It is historically well-settled that for a constitutional violation to exist, a constitutional right must have been exercised. A public employee fired by his public employer for exercising political speech, conduct, or affiliation has an action against the employer.
But recently, the requisite causal connection between conduct and injury necessary to plead a Section 1983 claim against a public employer was upended by the Supreme Court in Heffernan v. City of Paterson, N.J. The Court held that a police officer who was demoted for perceived political affiliation, which by the officer’s own admission was not affiliation at all, had an actionable Section 1983 claim against the police department for First Amendment retaliation. Though the officer repeatedly admitted during years of litigation that he was not engaging in constitutionally protected conduct, the Supreme Court opened up a new avenue of recovery for injury which, as noted in Justice Thomas’ dissent, did not constitute injury at all.
This Note ultimately supports the conclusion reached in the dissenting opinion and argues that the majority opinion turns traditional First Amendment retaliation jurisprudence on its head by eliminating the requisite “causation in fact” element of pleading a sustainable Section 1983 claim. This Note further advocates that the majority missed an opportunity to refresh dormant freedom-of-assembly jurisprudence, which would have provided the petitioner relief without navigating around traditional pillars of Section 1983 and First Amendment jurisprudence.
Nothing to Gain, Nothing to Lose: How Heffernan v. City of Paterson, N.J., Creates Section 1983 Liability Absent a Deprived Right,
Loy. U. Chi. L. J.
Available at: https://lawecommons.luc.edu/luclj/vol49/iss1/6