Heffernan v. City of Paterson (2016): A New Element in Constitutional Tort Law—It’s Not Necessarily What the Public Employer Did, but What It Intended to Do That Counts

AuthorDavid H. Rosenbloom
Published date01 September 2019
Date01 September 2019
Subject MatterArticles
/tmp/tmp-17Z3WNPzumOGr4/input 744866ROPXXX10.1177/0734371X17744866Review of Public Personnel AdministrationRosenbloom
Review of Public Personnel Administration
2019, Vol. 39(3) 449 –461
Heffernan v. City of Paterson
© The Author(s) 2017
Article reuse guidelines:
(2016): A New Element
DOI: 10.1177/0734371X17744866
in Constitutional Tort
Law—It’s Not Necessarily
What the Public Employer
Did, but What It Intended
to Do That Counts
David H. Rosenbloom1,2
Heffernan v. City of Paterson, Mayor Jose Torres, Police Chief James Wittig, and Police Director
Michael Walker
modified and expanded constitutional tort law by (a) authorizing suits
against public officials, employees, and municipalities for unconstitutionally retaliating
against personnel on the mistaken belief that they engaged in constitutionally protected
speech and (b) allowing such suits to proceed even when those personnel deny having
exercised First Amendment rights. Heffernan also affords procedural protection to
public employees disciplined for what was incorrectly considered protected speech.
The implications for public personnel administration are (a) potentially greater
difficulty for personnelists and managers to receive qualified immunity in summary
judgments, (b) potential liability for a new type of constitutional tort with uncertain
boundaries, and (c) and, unexpectedly, judicial intrusion into personnel administration
by judges’ second-guessing the reasonableness of managerial actions based on
erroneous assessments of the constitutionality of employees’ speech. Consequently,
public personnelists and managers should closely follow Heffernan’s progeny to
protect rights and avoid suits.
1Renmin University of China, Beijing, PRC
2American University, Washington, DC, USA
Corresponding Author:
David H. Rosenbloom, Chinese Thousand Talents Program Professor, School of Public Administration and
Policy, Renmin University of China, 59 Zhongguancun Street, Haidian Districty, Beijing 100872, P. R. China.
Distinguished Professor of Public Administration, School of Public Affairs, American University, 4400
Massachusetts Avenue NW, Washington, DC 20016-8070, USA.
Email: rbloom313@hotmail.com

Review of Public Personnel Administration 39(3)
constitutional torts, Heffernan v. City of Paterson, first amendment, qualified immunity,
summary judgment, public personnel administration
The U.S. federal courts began to develop constitutional tort law in the 1960s and 1970s
as a means of holding public officials and employees personally accountable for viola-
tions of the constitutional rights of those over whom they exercise job-related author-
ity (Harvard Law Review, 1977; Rosenbloom, 1988; Rosenbloom & Rene, 2016;
Ziglar v. Abbasi, 2017). Such accountability takes the form of civil suits in federal
court brought by those seeking compensatory and punitive money damages from the
officials and employees they believe are responsible for breaches of their constitu-
tional rights (Nahmod, Wells, Eaton, & Smith, 2015; Wells, 2012). The defendant
public sector officials and employees have “qualified immunity” from such suits inso-
far as they have not violated “clearly established . . . constitutional rights of which a
reasonable person would have known” (Harlow v. Fitzgerald, 1982, p. 818). Cities
potentially face constitutional tort suits for compensatory damages when their policies
directly cause violations of individual constitutional rights (Monell v. Department of
Social Services of the City of New York
, 1978; Pembaur v. City of Cincinnati, 1986).1
During the past five decades, these basic elements of constitutional tort law have been
elaborated on in several cases as briefly reviewed below (see Nahmod et al., 2015;
Rosenbloom & Rene, 2016; Wells, 2012 for a fuller discussion).
Heffernan v. City of Paterson is important for reinjecting an element of motive into
constitutional tort law regarding public employees’ freedom of speech and makes it
possible for aggrieved employees to recover damages even when there has been no
violation of the First Amendment. Since the Supreme Court’s decision in Harlow,
qualified immunity has been based on “the objective reasonableness of an official’s
conduct, as measured by reference to clearly established law” alone, without regard to
whether the defendant acted in “good faith” or with “malicious intention” (Harlow v.
, 1982, pp. 814-818). This makes it possible for qualified immunity to be
granted on summary judgment and thereby to avoid trials that are costly to public
employees and society by “distraction of officials from their governmental duties,
inhibition of discretionary action, and deterrence of able people from public service”
(Harlow v. Fitzgerald, 1982, p. 816).
Heffernan, by contrast, permits an inquiry into whether individual officials or
employees acting on their own behalf and/or as policymakers for a municipality
intended to violate a constitutional right. Specifically, by focusing on motive,
Heffernan authorizes constitutional tort suits against public officials, employees, and
cities for being motivated to retaliate against an individual who they mistakenly
believe has exercised First Amendment rights. Heffernan also makes it possible for an
employee to pursue a constitutional tort suit even though he or she denies actually hav-
ing engaged in activity protected by the First Amendment. In other words, although no
constitutional rights have actually been exercised, liability can nevertheless be attached

if there was an intent to curtail such rights by retaliating against the individual mistak-
enly believed to have exercised them. This expands the scope of both public employ-
ees’ First Amendment protection against retaliation for exercising their freedom of
speech and constitutional tort law by making public personnel potentially liable for
their unconstitutional motives in adverse actions taken against employees for their
political activity.
Public Employees’ Freedom of Speech
To appreciate fully the importance of Heffernan, it is helpful to review briefly the
broad outlines of public employees’ constitutional right to freedom of speech. In
Pickering v. Board of Education (1968, pp. 568-574), the Supreme Court held that as
a general principle, public employees have a First and Fourteenth Amendment right to
speak publicly on “matters of public concern” (i.e., public interest). However, the
employees’ interest in exercising freedom of speech must be balanced against the
“interest of the State, as an employer, in promoting the efficiency of the public services
it performs through its employees” (Pickering v. Board of Education, 1968, p. 568). In
striking this balance today, the following factors must be considered:
(1) the need for harmony in the office or work place; (2) whether the government’s
responsibilities require a close working relationship to exist between the plaintiff and
co-workers when the speech in question has caused or would cause the relationship to
deteriorate; (3) the time, manner, and place of the speech; (4) the context in which the
dispute arose; (5) the degree of public interest in the speech; and (6) whether the speech
impeded the employee’s ability to perform his or her duties. (Belk v. City of Eldon, 2000,
pp. 880-881; see also Rankin v. McPherson, 1987)
Two common types of speech by public employees on matters of public concern are
excluded from constitutional protection and, therefore, Pickering balancing. First,
political neutrality regulations can constitutionally prohibit public employees from
taking an active part in political party management and partisan political campaigns
(United Public Workers v. Mitchell, 1947; U.S. Civil Service Commission v. National
Association of Letter Carriers
, 1973). In Heffernan, the Supreme Court did not address
the question of whether Heffernan may have violated such regulations applicable in
the City of Paterson.
Second, in Garcetti v. Ceballos (2006, p. 421), the Supreme Court held that “work
product” speech by public employees, regardless whether it is on matters of public
concern, may subject them to adverse personnel actions. In the Court’s words, “when
public employees make statements pursuant to their official duties, the employees are
not speaking as citizens for First Amendment purposes, and the Constitution does not
insulate their communications from employer discipline” (Garcetti v. Ceballos, 2006,
p. 421; see also Roberts, 2007).2
These general principles do not resolve a matter of particular pertinence to
Heffernan: What steps must the public employer take to determine what the employee
said or otherwise expressed? In Waters v. Churchill (1994), the Supreme Court

Review of Public Personnel Administration 39(3)
plurality opinion reasoned that “If an employment action is based on what an employee
supposedly said, and a reasonable supervisor would recognize that there is a substan-
tial likelihood that what was actually said was [constitutionally] protected, the man-
ager must tread with a certain amount of care. . . . It should . . . be the care that a
reasonable manager would...

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