Thursday, November 17, 2016
Michael Wells has posted to SSRN What did the Supreme Court Hold in Heffernan v. City of Paterson?. The abstract provides:
As a favor to his mother, Jeffrey Heffernan picked up a political yard sign. His supervisors demoted him, in the mistaken belief that he had engaged in protected speech. In Heffernan v. City of Patterson, 136 S.Ct. 1412 (2016), the Supreme Court held that a public employee can sue a local government under 42 U.S.C. § 1983 when a supervisor acts for constitutionally impermissible motives, even though he has not in fact exercised First Amendment rights. But the grounds for that holding are unclear. The Court may have ruled that the city, through its police chief, violated Heffernan’s First Amendment rights despite the lack of speech on his part. Or it may have ruled that the City is liable on § 1983 “official policy” grounds, even though it violated no constitutional right. This article examines each of these and argues that neither withstands scrutiny. A more convincing rationale for the outcome is that the Court in effect recognized a constitutional common law right. Alternatively, the arbitrary demotion may support recovery under the Equal Protection Clause on a “class of one” theory, though Jeffrey Heffernan did not pursue that approach and current doctrine seems hostile to it.