‘s employer demoted him out of an improper motive. However, the lower courts should decide in the first instance whether respondents may havе acted under a neutral policy prohibiting police officers from overt involvement in any political campaign and whether such a policy, if it exists, complies with constitutional standards. P. 8.
777 F. 3d 147, reversed and remanded.
BREYER, J., delivered the opinion of the Court, in which ROBERTS, C. J., and KENNEDY, GINSBURG, SOTOMAYOR, and KAGAN, JJ., joined. THOMAS, J., filed a dissenting opinion, in which ALITO, J., joined.
SUPREME COURT OF THE UNITED STATES
No. 14–1280
JEFFREY J. HEFFERNAN, PETITIONER v. CITY OF PATERSON, NEW JERSEY, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
[April 26, 2016]
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 (1976); Branti v. Finkel, 445 U. S. 507 (1980); but cf. Civil Service Comm‘n v. Letter Carriers, 413 U. S. 548, 564 (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 criticаl 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“?
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
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 him 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 faсts) constituted protected speech. They had thereby “depriv[ed]” him of a “right . . . secured by the Constitution.”
The District Court found that Heffernan had not engaged in any “First Amendment conduct,” 2 F. Supp. 3d 563, 580 (NJ 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
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 (1943). The exceptions take account of “practical realities” such as the need for “efficiency” and “effec-tive[ness]” in government service. Waters v. Churchill, 511 U. S. 661, 672, 675 (1994); see also Civil Service Comm‘n, supra, at 564 (neutral and appropriately limited policy may prohibit government employees from engaging in partisan activity), and Branti, supra, at 518 (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 8. 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. Republi-
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.”
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 (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. 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. We made somewhat similar statements in Garcetti v. Ceballos, 547 U. S. 410, 418 (2006), and Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U. S. 563 (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 а document that criticized how the office
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 оf 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 (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 speech. The employee, however, had in fact used words that did not amount to personal “gossip” (as the employer believed) but which focused on matters of public concern. The Court asked whether, and how, the employer‘s factual mistake mattered.
The Court held that, as long as the employer (1) had reasonably believed that the employee‘s conversation had involved personal matters, not matters of public concern, and (2) had dismissed the employee because of that mistaken belief, the dismissal did not violate the First Amendment. Id., at 679–680. In a word, it was thе employer‘s motive, and in particular the facts as the employer reasonably understood them, that mattered.
In Waters, the employer reasonably but mistakenly
We conclude that, as in Waters, the government‘s reason for demoting Heffernan is what counts here. When an employеr 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
We note that a rule of law finding liability in these circumstances tracks the language of the First Amendment more closely than would a contrary rule. Unlike, say, the Fourth Amendment, which begins by speaking of the “right of the people to be secure in their pеrsons, houses, papers, and effects . . . ,” the First Amendment begins by focusing upon the activity of the Government. It says that “Congress shall make no law . . . abridging the freedom of speech.” The Government acted upon a constitutionally harmful policy whether Heffernan did or did not in fact engage in political activity. That which stands for a “law” of “Congress,” namely, the police department‘s reason for taking action, “abridge[s] the freedom of speech” of employees aware of the policy. And Heffernan was directly harmed, namely, demoted, through application of that pоlicy.
We also consider relevant the constitutional implications of a rule that imposes liability. The constitutional harm at issue in the ordinary case consists in large part of discouraging employees—both the employee discharged (or demoted) and his or her colleagues—from engaging in
Finally, we note that, contrary to respondents’ assertions, a rule of law that imposes liability despite the employer‘s factual mistake will not normally impose significant extra costs upon the employer. To win, the employee must prove an improper employer motive. In a case like this one, the employee will, if anything, find it more difficult to prove that motive, for the employee will have to point to more than his own conduct to show an employer‘s intent to discharge or to demote him for engaging in what the employer (mistakenly) believes to have been different (and protected) activities. We concede thаt, for that very reason, it may be more complicated and costly for the
III
We now relax an assumption underlying our decision. We have assumed that the policy that Heffernan‘s employers implemented violated the Constitution. Supra, at 3. There is some evidence in the record, however, suggesting 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. See Brief for United States as Amicus Curiae 27–28. Whether that policy existed, whether Heffernan‘s supervisors were indeed following it, and whether it complies with constitutional standards, see Civil Service Comm‘n, 413 U. S., at 564, are all matters for the lower courts to decide in the first instance. 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.
It is so ordered.
SUPREME COURT OF THE UNITED STATES
No. 14–1280
JEFFREY J. HEFFERNAN, PETITIONER v. CITY OF PATERSON, NEW JERSEY, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
[April 26, 2016]
JUSTICE THOMAS, with whom JUSTICE ALITO joins, dissenting.
Today the Court holds that a public employee may bring a federal lawsuit for money damages alleging a violation of a constitutional right that he concedes he did not exercise. Ante, at 1. Because federal law does not provide a cause of action to plaintiffs whose constitutional rights have not been violated, I respectfully dissent.
I
This lawsuit concerns a decision by the city of Paterson, New Jersey (hereinafter City), to demote one of its police officers, Jeffrey Heffernan. At the time of Heffernan‘s demotion, Paterson‘s mayor, Jose Torres, was running for reelection against one of Heffernan‘s friends, Lawrence Spagnola. The police chief demoted Heffernan after anоther officer assigned to Mayor Torres’ security detail witnessed Heffernan pick up a Spagnola campaign sign when Heffernan was off duty. Heffernan claimed that he picked up the sign solely as an errand for his bedridden mother. Heffernan denied supporting or associating with Spagnola‘s campaign and disclaimed any intent to communicate support for Spagnola by retrieving the campaign sign. Despite Heffernan‘s assurances that he was not engaged in protected First Amendment activity, he filed
II
Title
There are two ways to frame Heffernan‘s First Amendment claim, but neither can sustain his suit. As in most
A
To state a claim for retaliation in violation of the First Amendment, public employees like Heffernan must allege that their employer interfered with their right to speak as
Under this framework, Heffernan‘s claim fails at the first step. He has denied that, by picking up the yard sign, he “spoke as a citizen оn a matter of public concern.” Ibid. In fact, Heffernan denies speaking in support of or associating with the Spagnola campaign. He has claimed that he picked up the yard sign only as an errand for his bedridden mother. Demoting a dutiful son who aids his elderly, bedridden mother may be callous, but it is not unconstitutional.
To be sure, Heffernan could exercise his First Amendment rights by choosing not to assemble with the Spagnola campaign. Cf. Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U. S. 539, 559 (1985) (freedom of expression “includes both the right to speak freely and the right to refrain from speaking at all” (internal quotation marks omitted)). But such an allegation could not save his claim here. A retaliation claim requires proving that Heffernan‘s protected activity was a cause-in-fact of the retaliation. See University of Tex. Southwestern Medical Center v. Nassar, 570 U. S. 338, 360 (2013). And Heffernan‘s exercise of his right not to associate with the Spagnola campaign did not cause his demotion. Rather, his perceived association with the Spagnola campaign did.
At bottom, Heffernan claims that the City tried to interfere with his constitutional rights and failed. But it is not enough for the City to have attempted to infringe his First Amendment rights. To prevail on his claim, he must establish that the City actually did so. The City‘s attempt never ripened into an actual violation of Heffernan‘s constitutional rights bеcause, unbeknownst to the City, Heffernan did not support Spagnola‘s campaign.
Though, in criminal law, a factually impossible attempt like the City‘s actions here could constitute an attempt,* there is no such doctrine in tort law. A plaintiff may maintain a suit only for a completed tort; “[t]here are no attempted torts.” United States v. Stefonek, 179 F. 3d 1030, 1036 (CA7 1999) (internal quotation marks omitted); see also Sebok, Deterrence or Disgorgement? Reading Ciraolo After Campbell, 64 Md. L. Rev. 541, 565 (2005) (same). And “there can be no doubt that claims brought pursuant to
B
To get around this problem of factual impossibility, the majority reframes Heffernan‘s case as one about the City‘s lack of power to act with unconstitutional motives. See
But
The mere fact that the government has acted unconstitutionally does not necessarily result in the violаtion of an individual‘s constitutional rights, even when that individ-
Here too, 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. 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
The majority tries to distinguish the Fourth Amendment by emphasizing the textual differences between thаt Amendment and the First. See ante, at 6 (“Unlike, say the Fourth Amendment . . . , the First Amendment begins by focusing upon the activity of the Government“). But these textual differences are immaterial. All rights enumerated in the Bill of Rights “focu[s] upon the activity of the Government” by “tak[ing] certain policy choices off the table.” District of Columbia v. Heller, 554 U. S. 570, 636 (2008); see also Hohfeld, Some Fundamental Legal Conceptions As Applied in Judicial Reasoning, 23 Yale L. J. 16, 30, 55–57 (1913) (recognizing that an immunity implies a corresponding lack of power). Fourth Amendment rights could
To reach the opposite conclusion, the majority relies only on Waters v. Churchill, 511 U. S. 661 (1994) (plurality opinion). See ante, at 5–7. But Waters does not support the majority‘s expansion of
Unlike the employee in Waters, Heffernan admits that he was not engaged in constitutionally protected activity. Accordingly, unlike in Waters, he cannot allege that his employer interfered with conduct protected by the First Amendment. “[W]hat is sauce for the goose” is not “sauce for the gander,” ante, at 6, when the goose speaks and the gander does not.
*
If the facts are as Heffernan has alleged, the City‘s demotion of him may be misguided or wrong. But, because Heffernan concedes that he did not exercise his First Amendment rights, he has no cause of action under