POLITICS
01/21/2016 08:21 pm ET

A Cop Was Punished Over Politics, And His Political Bosses May Get Away With It

That is, if the Supreme Court allows it.
Can a police officer get demoted for his "perceived" political views? The U.S. Supreme Court seems unsure.
ASSOCIATED PRESS
Can a police officer get demoted for his "perceived" political views? The U.S. Supreme Court seems unsure.

WASHINGTON -- The U.S. Supreme Court isn't shy about entertaining partisan issues. But in the case of a New Jersey police officer who was punished for partisan reasons, it doesn't seem to know what to do.

The court this week heard arguments in Heffernan v. City of Paterson, a little-noticed First Amendment case that was dwarfed byTuesday's bigger news that President Barack Obama's executive actions on immigration will get a hearing later this year -- a political case if there ever was one.

But the case of ex-Paterson, New Jersey, detective Jeffrey Heffernan matters in its own right, if only to clarify whether the Constitution protects public employees who appear to espouse political views -- but really aren't espousing anything -- and are punished by their political bosses anyway.

In 2006, Heffernan was demoted from his post as detective after one of his superiors learned that the 20-year veteran had obtained a political lawn sign supporting a mayoral candidate looking to unseat José "Joey" Torres, Paterson's mayor.

Heffernan didn't pick up the yard sign for himself, but for his bedridden mother, whose old sign was stolen.

Without knowing this, a member of the mayor's security detail happened to spot Heffernan with the sign and snitched on him to the police chief. A day later, without an explanation, Heffernan was demoted to foot patrol.

That demotion formed the basis for a First Amendment lawsuit against the mayor and Heffernan's supervisors in federal court, in which the officer contended that his rights to free speech and association were violated. A jury agreed and awarded him $75,000, but the city of Paterson appealed -- leading to a years-long court battle that eventually wound his way to the Supreme Court.

You'd think this would be a no-brainer case for the justices -- a clear example of unconstitutional political retaliation. But at Tuesday's hearing, they didn't seem to know what to do. And at times, they seemed unsure that Heffernan even had a valid case against his bosses.

"He was not expressing any First Amendment view whatever," said Justice Antonin Scalia. "I mean, he was fired for the wrong reason, but there's no constitutional right not to be fired for the wrong reason."

"The First Amendment guarantees the right to freedom of speech and freedom of association." Scalia added. "Your client was neither speaking nor associating. So how could he possibly have a cause of action under the First Amendment?"

Mark Frost, Heffernan's lawyer, had a hard time addressing the justices' concerns and seemed to waver on whether his client could claim a constitutional violation when his politics weren't known to the chief of police or the mayor.

Chief Justice John Roberts said the fact the cop was punished for his mother's rather than his own politics was "simply a mistake of fact," and suggested there wasn't much the court could do under the First Amendment if there were other avenues of relief to Heffernan -- like civil service protections.

"I don't know why the right isn't the right to be free from arbitrary employment action based on a mistake," Roberts said. "That's his objection here. You made a mistake. You thought I was ... being politically active. I wasn't."

Justice Elena Kagan seemed skeptical that the First Amendment protects those with well-defined political views, but not "ever
Paul Morigi via Getty Images
Justice Elena Kagan seemed skeptical that the First Amendment protects those with well-defined political views, but not "every couch potato" who doesn't.

As a kind of gatekeeper for federal courts, Roberts' expressed a concern for a future "flood of meritless lawsuits" by people complaining of retaliation for "perceived" politics were none exist. But even that perception, without a clear constitutional rule, could give mischievous state actors carte blanche to do as they please.

"Yes, so here, the government acted. No question they demoted the person," said Justice Ruth Bader Ginsburg in an exchange with the lawyer for the city of Paterson. "This was a detective, and they put him back on the beat. So the government acted. Why did they act? Because they thought that this person was engaging in political activity."

Justice Elena Kagan told the city lawyer that allowing this behavior to go unchecked under the Constitution could lead to absurd results -- like no consequences for the political boss who decides to fire "every couch potato" without well-defined political views just because.

"Replace them all with Democrats, change the entire character of the office, do it for a reason that I prefer one political view to any other, and that that will not be a violation of the First Amendment," said Kagan, herself a Democratic appointee to the Supreme Court.

To Kagan, it just seemed anomalous that the Constitution protects avowed Republicans or Democrats in public jobs, but not those who are "politically apathetic" -- the average Joes and Janes of America who "really could not care less" about who's running for office or running things.

"They don't vote, they don't pay attention, they wouldn't know who was running," Kagan said. "But the government can punish that person because that person doesn't share the government's views."

That, she added, "is one strange doctrine."

A decision is likely before the end of June.

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