Obama administration, religious freedom group, national union file briefs supporting Heffernan’s case | Paterson Times Paterson Times

Obama administration, religious freedom group, national union file briefs supporting Heffernan’s case

By Jayed Rahman
Published: December 1, 2015


The case of former city detective Jeffrey Heffernan, who was demoted for picking up an election sign from then-incumbent candidate mayor Jose “Joey” Torres’ opponent’s campaign office, received supportive friend-of-the-court briefs from president Barack Obama’s administration, the Becket Fund for Religious Liberty, and the National Association of Government Employees, according to U.S. Supreme Court records.

“A public employer violates the First Amendment when it takes action against an employee for associating with a disfavored political party, unless party affiliation is a reasonable requirement for the position in question,” reads friend-of-the-court supporting brief filed by Donald B. Verrilli, Jr., solicitor general of the United States. “A public employer acts equally unconstitutionally when it acts against the employee based on the mistaken belief that he has engaged in disfavored political activity. The employer that is both politically motivated and willing to act on unsubstantiated, ultimately incorrect suspicions should not be given a free pass to act with the purpose of suppressing its employees’ political beliefs.”

The country’s highest court is set to hear argument in the case on January 19th, 2016, according to the court. The nine-member high court will decide: “Whether the First Amendment bars the government from demoting a public employee based on a supervisor’s perception that the employee supports a political candidate.”

Heffernan’s case, filed in 2006, meandered its way up to the nation’s highest court following a series of messy court proceedings. In 2009, a jury found Torres and police chief James Wittig infringed on the detective’s freedom of association. The judge in the case later recused himself due to a conflict of interest vacating the jury verdict.

The case was transferred to another judge who ruled in favor of the city by finding Heffernan’s free speech claim failed because he was not engaging in protected speech. The detective said in court documents he was not involved politically in the 2006 mayoral election from which the case arose.

However, the detective’s free-association claim went unaddressed resulting in an appeal. Heffernan won the appeal on procedural grounds. A third district judge ruled in favor of the city because, the judge concluded, Heffernan, in picking up the lawn sign for his bedridden mother from Larry Spagnola’s campaign, had not actually intended to engage in political activity or associate with the former police chief’s campaign, according to court records.

Heffernan appealed the ruling. The court of appeals sided with the city because the detective was demoted to a walking post as a result of perceived political ties to Spagnola’s campaign. “A free-speech retaliation claim is actionable under only where the adverse action at issue was prompted by an employee’s actual, rather than perceived, exercise of constitutional rights,” read the appeals court’s decision.

“The rule adopted by the Third Circuit, which allows a government employer to take adverse employment actions against a public employee based on the employer’s misperception of the employee’s political association, fails to provide the clarity necessary to allow public employees to properly conform their conduct. Thus, the Third Circuit rule contradicts the long-standing principle requiring clarity in the law prior to adverse government action and should be rejected by this Court,” read the brief filed by National Association of Government Employees, a labor organization that represents thousands of government employees, in support of Heffernan.

“The Third Circuit rule has such a chilling effect on public employees’ conduct. The lack of clarity leaves public employees guessing as to which activities could cause a supervisor to misperceive their political associations, and leaves them without a remedy for any resulting adverse employment actions. This uncertainty pushes public employees to curtail protected conduct and thus impermissibly chills protected activities,” continued the labor organization’s brief.

The Becket Fund for Religious Liberty, a powerful Washington D.C.-based law firm, finds if the lower court ruling on the Heffernan case is allowed to stand it could limit religious assemblies.

“The Becket Fund is concerned that – if the Third Circuit’s decision is allowed to stand – the ability of religious people to engage in religious activity in concert with one another will be wrongly limited. It therefore advocates that the Court re-root the jurisprudence of collective rights in the text and history of the First Amendment,” reads the law firm’s amicus curiae, friend of the court, brief in support of Heffernan.

Heffernan was allegedly demoted by Torres after one of the mayor’s bodyguards saw him speaking to Spagnola’s campaign manager during the sign pick up. The bodyguard informed chief Wittig that Heffernan “was out hanging political signs in the second ward,” according to court documents.

The next day, Heffernan was questioned by a supervisor, and demoted for perceived political involvement with Spagnola.

Both Torres and Wittig are named in the lawsuit. The city has spent almost $560,000 in legal fees on Heffernan case.

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