Heffernan v. City of Paterson

• Decision Date: 05 March 2014
• Docket Number: Civ. No. 06–3882 (KM).
• Citation: 2 F.Supp.3d 563
• Court: U.S. District Court — District of New Jersey
• Parties: Jeffrey HEFFERNAN, Plaintiff, v. CITY OF PATERSON, Mayor Jose Torres, Police Chief James Wittig, and Police Director Michael Walker, Defendants.

2 F.Supp.3d 563

Jeffrey HEFFERNAN, Plaintiff,

v.CITY OF PATERSON, MayorJose Torres, Police Chief James Wittig, and Police Director Michael Walker, Defendants.

Civ. No. 06–3882 (KM).

United States District Court, D. New Jersey.

Signed March 5, 2014.

Alexandra Margaret Antoniou, Emily Kaplan Murbarger, Ryan Marc Lockman, Mark B. Frost & Associates, Philadelphia, PA, Gregg L. Zeff, Law Firm of Gregg L. Zeff, Mt. Laurel, NJ, for Plaintiff.

Albert C. Lisbona, Dwyer, Connell & Lisbona, Esqs., Fairfield, NJ, Victor A. Afanador, Lite Depalma Greenberg, LLC, Joseph M. Morris, McElroy, Deutsch, Mulvaney & Carpenter, LLP, Newark, NJ, Mitzy Galis–Menendez, Roosevelt Jean, Chasan, Leyner, & Lamparello, PC, Secaucus, NJ, Thomas P. Scrivo, McElroy, Deutsch, Mulvaney & Carpenter, LLP, Morristown, NJ, Alberto Rivas, for Defendants.

OPINION

McNULTY, District Judge:

The plaintiff, Jeffrey Heffernan, a veteran police officer in the City of Paterson, was demoted following a report that he had picked up a lawn sign from a campaign worker for a mayoral candidate.Heffernan has made a number of claims, but the one that best fits the evidence is that the Defendants, ¹ his employers, believed Heffernan had engaged in political speech or campaigning, when in fact he had not.At least one other Circuit has recognized a First Amendment claim for retaliation based on such a mistaken belief.The United States Court of Appeals for the Third Circuit, however, has rejected that “perceived support” rationale—explicitly as to free speech, and by strong implication as to freedom of association.As to this and related claims, Defendants and Plaintiff have moved for summary judgment.Following what I believe to be the law of this Circuit, I will enter summary judgment in favor of Defendants and against Heffernan.

FACTUAL BACKGROUND

The facts are stated briefly here, and developed in greater detail in the discussion of the issues.

The plaintiff, Jeffrey Heffernan, has been an officer in the Paterson Police Department since 1985.In 2005, he became a detective, assigned to the office of Police Chief James Wittig.At all relevant times, DefendantJose Torres was the Mayor of Paterson and DefendantMichael Walker was the Police Director.

On April 13, 2006, Heffernan's mother, who was ill, asked him to bring her a lawn sign supporting the candidacy of Lawrence Spagnola(the former chief of police) for mayor of Paterson.She wanted to place the sign in front of her Paterson home.Heffernan called a campaign representative he knew.That representative suggested that Heffernan contact Spagnola's campaign manager, Councilman Aslon Goow, who was distributing signs around Paterson.Later that day, while off duty, Heffernan and his son drove to a street corner in Paterson to get a large lawn sign from Goow.(Pltf's 56.1 Statement¶¶ 4, 7, 8;Dfd's Resp. Statement¶¶ 4, 7, 8;see Pltf's Trial Testimony, Lockman Cert. (ECF No. 190–5) Ex. CC at A488).At the street corner, Heffernan spoke to Goow and obtained the sign for his mother.There is a dispute as to whether there was a gathering of Spagnola supporters at the corner.(Pltf's 56.1 Statement¶ 10;Dfd's Resp. Statement¶ 10).

Officer Arsenio Sanchez, a member of defendant Mayor Torres's security detail (Sanchez Trial Testimony, Lockman Cert. Ex. BB at A 276), was on traffic patrol at the time.Sanchez saw Goow, Heffernan, and Heffernan's son at the corner.(Pltf's 56.1 Statement¶ 11(citing Sanchez testimony)).There is a record of a cell phone call from Wittig to Sanchez minutes later.Sanchez denied under oath that he spoke with Wittig that day.(Lockman Cert. Ex. BB at A284–285)Wittig, however, testified in his deposition that he spoke to Sanchez, who advised him that “Heffernan was out hanging political signs in the second ward with Councilman Goow.”(Wittig Dep. Tr., Afanandor Cert. (ECF No. 196–1) Ex. 5 at 75:18 to 76:21).Heffernan contends that Sanchez and Wittig did indeed speak about him in that call.( Id.at ¶¶ 13–14; Lockman Cert. Ex. BB at A292).

At any rate, word got back to the office.The parties agree that the next day, Lieutenant Patrick Papagni informed Heffernan that he was being transferred out of the Chiefs office.After Heffernan picked up his personal belongings, Papagni and Deputy Chief William Fraher told him that he was being demoted to walking patrol because of his political involvement with Spagnola.(Pltf's 56.1 Statement¶ 34;Dfd's Resp. Statement¶ 34).Wittig testified that Heffernan “breached his trust” as well as office policy by being “overtly involved in the political campaign.”That political involvement, said Wittig, was the cause of his demotion.(Wittig Trial Testimony, Lockman Cert. Ex. DD at A644–646).

Heffernan seemingly did deliver the sign to his mother's home in Paterson.He did not display the sign or post it on his mother's property.(Dep. Testimony of Heffernan, Ex. S to Lockman Cert. (ECF No. 197–4) at A199at 132:23–133:17).

Heffernan was a close friend of Spagnola.(Pltf's 56.1 Statement¶ 5;Dfd's Resp. Statement¶ 5).He“supported” Spagnola's candidacy in the sense that he wanted Spagnola to win, (Pltf's Testimony, Lockman Cert. Ex. CC at A486:17–23).Heffernan did not, however, live in Paterson and he was not eligible to vote there.( Id.).A campaign representative told Heffernan “it would help them out” if he met Goow at the street corner ( id. at A488:7).Heffernan also testified that he believed he was associated with people in the campaign.( Id. at A637:13–15).

PROCEDURAL HISTORY

Heffernan filed this action on August 17, 2006.The case was initially assigned to District Judge Peter G. Sheridan.Shortly before trial, the defendants moved for summary judgment on the ground that Heffernan had not engaged in any protected speech.On April 3, 2009, Judge Sheridan denied that motion without the benefit of briefing by Heffernan.(ECF No. 62).In that ruling, Judge Sheridan remarked that Heffernan's claim more closely resembled a freedom-of-association claim (Opinion on the Record, Lockman Cert. Ex. F at A135–137)Defendants, at the outset of trial, expressed some surprise that any freedom-of-association claim was in the case.Trial Transcript, Lockman Cert. Ex. BB at A270–271).Judge Sheridan then clearly ruled that the Final Pretrial Order adequately set forth freedom of association as an issue to be tried, and that it would be tried.( Id.).See alsopp. 14–17, infra.Following Judge Sheridan's ruling, the parties tried the case on the issue of whether Heffernan's freedom of association rights had been violated.

At the conclusion of that April 2009 trial, the jury entered a verdict against Mayor Torres and Chief Wittig.The jury found that Torres and Wittig had retaliated against Heffernan for exercising his first amendment right of association.It awarded $37,500 in compensatory damages against Torres, $37,000 against Wittig, and $15,000 in punitive damages against each.(ECFNo. 76–77).Judgment was entered accordingly.(ECF No. 78).Heffernan, though victorious, moved for a new trial, arguing, among other things, that the Court erred by not allowing Heffernan to go forward with his freedom-of- speech claim.(ECF No. 80).Meanwhile, the Defendants appealed the judgment, arguing, inter alia, that Judge Sheridan erred in permitting Heffernan to go forward on a freedom-of- association claim.(ECF No. 83).

While post-trial motions were pending, Judge Sheridan became aware of a conflict of interest.Judge Sheridan acknowledged that his earlier work at a law firm created an appearance of impropriety and that “[t]he only recourse is to set aside the verdict, and permit a new trial before a different judge.”(ECF No. 108).Judge Sheridan therefore entered an Order granting a new trial.(ECF No. 109–110).The case was then reassigned to District Judge Dennis M. Cavanaugh.

Judge Cavanaugh initially told the parties that he would not consider any dispositive pre-trial motions or permit the parties to re-raise issues previously decided.(ECF No. 143).The parties objected.A few weeks later, Judge Cavanaugh relented in part, and permitted the parties to re-file their earlier motions.(ECF No. 147).Torres and Wittig re-filed their earlier motions for summary judgment.(ECF No. 158, 159, 160).Judge Cavanaugh, unlike Judge Sheridan, granted the motions of Defendants Torres and Wittig for summary judgment.He held that Heffernan did not engage in any protected speech and thus had no cognizable First Amendment freedom-of-speech retaliation claim.(ECF No. 167–168).Judge Cavanaugh's opinion and order, however, did not address Heffernan's freedom-of-association claim, the one on which the jury had previously entered a verdict in Heffernan's favor.

Heffernan appealed.The Third Circuit reversed Judge Cavanaugh's judgment on August 7, 2012.(ECF No. 179).The Court of Appeals ruled that Judge Cavanaugh should have afforded Heffernan an opportunity to file papers in opposition to the renewed summary judgment motions.( Id. at 6).²The Court of Appeals also ruled that facts adduced at the April 2009 jury trial were relevant to summary judgment and should have been considered.Such evidence, “even [from a trial] involving a later recusal, [ ] is at least as reliable as other pieces of evidence, such as affidavits, that are routinely considered on summary judgment.”( Id. at 8).Finally, the Court of Appeals ruled that “the able District Judge erred by failing to address Heffernan's Free Association Claim ... before entering judgment in favor of the Defendants.”( Id. at 9).

The Court of Appeals remanded the case with instructions that the District Court(a) permit the filing of updated motions for summary judgment; (b) permit the filing of opposition and reply briefs; (c) freely consider evidence adduced at the 2009 trial in connection with those motions; and (d) determine whether the freedom of association claim is properly before the...