Heffernan v. City of Paterson , 136 S. Ct. 1412 ( 2016 )

(Slip Opinion) OCTOBER TERM, 2015 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
HEFFERNAN v. CITY OF PATERSON, NEW JERSEY,
ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE THIRD CIRCUIT
No. 14–1280. Argued January 19, 2016—Decided April 26, 2016
Petitioner Heffernan was a police officer working in the office of Pater-
son, New Jersey’s chief of police. Both the chief of police and Heffer-
nan’s supervisor had been appointed by Paterson’s incumbent mayor,
who was running for re-election against Lawrence Spagnola, a good
friend of Heffernan’s. Heffernan was not involved in Spagnola’s
campaign in any capacity. As a favor to his bedridden mother, Hef-
fernan agreed to pick up and deliver to her a Spagnola campaign
yard sign. Other police officers observed Heffernan speaking to staff
at a Spagnola distribution point while holding the yard sign. Word
quickly spread throughout the force. The next day, Heffernan’s su-
pervisors demoted him from detective to patrol officer as punishment
for his “overt involvement” in Spagnola’s campaign. Heffernan filed
suit, claiming that the police chief and the other respondents had
demoted him because, in their mistaken view, he had engaged in
conduct that constituted protected speech. They had thereby
“depriv[ed]” him of a “right . . . secured by the Constitution.” 42
U.S. C. §1983. The District Court, however, found that Heffernan
had not been deprived of any constitutionally protected right because
he had not engaged in any First Amendment conduct. Affirming, the
Third Circuit concluded that Heffernan’s claim was actionable under
§1983 only if his employer’s action was prompted by Heffernan’s ac-
tual, rather than his perceived, exercise of his free-speech rights.
Held:
1. When an employer demotes an employee out of a desire to pre-
vent the employee from engaging in protected political activity, the
employee is entitled to challenge that unlawful action under the First
Amendment and §1983 even if, as here, the employer’s actions are
2 HEFFERNAN v. CITY OF PATERSON
Syllabus
based on a factual mistake about the employee’s behavior. To answer
the question whether an official’s factual mistake makes a critical le-
gal difference, the Court assumes that the activities that Heffernan’s
supervisors mistakenly thought he had engaged in are of a kind that
they cannot constitutionally prohibit or punish. Section 1983 does
not say whether the “right” protected primarily focuses on the em-
ployee’s actual activity or on the supervisor’s motive. Neither does
precedent directly answer the question. In Connick v. Myers, 461
U.S. 138, Garcetti v. Ceballos, 547 U.S. 410, and Pickering v. Board
of Ed. of Township High School Dist. 205, Will Cty., 391 U.S. 563,
there were no factual mistakes: The only question was whether the
undisputed reason for the adverse action was in fact protected by the
First Amendment. However, in Waters v. Churchill, 511 U.S. 661, a
government employer’s adverse action was based on a mistaken be-
lief that an employee had not engaged in protected speech. There,
this Court determined that the employer’s motive, and particularly
the facts as the employer reasonably understood them, mattered in
determining that the employer had not violated the First Amend-
ment. The government’s motive likewise matters here, where re-
spondents demoted Heffernan on the mistaken belief that he had en-
gaged in protected speech. A rule of law finding liability in these
circumstances tracks the First Amendment’s language, which focuses
upon the Government’s activity. Moreover, the constitutional harm—
discouraging employees from engaging in protected speech or associa-
tion—is the same whether or not the employer’s action rests upon a
factual mistake. Finally, a rule of law imposing liability despite the
employer’s factual mistake is not likely to impose significant extra
costs upon the employer, for the employee bears the burden of prov-
ing an improper employer motive. Pp. 3–8.
2. For the purposes of this opinion, the Court has assumed that
Heffernan’s employer demoted him out of an improper motive. How-
ever, the lower courts should decide in the first instance whether re-
spondents may have acted under a neutral policy prohibiting police
officers from overt involvement in any political campaign and wheth-
er such a policy, if it exists, complies with constitutional standards.
P. 8.
777 F.3d 147, reversed and remanded.
BREYER, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and KENNEDY, GINSBURG, SOTOMAYOR, and KAGAN, JJ., joined.
THOMAS, J., filed a dissenting opinion, in which ALITO, J., joined.
Cite as: 578 U. S. ____ (2016) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 14–1280
_________________
JEFFREY J. HEFFERNAN, PETITIONER v. CITY OF
PATERSON, NEW JERSEY, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT
[April 26, 2016]
JUSTICE BREYER delivered the opinion of the Court.
The First Amendment generally prohibits government
officials from dismissing or demoting an employee because
of the employee’s engagement in constitutionally protected
political activity. See Elrod v. Burns, 427 U.S. 347 (1976);
Branti v. Finkel, 445 U.S. 507 (1980); but cf. Civil Service
Comm’n v. Letter Carriers, 413 U.S. 548, 564 (1973). In
this case a government official demoted an employee
because the official believed, but incorrectly believed, that
the employee had supported a particular candidate for
mayor. The question is whether the official’s factual
mistake makes a critical legal difference. Even though the
employee had not in fact engaged in protected political
activity, did his demotion “deprive” him of a “right . . .
secured by the Constitution”? 42 U.S. C. §1983. We hold
that it did.
I
To decide the legal question presented, we assume the
following, somewhat simplified, version of the facts: In
2005, Jeffrey Heffernan, the petitioner, was a police officer
in Paterson, New Jersey. He worked in the office of the
2 HEFFERNAN v. CITY OF PATERSON
Opinion of the Court
Chief of Police, James Wittig. At that time, the mayor of
Paterson, Jose Torres, was running for reelection against
Lawrence Spagnola. Torres had appointed to their current
positions both Chief Wittig and a subordinate who directly
supervised Heffernan. Heffernan was a good friend of
Spagnola’s.
During the campaign, Heffernan’s mother, who was
bedridden, asked Heffernan to drive downtown and pick
up a large Spagnola sign. She wanted to replace a smaller
Spagnola sign, which had been stolen from her front yard.
Heffernan went to a Spagnola distribution point and
picked up the sign. While there, he spoke for a time to
Spagnola’s campaign manager and staff. Other members
of the police force saw him, sign in hand, talking to cam-
paign workers. Word quickly spread throughout the force.
The next day, Heffernan’s supervisors demoted Heffer-
nan from detective to patrol officer and assigned him to a
“walking post.” In this way they punished Heffernan for
what they thought was his “overt involvement” in Spag-
nola’s campaign. In fact, Heffernan was not involved in
the campaign but had picked up the sign simply to help his
mother. Heffernan’s supervisors had made a factual
mistake.
Heffernan subsequently filed this lawsuit in federal
court. He claimed that Chief Wittig and the other re-
spondents had demoted him because he had engaged in
conduct that (on their mistaken view of the facts) consti-
tuted protected speech. They had thereby “depriv[ed]”
him of a “right . . . secured by the Constitution.” Rev. Stat.
§1979, 42 U.S. C. §1983.
The District Court found that Heffernan had not en-
gaged in any “First Amendment conduct,” 2 F. Supp. 3d
563, 580 (NJ 2014); and, for that reason, the respondents
had not deprived him of any constitutionally protected
right. The Court of Appeals for the Third Circuit affirmed.
It wrote that “a free-speech retaliation claim is actionable
Cite as: 578 U. S. ____ (2016) 3
Opinion of the Court
under §1983 only where the adverse action at issue was
prompted by an employee’s actual, rather than perceived,
exercise of constitutional rights.” 777 F.3d 147, 153
(2015) (citing Ambrose v. Robinson, 303 F.3d 488, 496
(CA3 2002); emphasis added). Heffernan filed a petition
for certiorari. We agreed to decide whether the Third
Circuit’s legal view was correct. Compare 777 F.3d, at
153 (case below), with Dye v. Office of Racing Comm’n, 702
F.3d 286, 300 (CA6 2012) (similar factual mistake does
not affect the validity of the government employee’s
claim).
II
With a few exceptions, the Constitution prohibits a
government employer from discharging or demoting an
employee because the employee supports a particular
political candidate. See Elrod v. Burns, supra; Branti v.
Finkel, supra. The basic constitutional requirement re-
flects the First Amendment’s hostility to government
action that “prescribe[s] what shall be orthodox in poli-
tics.” West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624,
642 (1943). The exceptions take account of “practical
realities” such as the need for “efficiency” and “effec-
tive[ness]” in government service. Waters v. Churchill,
511 U.S. 661, 672, 675 (1994); see also Civil Service
Comm’n, supra, at 564 (neutral and appropriately limited
policy may prohibit government employees from engaging
in partisan activity), and Branti, supra, at 518 (political
affiliation requirement permissible where affiliation is “an
appropriate requirement for effective performance of the
public office involved”).
In order to answer the question presented, we assume
that the exceptions do not apply here. But see infra, at 8.
We assume that the activities that Heffernan’s supervisors
thought he had engaged in are of a kind that they cannot
constitutionally prohibit or punish, see Rutan v. Republi-
4 HEFFERNAN v. CITY OF PATERSON
Opinion of the Court
can Party of Ill., 497 U.S. 62, 69 (1990) (“joining, working
for or contributing to the political party and candidates of
their own choice”), but that the supervisors were mistaken
about the facts. Heffernan had not engaged in those
protected activities. Does Heffernan’s constitutional case
consequently fail?
The text of the relevant statute does not answer the
question. The statute authorizes a lawsuit by a person
“depriv[ed]” of a “right . . . secured by the Constitution.”
42 U.S. C. §1983. But in this context, what precisely is
that “right?” Is it a right that primarily focuses upon (the
employee’s) actual activity or a right that primarily fo-
cuses upon (the supervisor’s) motive, insofar as that motive
turns on what the supervisor believes that activity to be?
The text does not say.
Neither does precedent directly answer the question. In
some cases we have used language that suggests the
“right” at issue concerns the employee’s actual activity. In
Connick v. Myers, 461 U.S. 138 (1983), for example, we
said that a court should first determine whether the plain-
tiff spoke “ ‘as a citizen’ ” on a “ ‘matter[] of public con-
cern,’ ” id., at 143. We added that, if the employee has not
engaged in what can “be fairly characterized as constitut-
ing speech on a matter of public concern, it is unnecessary
for us to scrutinize the reasons for her discharge.” Id., at
146. We made somewhat similar statements in Garcetti v.
Ceballos, 547 U.S. 410, 418 (2006), and Pickering v. Board
of Ed. of Township High School Dist. 205, Will Cty., 391
U.S. 563 (1968).
These cases, however, did not present the kind of ques-
tion at issue here. In Connick, for example, no factual
mistake was at issue. The Court assumed that both the
employer and the employee were at every stage in agree-
ment about the underlying facts: that the employer dis-
missed the employee because of her having circulated
within the office a document that criticized how the office
Cite as: 578 U. S. ____ (2016) 5
Opinion of the Court
was being run (that she had in fact circulated). The ques-
tion was whether the circulation of that document
amounted to constitutionally protected speech. If not, the
Court need go no further.
Neither was any factual mistake at issue in Pickering.
The Court assumed that both the employer (a school
board) and the employee understood the cause for dismis-
sal, namely, a petition that the employee had indeed
circulated criticizing his employer’s practices. The ques-
tion concerned whether the petition was protected
speech. Garcetti is substantially similar. In each of these
cases, the only way to show that the employer’s motive
was unconstitutional was to prove that the controver-
sial statement or activity—in each case the undisputed
reason for the firing—was in fact protected by the First
Amendment.
Waters v. Churchill, 511 U.S. 661 (1994), is more to the
point. In that case the Court did consider the consequences
of an employer mistake. The employer wrongly, though
reasonably, believed that the employee had spoken only on
personal matters not of public concern, and the employer
dismissed the employee for having engaged in that unpro-
tected speech. The employee, however, had in fact used
words that did not amount to personal “gossip” (as the
employer believed) but which focused on matters of public
concern. The Court asked whether, and how, the employ-
er’s factual mistake mattered.
The Court held that, as long as the employer (1) had
reasonably believed that the employee’s conversation had
involved personal matters, not matters of public concern,
and (2) had dismissed the employee because of that mis-
taken belief, the dismissal did not violate the First
Amendment. Id., at 679–680. In a word, it was the em-
ployer’s motive, and in particular the facts as the employer
reasonably understood them, that mattered.
In Waters, the employer reasonably but mistakenly
6 HEFFERNAN v. CITY OF PATERSON
Opinion of the Court
thought that the employee had not engaged in protected
speech. Here the employer mistakenly thought that the
employee had engaged in protected speech. If the employ-
er’s motive (and in particular the facts as the employer
reasonably understood them) is what mattered in Waters,
why is the same not true here? After all, in the law, what
is sauce for the goose is normally sauce for the gander.
We conclude that, as in Waters, the government’s reason
for demoting Heffernan is what counts here. When an
employer demotes an employee out of a desire to prevent
the employee from engaging in political activity that the
First Amendment protects, the employee is entitled to
challenge that unlawful action under the First Amend-
ment and 42 U.S. C. §1983—even if, as here, the employer
makes a factual mistake about the employee’s behavior.
We note that a rule of law finding liability in these
circumstances tracks the language of the First Amend-
ment more closely than would a contrary rule. Unlike,
say, the Fourth Amendment, which begins by speaking of
the “right of the people to be secure in their persons, houses,
papers, and effects . . . ,” the First Amendment begins
by focusing upon the activity of the Government. It says
that “Congress shall make no law . . . abridging the free-
dom of speech.” The Government acted upon a constitu-
tionally harmful policy whether Heffernan did or did not
in fact engage in political activity. That which stands for a
“law” of “Congress,” namely, the police department’s rea-
son for taking action, “abridge[s] the freedom of speech” of
employees aware of the policy. And Heffernan was di-
rectly harmed, namely, demoted, through application of
that policy.
We also consider relevant the constitutional implica-
tions of a rule that imposes liability. The constitutional
harm at issue in the ordinary case consists in large part of
discouraging employees—both the employee discharged
(or demoted) and his or her colleagues—from engaging in
Cite as: 578 U. S. ____ (2016) 7
Opinion of the Court
protected activities. The discharge of one tells the others
that they engage in protected activity at their peril. See,
e.g., Elrod, 427 U.S., at 359 (retaliatory employment
action against one employee “unquestionably inhibits
protected belief and association” of all employees). Hence,
we do not require plaintiffs in political affiliation cases to
“prove that they, or other employees, have been coerced
into changing, either actually or ostensibly, their political
allegiance.” Branti, 445 U.S., at 517. The employer’s
factual mistake does not diminish the risk of causing
precisely that same harm. Neither, for that matter, is
that harm diminished where an employer announces a
policy of demoting those who, say, help a particular candi-
date in the mayoral race, and all employees (including
Heffernan), fearful of demotion, refrain from providing
any such help. Cf. Gooding v. Wilson, 405 U.S. 518, 521
(1972) (explaining that overbreadth doctrine is necessary
“because persons whose expression is constitutionally
protected may well refrain from exercising their rights for
fear of criminal sanctions”). The upshot is that a dis-
charge or demotion based upon an employer’s belief that
the employee has engaged in protected activity can cause
the same kind, and degree, of constitutional harm whether
that belief does or does not rest upon a factual mistake.
Finally, we note that, contrary to respondents’ asser-
tions, a rule of law that imposes liability despite the em-
ployer’s factual mistake will not normally impose signifi-
cant extra costs upon the employer. To win, the employee
must prove an improper employer motive. In a case like
this one, the employee will, if anything, find it more diffi-
cult to prove that motive, for the employee will have to
point to more than his own conduct to show an employer’s
intent to discharge or to demote him for engaging in what
the employer (mistakenly) believes to have been different
(and protected) activities. We concede that, for that very
reason, it may be more complicated and costly for the
8 HEFFERNAN v. CITY OF PATERSON
Opinion of the Court
employee to prove his case. But an employee bringing suit
will ordinarily shoulder that more complicated burden
voluntarily in order to recover the damages he seeks.
III
We now relax an assumption underlying our decision.
We have assumed that the policy that Heffernan’s em-
ployers implemented violated the Constitution. Supra, at
3. There is some evidence in the record, however, suggest-
ing that Heffernan’s employers may have dismissed him
pursuant to a different and neutral policy prohibiting
police officers from overt involvement in any political
campaign. See Brief for United States as Amicus Curiae
27–28. Whether that policy existed, whether Heffernan’s
supervisors were indeed following it, and whether it com-
plies with constitutional standards, see Civil Service
Comm’n, 413 U.S., at 564, are all matters for the lower
courts to decide in the first instance. Without expressing
views on the matter, we reverse the judgment of the Third
Circuit and remand the case for such further proceedings
consistent with this opinion.
It is so ordered.
Cite as: 578 U. S. ____ (2016) 1
THOMAS, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 14–1280
_________________
JEFFREY J. HEFFERNAN, PETITIONER v. CITY OF
PATERSON, NEW JERSEY, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT
[April 26, 2016]
JUSTICE THOMAS, with whom JUSTICE ALITO joins,
dissenting.
Today the Court holds that a public employee may bring
a federal lawsuit for money damages alleging a violation of
a constitutional right that he concedes he did not exercise.
Ante, at 1. Because federal law does not provide a cause of
action to plaintiffs whose constitutional rights have not
been violated, I respectfully dissent.
I
This lawsuit concerns a decision by the city of Paterson,
New Jersey (hereinafter City), to demote one of its police
officers, Jeffrey Heffernan. At the time of Heffernan’s
demotion, Paterson’s mayor, Jose Torres, was running for
reelection against one of Heffernan’s friends, Lawrence
Spagnola. The police chief demoted Heffernan after an-
other officer assigned to Mayor Torres’ security detail
witnessed Heffernan pick up a Spagnola campaign sign
when Heffernan was off duty. Heffernan claimed that he
picked up the sign solely as an errand for his bedridden
mother. Heffernan denied supporting or associating with
Spagnola’s campaign and disclaimed any intent to com-
municate support for Spagnola by retrieving the campaign
sign. Despite Heffernan’s assurances that he was not
engaged in protected First Amendment activity, he filed
2 HEFFERNAN v. CITY OF PATERSON
THOMAS, J., dissenting
this lawsuit alleging that his employer violated his First
Amendment rights by demoting him based on its mistaken
belief that Heffernan had communicated support for the
Spagnola campaign.
II
Title 42 U.S. C. §1983 provides a cause of action against
“[e]very person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State . . . subjects . . .
any citizen of the United States . . . to the deprivation of
any rights, privileges, or immunities secured by the Con-
stitution.” For Heffernan to prevail on his §1983 claim,
then, a state actor must have deprived him of a constitu-
tional right. Nothing in the text of §1983 provides a rem-
edy against public officials who attempt but fail to violate
someone’s constitutional rights.
There are two ways to frame Heffernan’s First Amend-
ment claim, but neither can sustain his suit. As in most
§1983 suits, his claim could be that the City interfered
with his freedom to speak and assemble. But because
Heffernan has conceded that he was not engaged in pro-
tected speech or assembly when he picked up the sign, the
majority must resort to a second, more novel framing. It
concludes that Heffernan states a §1983 claim because the
City unconstitutionally regulated employees’ political
speech and Heffernan was injured because that policy
resulted in his demotion. See ante, at 6. Under that
theory, too, Heffernan’s §1983 claim fails. A city’s policy,
even if unconstitutional, cannot be the basis of a §1983
suit when that policy does not result in the infringement
of the plaintiff ’s constitutional rights.
A
To state a claim for retaliation in violation of the First
Amendment, public employees like Heffernan must allege
that their employer interfered with their right to speak as
Cite as: 578 U. S. ____ (2016) 3
THOMAS, J., dissenting
a citizen on a matter of public concern. Whether the
employee engaged in such speech is the threshold inquiry
under the Court’s precedents governing whether a public
employer violated the First Amendment rights of its em-
ployees. See Garcetti v. Ceballos, 547 U.S. 410, 418
(2006). If the employee has not spoken on a matter of
public concern, “the employee has no First Amendment
cause of action based on his or her employer’s reaction to
the speech.” Ibid. If the employee did, however, speak as
a citizen on a matter of public concern, then the Court
looks to “whether the relevant government entity had an
adequate justification for treating the employee differently
from any other member of the general public.” Ibid.
Under this framework, Heffernan’s claim fails at the
first step. He has denied that, by picking up the yard sign,
he “spoke as a citizen on a matter of public concern.” Ibid.
In fact, Heffernan denies speaking in support of or associ-
ating with the Spagnola campaign. He has claimed that
he picked up the yard sign only as an errand for his
bedridden mother. Demoting a dutiful son who aids his
elderly, bedridden mother may be callous, but it is not
unconstitutional.
To be sure, Heffernan could exercise his First Amend-
ment rights by choosing not to assemble with the Spagnola
campaign. Cf. Harper & Row, Publishers, Inc. v. Nation
Enterprises, 471 U.S. 539, 559 (1985) (freedom of expres-
sion “includes both the right to speak freely and the right
to refrain from speaking at all” (internal quotation marks
omitted)). But such an allegation could not save his claim
here. A retaliation claim requires proving that Heffer-
nan’s protected activity was a cause-in-fact of the retalia-
tion. See University of Tex. Southwestern Medical Center
v. Nassar, 570 U. S. ___, ___ (2013) (slip op., at 23). And
Heffernan’s exercise of his right not to associate with the
Spagnola campaign did not cause his demotion. Rather,
his perceived association with the Spagnola campaign did.
4 HEFFERNAN v. CITY OF PATERSON
THOMAS, J., dissenting
At bottom, Heffernan claims that the City tried to inter-
fere with his constitutional rights and failed. But it is not
enough for the City to have attempted to infringe his First
Amendment rights. To prevail on his claim, he must
establish that the City actually did so. The City’s attempt
never ripened into an actual violation of Heffernan’s con-
stitutional rights because, unbeknownst to the City, Hef-
fernan did not support Spagnola’s campaign.
Though, in criminal law, a factually impossible attempt
like the City’s actions here could constitute an attempt,*
there is no such doctrine in tort law. A plaintiff may
maintain a suit only for a completed tort; “[t]here are no
attempted torts.” United States v. Stefonek, 179 F.3d
1030, 1036 (CA7 1999) (internal quotation marks omitted);
see also Sebok, Deterrence or Disgorgement? Reading
Ciraolo After Campbell, 64 Md. L. Rev. 541, 565 (2005)
(same). And “there can be no doubt that claims brought
pursuant to §1983 sound in tort.” Monterey v. Del Monte
Dunes at Monterey, Ltd., 526 U.S. 687, 709 (1999). Be-
cause Heffernan could claim at most that the City at-
tempted to interfere with his First Amendment rights, he
cannot prevail on a claim under the theory that the City
infringed his right to speak freely or assemble.
B
To get around this problem of factual impossibility, the
majority reframes Heffernan’s case as one about the City’s
lack of power to act with unconstitutional motives. See
——————
* Factual impossibility occurs when “an actor engages in conduct
designed to culminate in the commission of an offense that is impossi-
ble for him to consummate under the existing circumstances.” 1 P.
Robinson, Criminal Law Defenses §85, p. 422 (1984). Canonical exam-
ples include an attempt to steal from an empty pocket, State v. Wilson,
30 Conn. 500, 505 (1862), or an attempt to commit false pretenses
where the victim had no money, People v. Arberry, 13 Cal. App. 749,
757 (1910).
Cite as: 578 U. S. ____ (2016) 5
THOMAS, J., dissenting
ante, at 4. Under the majority’s view, the First Amend-
ment prohibits the City from taking an adverse employ-
ment action intended to impede an employee’s rights to
speak and assemble, regardless of whether the City has
accurately perceived an employee’s political affiliation.
The majority surmises that an attempted violation of an
employee’s First Amendment rights can be just as harmful
as a successful deprivation of First Amendment rights.
Ante, at 7. And the majority concludes that the City’s
demotion of Heffernan based on his wrongfully perceived
association with a political campaign is no different
from the City’s demotion of Heffernan based on his actual
association with a political campaign. Ante, at 6.
But §1983 does not provide a cause of action for unau-
thorized government acts that do not infringe the constitu-
tional rights of the §1983 plaintiff. See Blessing v. Free-
stone, 520 U.S. 329, 340 (1997) (“In order to seek redress
through §1983, . . . a plaintiff must assert the violation of
a federal right, not merely a violation of federal law”). Of
course the First Amendment “focus[es] upon the activity of
the Government.” Ante, at 6. See Amdt. 1 (“Congress
shall make no law . . . ”). And here, the “activity of Gov-
ernment” has caused Heffernan harm, namely, a demo-
tion. But harm alone is not enough; it has to be the right
kind of harm. Section 1983 provides a remedy only if the
City has violated Heffernan’s constitutional rights, not if it
has merely caused him harm. Restated in the language of
tort law, Heffernan’s injury must result from activities
within the zone of interests that §1983 protects. Cf.
Lexmark Int’l, Inc. v. Static Control Components, Inc., 572
U. S. ___, ___, n. 5 (2014) (slip op., at 11, n. 5) (discussing
the zone-of-interests test in the context of negligence
per se).
The mere fact that the government has acted unconsti-
tutionally does not necessarily result in the violation of an
individual’s constitutional rights, even when that individ-
6 HEFFERNAN v. CITY OF PATERSON
THOMAS, J., dissenting
ual has been injured. Consider, for example, a law that
authorized police to stop motorists arbitrarily to check
their licenses and registration. That law would violate the
Fourth Amendment. See Delaware v. Prouse, 440 U.S.
648, 661 (1979). And motorists who were not stopped
might suffer an injury from the unconstitutional policy; for
example, they might face significant traffic delays. But
these motorists would not have a §1983 claim simply
because they were injured pursuant to an unconstitutional
policy. This is because they have not suffered the right
kind of injury. They must allege, instead, that their injury
amounted to a violation of their constitutional right
against unreasonable seizures—that is, by being unconsti-
tutionally detained.
Here too, Heffernan must allege more than an injury
from an unconstitutional policy. He must establish that
this policy infringed his constitutional rights to speak
freely and peaceably assemble. Even if the majority is
correct that demoting Heffernan for a politically motivated
reason was beyond the scope of the City’s power, the City
never invaded Heffernan’s right to speak or assemble.
Accordingly, he is not entitled to money damages under
§1983 for the nonviolation of his First Amendment rights.
The majority tries to distinguish the Fourth Amend-
ment by emphasizing the textual differences between that
Amendment and the First. See ante, at 6 (“Unlike, say the
Fourth Amendment . . . , the First Amendment begins by
focusing upon the activity of the Government”). But these
textual differences are immaterial. All rights enumerated
in the Bill of Rights “focu[s] upon the activity of the Gov-
ernment” by “tak[ing] certain policy choices off the table.”
District of Columbia v. Heller, 554 U.S. 570, 636 (2008);
see also Hohfeld, Some Fundamental Legal Conceptions
As Applied in Judicial Reasoning, 23 Yale L. J. 16, 30, 55–
57 (1913) (recognizing that an immunity implies a corre-
sponding lack of power). Fourth Amendment rights could
Cite as: 578 U. S. ____ (2016) 7
THOMAS, J., dissenting
be restated in terms of governmental power with no
change in substantive meaning. Thus, the mere fact that
the First Amendment begins “Congress shall make no
law” does not broaden a citizen’s ability to sue to vindicate
his freedoms of speech and assembly.
To reach the opposite conclusion, the majority relies
only on Waters v. Churchill, 511 U.S. 661 (1994) (plurality
opinion). See ante, at 5–7. But Waters does not support
the majority’s expansion of §1983 to cases where the em-
ployee did not exercise his First Amendment rights. The
issue in Waters was whether a public employer violated
the First Amendment where it reasonably believed that
the speech it proscribed was unprotected. The Court
concluded that the employer did not violate the First
Amendment because it reasonably believed the employee’s
speech was unprotected: “We have never held that it is a
violation of the Constitution for a government employer to
discharge an employee based on substantively incorrect
information.” 511 U.S., at 679. And the Court reaffirmed
that, to state a First Amendment retaliation claim, the
public employee must allege that she spoke on a matter of
public concern. See id., at 681.
Unlike the employee in Waters, Heffernan admits that
he was not engaged in constitutionally protected activity.
Accordingly, unlike in Waters, he cannot allege that his
employer interfered with conduct protected by the First
Amendment. “[W]hat is sauce for the goose” is not “sauce
for the gander,” ante, at 6, when the goose speaks and the
gander does not.
* * *
If the facts are as Heffernan has alleged, the City’s
demotion of him may be misguided or wrong. But, be-
cause Heffernan concedes that he did not exercise his First
Amendment rights, he has no cause of action under §1983.
I respectfully dissent.