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Labor and Employment Law

U.S. Supreme Court Agrees to Hear Demoted Detective’s Free Speech Appeal

WASHINGTON, D.C. — (Mealey's) The U.S. Supreme Court on Oct. 1 granted a petition for writ of certiorari filed by a police detective after the Third Circuit U.S. Court of Appeals determined earlier this year that he failed to prove his case claiming that he was demoted in violation of the First Amendment to the U.S. Constitution after he was perceived as being involved in a political campaign (Jeffrey J. Heffernan v. City of Paterson, New Jersey, et al., No. 14-1280, U.S. Sup.).

Campaign Sign

Jeffrey Heffernan joined the Paterson, N.J., Police Department in 1985. In late 2005, he was promoted to detective and assigned to an administrative detail in the office of the chief of police.

In April 2006, a former Paterson police chief and close friend of Heffernan’s, Lawrence Spagnola, was pursuing a bid to unseat the then-incumbent mayor, Jose Torres. Heffernan did not reside in the city, so he could not vote for Spagnola, did not work on his campaign and did not consider himself “politically involved” with the campaign.

On April 13, 2006, Heffernan’s bedridden mother asked Heffernan to go and pick up a large Spagnola campaign sign to replace the smaller one that had been stolen from her lawn. Heffernan drove to Paterson and picked up the law sign form a distribution point and then drove it to his mother’s house where he left it for another family member to erect.


A Paterson police officer assigned to Torres’ security staff observed Heffernan’s brief encounter with the Spagnola campaign manager when Heffernan picked up the sign. Word of the encounter spread quickly. The next day, one of Heffernan’s supervisors confronted him about his interaction with Spagnola’s campaign staff.

Heffernan stated that he “wasn’t politically involved” and was just picking up a sign for his mother. Nevertheless, Heffernan was immediately demoted to a “walking post” based on “overt involvement in a political election.”

In August 2006, Heffernan sued the city, Torres, the police chief and the police director in the U.S. District Court for the District of New Jersey under 42 U.S. Code Section 1983. The precise nature of the claims were debated, but neither side appealed the District Court’s conclusion that the complaint states claims for retaliatory demotion based on Heffernan’s exercise of the right to freedom of speech and retaliatory demotion based on his exercise of the right to freedom of association.

The parties cross-moved for summary judgment. Judge Peter G. Sheridan refused to allow the filing of briefs in opposition. He denied both motions. However, Heffernan proceeded to trial on only his free association claim. A jury verdict was returned in his favor, and he was awarded $105,000. After trial, Judge Peter G. Sheridan, who was assigned to the matter, retroactively recused himself based on what he concluded was a conflict of interest and vacated the jury’s verdict.

Case Reassigned

The case was reassigned to Judge Dennis M. Cavanaugh, who revisited the parties’ motions for summary judgment but also refused to allow opposition briefs. He granted summary judgment for the defendants on the free expression claim but entirely failed to address the free association claim.

On appeal, the Third Circuit ruled that the District Court had erred by granting summary judgment without allowing the parties to file briefs in opposition and by failing to consider the viability of Heffernan’s free association claim. 

On remand, the case was reassigned to Judge Kevin McNulty, who permitted a full round of fresh briefing on the parties’ cross-motions for summary judgment. In a March 5, 2014, Judge McNulty concluded that Heffernan had adequately pleaded and prosecuted his free association claim. He nonetheless found that Heffernan had failed to produce evidence that he actually exercised his First Amendment rights and, in the alternative, Heffernan was foreclosed from seeking compensation under Section 1983 for retaliation based only on the perceived exercise of those rights. Accordingly, Judge McNulty granted summary judgment in favor of the defendants. Heffernan appealed.

Judgment Affirmed

The Third Circuit panel affirmed Jan. 22, 2015. It rejected Heffernan’s first argument that the District Court improperly considered the merits of the defendants’ motion for summary judgment on his free association claim.

Next, the panel rejected Heffernan’s claim that the District Court erred in granting summary judgment on his free speech and free association claims insofar as they are predicated on the allegation that he suffered retaliation for actually engaging in speech or conduct protected under the First Amendment to the U.S. Constitution.

“[N]o room exists for a jury to find that Heffernan intended to convey a political message when he picked up the sign at issue. . . . [And] Heffernan himself confirmed that regardless of what others may have perceived, he did not have any affiliation with the campaign other than the cursory contact necessary for him to pick up the sign for his mother. Consequently, the record is insufficient to allow a jury to return a verdict in Heffernan’s favor on his claim of retaliation based on the actual exercise of his right to freedom of association,” Judge Thomas I. Vanaskie wrote for the panel.

Alternative Argument

Turning to Heffernan’s alternative argument that he is entitled to proceed with both claims under a “perceived-support” theory, the panel ruled “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. . . . All of our sister circuits to consider this issue in the context of a free-speech claim have reached the same conclusion. . . . Because Heffernan provides no convincing reason to distinguish these cases, the District Court correctly denied Heffernan’s alternative basis for relief with respect to his free-speech claim.”

Judges Morton I. Greenberg and Robert E. Cowen joined in the opinion.

Heffernan filed a petition for writ of certiorari on April 22.

Mark B. Frost of Philadelphia represents Heffernan. Victor A. Afandor of Lite DePalma Greenberg in Newark, N.J., represents the appellees. Police Chief James Wittig is represented by Thomas P. Scrivo of McElroy, Deutsch, Mulvaney & Carpenter in Newark.

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