Curb Your Enthusiasm for Retaliation
NPR ran a piece yesterday morning about the U.S. Supreme Court case of Heffernan v. City of Patterson case, and noted that the facts sound like a “Curb Your Enthusiasm” episode. The Supreme Court heard argument on the case yesterday.
For those readers with a richer live than me, and who are not familiar with “Curb” let me give some quick background. It is the funniest comedy that has ever run on TV. It stars (I’m using the present tense because I want it to come back!) Larry David as “Larry David.” David was the co-creator of Seinfeld, and the inspiration for George Costanza. In the HBO series, Larry routinely finds himself in the wrong place, at the wrong time, doing the wrong thing. And hilarity ensues.
Here are the Heffernan facts, courtesy of the SCOTUSblog:
Jeffrey Heffernan was a twenty-year veteran police officer in Paterson, N.J., promoted to detective in 2005 and assigned to the office of the chief of police. In April 2006, Paterson was in the midst of a mayoral election. The incumbent had the support of the chief of police (Heffernan’s ultimate supervisor) and the chief’s executive officer (Heffernan’s immediate supervisor). The challenger was a former Paterson police chief and friend of Heffernan; although Heffernan spoke regularly with his friend, he did not work on the campaign and was not even eligible to vote in the election because he did not live in the city. But Heffernan’s bedridden mother did. One afternoon, while off duty, Heffernan was at the challenger’s campaign center to get his mother a new yard sign (her old one had been stolen), when a member of the mayor’s security detail who happened to be driving by spotted him holding the sign. Word quickly spread through the department. The next day, Heffernan was demoted to patrol officer and assigned to a walking patrol post, explicitly because of his support for and involvement in the challenger’s campaign. The district court and the U.S. Court of Appeals for the Third Circuit rejected Heffernan’s claim that his demotion violated the First Amendment, holding that a retaliation claim lies only when the government retaliated against an employee who actually exercised his First Amendment rights.
Let’s recap here. There seems to be no dispute that the city of Paterson demoted Heffernan because it believed, erroneously, that Heffernan was actively supporting the candidate challenging the incumbent mayor. That is, on its face, a First Amendment violation. But apparently, Paterson gets off the hook because of its mistaken impression. Of course, Heffernan really did get demoted and the decision really was motivated by a desire to punish him for exercising his First Amendment rights. I can absolutely hear Larry David bemoaning the injustice of it. But this isn’t really funny. And I hope the Supreme Court rules in Officer Heffernan’s favor.
In the Bengal Steeler playoff debacle two weeks ago, William Gay picked up a fumble and ran it in for a touchdown. Gay then did what Steelers do – celebrated like a jackass. He was flagged for excessive celebration. But as it turned out, the refs had called a penalty on the play, meaning no touchdown, and the Bengals got the ball back. Under Paterson’s view of the world, Gay’s celebration penalty should have been nullified since the touchdown he was celebrating never really happened. But in this one isolated instance, common sense prevailed in the NFL and the penalty was enforced.
And if common sense prevails at the Supreme Court, I think Heffernan should prevail. A city ought not be permitted to retaliate against protected First Amendment activity. And if a city’s actions are motivated by that intent, it should be punished. The fact that the city administration is inept to adopt a ready, fire, aim approach rally ought not get it off the hook.
But I may be wrong. And maybe when his playing days are over William Gay should run for mayor of Paterson.