No Civil Rights Act Claim by Demoted Municipal Employee Where He Did Not Actually Exercise First Amendment Rights

Heffernan v. City of Paterson, 777 F.3d 147 (3d Cir. 2015).  [Disclosure:  Victor A. Afanador and Susana Cruz Hodge, my colleagues at Lite DePalma Greenberg, LLC, represented the successful appellees in this case]  Jeffrey Heffernan was a police officer in the City of Paterson.  In 2006, he was observed picking up a campaign sign for the opponent of Paterson’s incumbent mayor.  Heffernan was demoted after that, allegedly because of that incident.  The demotion occurred even though Heffernan protested that he had picked up the sign at the request of his mother, and that he himself “wasn’t politically involved,” was merely “picking up a sign for [his] mom,” and in fact, could not vote in the election because he did not live in Paterson.  Heffernan brought suit under the Civil Rights Act, 42 U.S.C. §1983, against the City, the mayor, and two high-ranking police officials for alleged violation of his First Amendment rights to freedom of speech and freedom of association.

After a District Judge denied motions for summary judgment without allowing opposition briefs to be filed, a trial occurred on the freedom of association claim only, and Heffernan won a damage award.  But the judge who oversaw that trial retroactively recused himself and vacated the award since the trial never should have occurred before him.  The case was reassigned to a new District Judge, who revisited the summary judgment motions.  Like the first judge, however, the second judge did not permit the filing of opposition briefs.  The second judge granted defendants’ motion for summary judgment on the freedom of speech claim but did not address the freedom of association claim, the one on which plaintiff had prevailed at the prior trial.  Plaintiff appealed, and the Third Circuit reversed in a not precedential opinion, finding that the District Court had erred in not allowing opposition briefing and not addressing the freedom of association claim.

On remand, the case was assigned to a third District Judge, Judge McNulty.  He permitted a full round of new briefing on the summary judgment motions, and then granted summary judgment for defendants on all claims.  Judge McNulty concluded that plaintiff “had failed to produce evidence that he actually exercised his First Amendment rights,” and that he could not sue for alleged retaliation “based only on the perceived exercise of those rights.”  Plaintiff appealed, but the Third Circuit, exercising plenary review and viewing the evidence in a light most favorable to plaintiff, affirmed in an opinion by Judge Vanaskie.

“The First Amendment generally prohibits a public employer from disciplining, demoting, or firing an employee based on that employee’s exercise of First Amendment rights ….”  But here, there was no evidence that plaintiff was actually exercising First Amendment rights.  He was picking up a sign for someone else, and he “repeatedly disavowed anything resembling ‘an intent to convey a particularized message.'”  As a result of plaintiff’s own statements, “no room exists for a jury to find that Heffernan intended to convey a political message when he picked up the sign at issue.”

Plaintiff also contended that Judge McNulty should not have considered defendants’ summary judgment motion regarding the freedom of association claim since that claim had already gone to a jury and plaintiff had prevailed, so there must have been sufficient evidence to support that claim.  But Judge Vanaskie observed that defendants had never received “a procedurally sound ruling” on their motion for summary judgment that preceded that trial, so that defendants were not foreclosed from renewing that motion with full briefing before Judge McNulty.  Nor did anything in the Third Circuit’s previous opinion in this case bar Judge McNulty from addressing defendants’ motion for summary judgment on the freedom of association claim.

Finally, plaintiff contended that even if he did not actually exercise First Amendment rights, he should have been able to proceed to trial because defendants had retaliated based on their “incorrect or unfounded belief” that he had in fact exercised First Amendment rights.  Judge Vanaskie found that argument “squarely foreclosed by our own binding precedent, which holds 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.”  He cited two Third Circuit cases, and noted that every other Circuit to address the issue in the context of a free speech claim had reached the same conclusion.  Judge Vanaskie then rejected an attempt by plaintiff to create a different rule for freedom of asssociation claims, an argument that was based on cases from outside the Third Circuit that the anel found did not support plaintiff’s position.