PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 14-1610

_____________

JEFFREY J. HEFFERNAN,

Appellant

v.

CITY OF PATERSON; 

MAYOR JOSE TERRES; 

POLICE CHIEF JAMES WITTIG; 

POLICE DIRECTOR MICHAEL WALKER

_____________

On Appeal from the United States District Court

for the District of New Jersey

(D.C. Civil No. 2-06-cv-03882)

District Judge: Honorable Kevin McNulty

_____________

Submitted Under Third Circuit L.A.R. 34.1(a)

December 11, 2014

_____________

Before: VANASKIE, GREENBERG, and COWEN, Circuit 

Judges
2

(Filed: January 22, 2015)

Alexandra M. Antoniou, Esq.

Mark B. Frost, Esq.

Ryan M. Lockman, Esq.

Emily K. Murbarger, Esq.

Mark B. Frost & Associates

7 North Christopher Columbus Boulevard

Pier 5 at Penn’s Landing, 2nd Floor

Philadelphia, PA 19106

Counsel for Appellant

Victor A. Afanador, Esq.

Lite, De Palma, Greenberg

Two Gateway Center

12th Floor

Newark, NJ 07102

 Counsel for Appellees City of Paterson & Michael Walker

Susana Cruz-Hodge, Esq.

Lite, De Palma, Greenberg

Suite 1201

Two Gateway Center

12th Floor

Newark, NJ 07102

Counsel for Appellee City of Paterson

Albert C. Lisbona, Esq.

Dwyer, Connell & Lisbona

100 Passaic Avenue

Third Floor

Fairfield, NJ 07004

Counsel for Appellee Jose Torres
3

Gary Potters, Esq.

Potters & Della Peitra

100 Passaic Avenue

Fairfield, NJ 07004

Counsel for Appellee Jose Torres

Anthony V. D’Elia, Esq.

Mitzy R. Galis-Menendez, Esq.

Roosevelt Jean, Esq.

Chasan, Leyner & Lamparello

300 Harmon Meadow Boulevard

6th Floor

Secaucus, NJ 07094

Thomas P. Scrivo, Esq.

McElroy, Deutsch, Mulvaney & Carpenter

100 Mulberry Street

Three Gateway Center

Newark, NJ 07102

Counsel for Appellee James Witting

_____________

OPINION

_____________

VANASKIE, Circuit Judge. 

Appellant Jeffrey Heffernan, a police officer in 

Paterson, New Jersey, was demoted after being observed 

obtaining a local mayoral candidate’s campaign sign at the 

request of his mother. He brought this action under 42 U.S.C. 

§ 1983 against Appellees, including the City of Paterson, 

then-Mayor Jose Torres, Police Chief James Wittig, and 
4

Police Administrator Michael Walker, for unconstitutional 

retaliation under the First Amendment. Heffernan now 

appeals from the District Court’s grant of summary judgment 

in favor of Appellees. Because Heffernan has failed to come 

forward with evidence that he actually exercised his First 

Amendment rights, and because claims of retaliation based 

only on the perceived exercise of those rights are foreclosed 

by Fogarty v. Boles, 121 F.3d 886, 888 (3d Cir. 1997), we 

will affirm the District Court’s order.

I.

Heffernan joined the Paterson Police Department in 

1985, and received various commendations for his police 

work over the next 20 years. In late 2005, he was promoted 

to detective and assigned to an administrative detail in the 

office of the Chief of Police. The events giving rise to this 

case occurred in April 2006, at a time when Lawrence 

Spagnola, a former Paterson police chief and close friend of 

Heffernan’s, was pursuing a bid to unseat the then-incumbent 

mayor, Jose Torres. Heffernan, despite personally hoping 

that Spagnola would win the election, was unable to vote for 

Spagnola based on his city of residence, did not “work[] on” 

the campaign, (App. 2089), and did not consider himself 

“politically involved” with the campaign, (App. 486).

On April 13, 2006, Heffernan’s bedridden mother 

asked Heffernan to drive into downtown Paterson to pick up a 

large Spagnola campaign sign, to replace a smaller one that 

had been stolen from her lawn. That same day, Heffernan 

contacted Spagnola’s campaign manager to arrange a time 

and place when he could pick up a lawn sign. He then drove 

into Paterson, picked up the lawn sign from a distribution 

point at which Spagnola supporters and campaign staff were 
5

present, and brought the sign to his mother’s house, where he 

left it for another family member to erect.

A Paterson police officer assigned to the security staff 

of Mayor Torres—Spagnola’s opponent—observed 

Heffernan’s brief encounter with the Spagnola campaign 

manager. Word spread quickly, and the next day, one of 

Heffernan’s supervisors confronted him about his interaction 

with Spagnola’s campaign staff. Heffernan protested that he 

“wasn’t politically involved[,]” and was “just picking up a 

sign for [his] mom.” (App. 486–87.) Nonetheless, Heffernan 

was immediately demoted to a “walking post” because of his 

“overt[] involvement in a political election.” (App. 217.)

In August 2006, Heffernan filed this § 1983 action in 

the District of New Jersey, seeking compensatory and 

punitive damages based on Appellees’ alleged First 

Amendment violations. Although the precise nature of the 

claims articulated in Heffernan’s complaint was the source of 

lengthy debate before the District Court, neither party appeals 

from that Court’s most recent conclusion that the complaint 

states claims for (1) retaliatory demotion based on 

Heffernan’s exercise of the right to freedom of speech, and 

(2) retaliatory demotion based on his exercise of the right to 

freedom of association.

The parties filed cross-motions for summary judgment. 

Judge Sheridan, who was originally assigned to this matter, 

denied both motions without permitting the filing of briefs in 

opposition. For reasons that are not entirely clear, Heffernan 

proceeded to trial on only his free-association claim, which 

resulted in a jury verdict of $105,000 in his favor. After trial, 

however, Judge Sheridan retroactively recused himself based 
6

on what he concluded was a conflict of interest and vacated 

the jury’s verdict. 

The case was reassigned to Judge Cavanaugh, who

revisited the parties’ motions for summary judgment but, like 

Judge Sheridan, did not allow briefing beyond the original 

filings. He then granted summary judgment for Appellees on 

the free-expression claim, but entirely failed to address the 

free-association claim—i.e., the claim on which the jury had 

returned a verdict in Heffernan’s favor. On appeal, a panel of 

this Court concluded that the District Court had erred by 

granting summary judgment without permitting the parties to 

file briefs in opposition, and by failing to consider the 

viability of Heffernan’s free-association claim. 492 F. App’x 

225 (3d Cir. 2012).

On remand, the case was reassigned yet again, this 

time to Judge McNulty, who permitted a full round of fresh 

briefing on the parties’ cross-motions for summary judgment. 

In an opinion filed on March 5, 2014, Judge McNulty 

concluded that Heffernan had adequately pleaded and 

prosecuted his free-association claim. He nonetheless found 

that Heffernan had failed to produce evidence that he actually 

exercised his First Amendment rights, and in the alternative, 

Heffernan was foreclosed from seeking compensation under § 

1983 for retaliation based only on the perceived exercise of 

those rights. Accordingly, Judge McNulty granted summary 

judgment in favor of Appellees on all counts. Heffernan filed 

a timely notice of appeal.

II.

The District Court had jurisdiction over this case under 

28 U.S.C. §§ 1331 and 1343. We have appellate jurisdiction 
7

under 28 U.S.C. § 1291. Our review of the District Court’s 

order granting summary judgment is plenary. Trinity Indus., 

Inc. v. Chi. Bridge & Iron Co., 735 F.3d 131, 134 (3d Cir. 

2013). Summary judgment is appropriate where the movant 

establishes “that there is no genuine dispute as to any material 

fact and the movant is entitled to judgment as a matter of 

law.” Fed. R. Civ. P. 56(a). We view the evidence “‘in the 

light most favorable to the nonmoving party.’” Trinity Indus., 

Inc., 735 F.3d at 134–35 (quoting Kurns v. A.W. Chesterton 

Inc., 620 F.3d 392, 395 (3d Cir. 2010)).

III.

The First Amendment generally prohibits a public 

employer from disciplining, demoting, or firing an employee 

based on that employee’s exercise of First Amendment rights, 

including speaking out on a matter of public concern or

engaging in expressive conduct to the same effect, see 

Fogarty, 121 F.3d at 888, or associating with a particular 

political party, see Goodman v. Pa. Turnpike, 293 F.3d 655, 

663–64 (3d Cir. 2002) (citing Rutan v. Rep. Party of Ill., 497 

U.S. 62, 75 (1990)).

1

 This appeal raises three issues: (1) 

whether the District Court erred by considering Appellees’ 

motion for summary judgment on Heffernan’s freeassociation claim; (2) whether the record contains evidence 

upon which a jury could find that Heffernan actually 

 

1 The primary exceptions, not relevant here, are where

the government’s concern “with the effective and efficient 

fulfillment of its responsibilities to the public” outweighs the 

employee’s free-speech rights, Fogarty, 121 F.3d at 888, or 

where “party affiliation is an appropriate requirement for the 

position involved,” Goodman, 293 F.3d at 663.
8

exercised his free-speech or free-association rights when he 

picked up a political sign as a favor for his mother; and (3)

whether Heffernan nonetheless may obtain relief for the 

violation of a constitutional right under § 1983 even where he 

did not exercise any First Amendment right, but his employer 

mistakenly believed he did.

A.

Heffernan first argues that the District Court should 

not have considered Appellees’ motion for summary 

judgment on his free-association claim, and should instead 

have allowed that claim to proceed to trial without further 

scrutiny. In support of this unusual proposition, he notes that 

a jury already returned a verdict—albeit one vacated on 

procedural grounds—in his favor. Therefore, according to 

Heffernan, the free-association claim must have had sufficient 

factual support to permit that verdict.

Heffernan believes we acknowledged as much in our 

previous opinion in this case. There, we ordered that on 

remand, the District Court, along with deciding whether 

Heffernan had adequately “pleaded and prosecuted” his freeassociation claim, “should also consider the appropriate 

remedy, whether it be dismissal of the Free Association 

claim, reopening discovery solely on Free Association, or 

proceeding to trial.” 492 F. App’x at 230. The lack of a 

reference to summary judgment, in Heffernan’s view, bolsters 

his argument that the District Court erred by considering 

Appellees’ motion as to the free-association claim.

This is a misreading of our opinion. On the previous

appeal, it was apparent that the District Court had made two 

reversible errors. First, the Court granted summary judgment 
9

for Appellees on Heffernan’s free-speech claim without 

permitting Heffernan to file a brief in opposition; second, the 

Court’s opinion made no reference whatsoever to Heffernan’s 

still-pending free-association claim. As a result, we ordered 

the District Court “to permit the parties to re-file their 

summary judgment motions with updated statements of 

undisputed material fact and to allow opposition and reply 

briefing.” Id. at 229. The portion of the opinion on which

Heffernan relies simply directed the District Court to consider 

Appellees’ argument that Heffernan had not adequately 

pleaded or prosecuted his free-association claim—which to

that point had been overlooked in the case’s complicated 

procedural history. In sum, our disposition of that appeal had 

no bearing on Appellees’ right to contest the sufficiency of 

Heffernan’s evidence on his free-association claim through a 

motion under Rule 56 for summary judgment. 

Moreover, Appellees filed a timely motion under Rule 

56 even before the first trial in this case. They did not receive 

the benefit of a procedurally sound ruling on that motion until 

it was considered by the District Court in the opinion that is 

the subject of this appeal. We thus reject Heffernan’s 

argument that the District Court improperly considered the 

merits of Appellees’ motion for summary judgment on his 

free-association claim.

B.

We next address whether the District Court properly 

granted summary judgment on Heffernan’s free-speech and 

free-association claims insofar as they are predicated on the 

allegation that he suffered retaliation for actually engaging in 

speech or conduct protected under the First Amendment. 
10

First, with respect to his free-speech claim, Heffernan 

must establish that: “(1) [he] spoke on a matter of public 

concern; (2) [his] interest in that field outweighs the 

government’s concern with the effective and efficient 

fulfillment of its responsibilities to the public; (3) the speech 

caused the retaliation; and (4) the adverse employment 

decision would not have occurred but for the speech.” 

Fogarty, 121 F.3d at 888 (citing Green v. Phila. Housing 

Auth., 105 F.3d 882, 885 (3d Cir. 1997)). Here, the only 

element in dispute is the first—i.e., whether a jury could find 

that Heffernan actually spoke on a matter of public concern.

We note that Heffernan need not prove he communicated a 

message verbally—and indeed, the record is devoid of such 

evidence—because expressive conduct also is protected under 

the First Amendment. Such conduct exists where “an intent 

to convey a particularized message was present, and the 

likelihood was great that the message would be understood by 

those who viewed it.” Texas v. Johnson, 491 U.S. 397, 404 

(1989). “[T]his is a fact-sensitive, context-dependent inquiry, 

and . . . the putative speaker bears the burden of proving that 

his or her conduct is expressive.” Tenafly Eruv Ass’n, Inc. v. 

Borough of Tenafly, 309 F.3d 144, 161 (3d Cir. 2002) 

(citations and quotation marks omitted).

Heffernan’s best argument here is that his actions had 

the effect of assisting Spagnola’s campaign, and indeed, 

Torres’s supporters construed his conduct as an expression of 

direct personal support for the campaign. But, as recognized 

by the District Court, this is only half the picture. Heffernan

repeatedly disavowed anything resembling “an intent to 

convey a particularized message.” For instance, at

deposition, he denied “working on” Spagnola’s campaign,

(App. 2089), being “politically involved” with the campaign, 
11

(App. 486), or even “supporting [Spagnola] for mayor” at all, 

(App. 191). Instead, in his own description of the incident to 

a friend, “I was picking up a sign for my mother, and that’s 

all I was doing.” (App. 483.) In light of this unambiguous 

testimony, no room exists for a jury to find that Heffernan 

intended to convey a political message when he picked up the 

sign at issue. The District Court thus properly granted 

summary judgment on Heffernan’s claim of retaliation based 

on the actual exercise of his free-speech rights.

Nor does Heffernan fare better on his free-association 

claim, which requires proof “(1) that the employee works for 

a public agency in a position that does not require a political 

affiliation, (2) that the employee maintained an affiliation 

with a political party, and (3) that the employee’s political 

affiliation was a substantial or motivating factor in the 

adverse employment decision.” Goodman, 293 F.3d at 663–

64 (citations and quotation marks omitted). The first and 

third elements are plainly established on the record before us. 

With respect to the second element, Heffernan maintains that 

his close friendship with Spagnola, his passive desire to see 

Spagnola win the election, and the belief of Spagnola’s 

campaign manager that Heffernan was a “supporter” of the 

campaign, (App. 391), taken together, are sufficient to prove 

that he “maintained an association” with the Spagnola 

campaign.

For the same reasons described above, however, we 

conclude that Heffernan has failed to raise a genuine dispute 

of material fact on this point. Heffernan himself confirmed 

that regardless of what others may have perceived, he did not

have any affiliation with the campaign other than the cursory 

contact necessary for him to pick up the sign for his mother. 

Consequently, the record is insufficient to allow a jury to 
12

return a verdict in Heffernan’s favor on his claim of 

retaliation based on the actual exercise of his right to freedom 

of association. We will affirm the District Court’s grant of 

summary judgment with respect to Heffernan’s claim of 

retaliation based on the actual exercise of his free-association 

rights.

C.

In the alternative, Heffernan argues that he is entitled 

to proceed to trial on both claims under a “perceived-support” 

theory, i.e., where the employer’s retaliation is traceable to a 

genuine but incorrect or unfounded belief that the employee 

exercised a First Amendment right. In other words, 

Heffernan asks us to eliminate a traditional element of a First 

Amendment retaliation claim—namely, the requirement that 

the plaintiff in fact exercised a First Amendment right.

That argument is squarely foreclosed by our own 

binding precedent, which holds that a free-speech retaliation 

claim is actionable under § 1983 only where the adverse 

action at issue was prompted by an employee’s actual, rather 

than perceived, exercise of constitutional rights. See Ambrose 

v. Twp. of Robinson, 303 F.3d 488, 496 (3d Cir. 2002); 

Fogarty, 121 F.3d at 891. All of our sister circuits to consider 

this issue in the context of a free-speech claim have reached 

the same conclusion. See Wasson v. Sonoma Cnty. Junior 

Coll., 203 F.3d 659, 662 (9th Cir. 2000); Jones v. Collins, 132 

F.3d 1048, 1054 (5th Cir. 1998); Barkoo v. Melby, 901 F.2d 

613, 619 (7th Cir. 1990). Because Heffernan provides no 

convincing reason to distinguish these cases, the District 

Court correctly denied Heffernan’s alternative basis for relief

with respect to his free-speech claim.
13

Heffernan’s last contention is that Ambrose and 

Fogarty, each of which addressed free-speech claims, leave 

room for us to conclude that he may seek relief under § 1983 

on a perceived free-association claim. By way of example, 

he directs us to Dye v. Office of the Racing Comm’n, 702 F.3d 

286 (6th Cir. 2012), in which the Sixth Circuit addressed the 

employee-plaintiffs’ claim of workplace retaliation based on

their supposed affiliation with the Republican Party. There, 

the panel concluded that the employer’s mere assumption of 

an affiliation, whether founded or not, was sufficient for the 

plaintiffs’ claim to proceed. Id. at 299–300.

To begin with, we have no reason to believe that the 

holding of Dye can be reconciled with Ambrose and 

Fogarty—and nor did the Sixth Circuit. See id. at 300 (“[W]e 

find the Third Circuit’s conclusion [in Ambrose] 

unpersuasive.”). But beyond that, we are not convinced that 

Dye provides any reason to depart from our established 

holding on this point. Most notably, the Dye panel suggested 

it was “adopt[ing] the reasoning” of the First and Tenth 

Circuits in Welch v. Ciampa, 542 F.3d 927, 939 (1st Cir. 

2008), and Gann v. Cline, 519 F.3d 1090, 1094 (10th Cir. 

2008), both of which involved adverse employment actions

taken against employees who did not adopt a position on a 

local political issue. Dye, 702 F.3d at 300. Like the District 

Court, however, we read Welch and Gann as natural 

applications of the settled First Amendment principle that an 

employer may not discipline an employee based on the 

decision to remain politically neutral or silent. See Galli v. 

N.J. Meadowlands Comm’n, 490 F.3d 265, 272–73 (3d Cir. 

2007). And indeed, the emphasis on that point in Welch and 

Gann is, if anything, consistent with the admonition in 

Ambrose and Fogarty that a First Amendment retaliation 
14

claim under § 1983 must rest upon the actual exercise of a 

particular constitutional right—whether it be the right to 

speak on a political issue, to associate with a particular party, 

or to not speak or associate with respect to political matters at 

all.

Heffernan, however, has not presented evidence that 

he was retaliated against for taking a stand of calculated 

neutrality. Instead, he argues that Appellees demoted him on 

a factually incorrect basis. But it is not “a violation of the 

Constitution for a government employer to [discipline] an 

employee based upon substantively incorrect information,” 

Waters v. Churchill, 511 U.S. 661, 679 (1994), even where 

the government employer erroneously believes that the 

employee had engaged in protected activity under the First 

Amendment. To paraphrase our colleague, Judge Roth, “a 

[First Amendment] claim depends on [First Amendment 

protected conduct], and there was none in this case.” Pro v. 

Donatucci, 81 F.3d 1283, 1292 (3d Cir. 1996) (Roth, J., 

dissenting). Accordingly, we will affirm the District Court’s 

grant of summary judgment with respect to Heffernan’s 

claims insofar as they are based on a “perceived-support” 

theory of recovery.

IV.

For the foregoing reasons, we will affirm the District 

Court’s order of March 5, 2014 granting summary judgment 

in favor of Appellees.