High court split over NJ officer's First Amendment case

The day after another cop saw what he thought was Officer Jeffrey Heffernan holding a political sign, Heffernan was demoted

By Sam Hananel
Associated Press

WASHINGTON — A New Jersey police officer's claim that he was a victim of political retribution drew plenty of sympathy at the Supreme Court on Tuesday, but it wasn't clear whether the justices would find that Jeffrey Heffernan has a case under the First Amendment.

Heffernan claims his superiors at the Paterson, New Jersey, Police Department violated his free speech rights in 2005 when they demoted him after mistakenly assuming he was backing a challenger in a local mayoral race.

It turns out Heffernan wasn't supporting the candidate, but was seen picking up a campaign sign for his mother. Lower courts ruled that the city didn't violate Heffernan's constitutional rights since he wasn't actually taking sides in the election.

The justices agreed during oral argument Tuesday that government officials cannot retaliate against public employees who exercise their rights under the First Amendment. But there was vigorous debate over what happens when public officials act based on a mistaken belief that an employee is involved in political activity.

"There's no constitutional right not to be fired for the wrong reason," Justice Antonin Scalia told Heffernan's attorney Mark Frost.

Frost said what matters is that Heffernan's superiors were trying to suppress his political speech. He said the fact that Heffernan was not campaigning doesn't matter since the government was motivated by the assumption he was.

"They went to stifle and squash his rights of association," Frost said.

Chief Justice John Roberts suggested that Heffernan could instead seek redress under state law or under collective bargaining protections.

"Maybe this shouldn't be a constitutional violation if there are adequate remedies to address what be or may not be a First Amendment case," Roberts said.

Other justices seemed troubled that the city could be off the hook just because officials were mistaken about what Heffernan was doing.

Justice Elena Kagan said under the city's rationale, an elected Democrat who comes into office can't demote or fire known Republicans but he could get rid of anyone "who is just politically apathetic."

The case began after another officer saw Heffernan carrying the sign for Lawrence Spagnola, a former Paterson police chief running for mayor. He was running against incumbent Jose Torres, who had the backing of the city's police chief and other police officials.

The day after Heffernan was seen holding the yard sign for Spagnola, his supervisors demoted him from detective to patrol officer walking the beat.

Heffernan initially won a $105,000 jury verdict against the city, but the judge later tossed the decision and recused himself due to a conflict of interest. A new judge dismissed the case and a federal appeals court affirmed.

Arguing for the city, lawyer Thomas Goldstein said the government's motive doesn't matter — it can't violate First Amendment rights unless a person is actually exercising those rights.

"It's a very sympathetic claim, ok? Goldstein said. "I get the fact that we are very concerned that public employees not be transferred or demoted, but we have other laws and other regimes that fill that gap."

Justice Anthony Kennedy expressed concern that, in the city's view, an employee has no right to stop the government from making a First Amendment judgment about his activities.

"You want this court to hold that the government of the United States has a right to ascribe to a citizen views that he or she does not hold," Kennedy said.

A decision in the case, Heffernan v. City of Patterson, New Jersey, 14-1280, is expected by late June.

Copyright 2016 The Associated Press

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