U.S. justices split on New Jersey cop's political retaliation claim

Reuters News
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Posted: Jan 19, 2016 2:55 PM

By Robert Iafolla

WASHINGTON (Reuters) - The U.S. Supreme Court appeared split on Tuesday as it considered whether a New Jersey cop could bring a retaliation lawsuit claiming he was demoted because his boss mistakenly thought he was supporting a political rival in a local election.

The nine-member court’s conservative justices seemed hostile to the notion that former Paterson police detective Jeffrey Heffernan could sue for a violation of his right to freedom of association under the U.S. Constitution's First Amendment when he did not actually exercise those rights.

The day before Heffernan was demoted, an aide to then-incumbent Paterson mayor Jose Torres saw Heffernan getting a campaign sign backing another mayoral candidate. Heffernan said he got the sign while off-duty as a favor to his bedridden mother, but that the sign did not reflect his personal preference in the mayoral election.

The police department demoted him from detective and transferred him to the traffic division's walking squad, a move he saw as political retaliation.

"I mean, he was fired for the wrong reason, but there's no constitutional right not to be fired for the wrong reason," conservative Justice Antonin Scalia said during oral argument.

Heffernan is seeking to reverse a 2015 ruling by the Philadelphia-based 3rd U.S. Circuit Court of Appeals dismissing his lawsuit. That court said the First Amendment retaliation claim cannot be based on an employer's perception of a worker's actions.

Heffernan first filed his lawsuit in 2006. Procedural oddities, including a jury verdict that was wiped out because the presiding judge recused himself after the trial was completed, have kept the case tied up in litigation for years.

The high court’s liberal justices including Stephen Breyer seemed concerned that allowing city officials to demote Heffernan based on an inaccurate view of his political activities could chill government employees' exercise of their First Amendment rights.

Conservative Chief Justice John Roberts questioned whether allowing Heffernan to sue on First Amendment grounds would open the floodgates to frivolous lawsuits. Roberts also pointed out that Heffernan could have fought his demotion through his union's grievance process or by suing under state law.

Justice Anthony Kennedy, who often casts the deciding vote in close cases, appeared to search for a constitutional right that the city of Paterson may have violated by demoting Heffernan based on what it thought about his political beliefs.

Kennedy suggested that individuals could have the right to be free from the government evaluating their political attitudes and ascribing to them views they do not hold.

(Reporting by Robert Iafolla; Editing by Alexia Garamfalvi and Will Dunham)