(Slip Opinion)
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` OCTOBER TERM, 2015
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`Syllabus
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`1
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` NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
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` being done in connection with this case, at the time the opinion is issued.
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` The syllabus constitutes no part of the opinion of the Court but has been
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` prepared by the Reporter of Decisions for the convenience of the reader.
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` See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
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`SUPREME COURT OF THE UNITED STATES
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` Syllabus
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`HEFFERNAN v. CITY OF PATERSON, NEW JERSEY,
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`
` ET AL.
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`CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
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`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
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`quickly spread throughout the force. The next day, Heffernan’s su-
`pervisors demoted him from detective to patrol officer as punishment
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`for his “overt involvement” in Spagnola’s campaign. Heffernan filed
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`suit, claiming that the police chief and the other respondents had
`demoted him because, in their mistaken view, he had engaged in
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`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
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`Third Circuit concluded that Heffernan’s claim was actionable under
`§1983 only if his employer’s action was prompted by Heffernan’s ac-
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`tual, rather than his perceived, exercise of his free-speech rights.
`Held:
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`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
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` HEFFERNAN v. CITY OF PATERSON
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`
`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
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`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.
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`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-
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`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.
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`THOMAS, J., filed a dissenting opinion, in which ALITO, J., joined.
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` Cite as: 578 U. S. ____ (2016)
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`Opinion of the Court
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`1
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` NOTICE: This opinion is subject to formal revision before publication in the
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` preliminary print of the United States Reports. Readers are requested to
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` notify the Reporter of Decisions, Supreme Court of the United States, Wash-
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` ington, D. C. 20543, of any typographical or other formal errors, in order
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` that corrections may be made before the preliminary print goes to press.
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`SUPREME COURT OF THE UNITED STATES
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`_________________
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` No. 14–1280
`_________________
`JEFFREY J. HEFFERNAN, PETITIONER v. CITY OF
`
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` 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 . . .
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`secured by the Constitution”? 42 U. S. C. §1983. We hold
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`that it did.
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`
`
`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
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` 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
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`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
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`Opinion of the Court
`under §1983 only where the adverse action at issue was
`
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` 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
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`government employer from discharging or demoting an
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`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
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`that the exceptions do not apply here. But see infra, at 8.
`We assume that the activities that Heffernan’s supervisors
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`thought he had engaged in are of a kind that they cannot
`constitutionally prohibit or punish, see Rutan v. Republi-
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` HEFFERNAN v. CITY OF PATERSON
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`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
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`“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
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`“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
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`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
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`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
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` HEFFERNAN v. CITY OF PATERSON
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`Opinion of the Court
`thought that the employee had not engaged in protected
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`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
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`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
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`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
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`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
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` HEFFERNAN v. CITY OF PATERSON
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`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.
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`
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`It is so ordered.
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`_________________
`
` 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
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`a federal lawsuit for money damages alleging a violation of
`a constitutional right that he concedes he did not exercise.
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`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,
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`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
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`sign. Despite Heffernan’s assurances that he was not
`engaged in protected First Amendment activity, he filed
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` Cite as: 578 U. S. ____ (2016)
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` THOMAS, J., dissenting
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`SUPREME COURT OF THE UNITED STATES
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` HEFFERNAN v. CITY OF PATERSON
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` 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,
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`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
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`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
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` Cite as: 578 U. S. ____ (2016)
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` THOMAS, J., dissenting
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`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
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`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.
`
`
`
`
`
`

`
`
`
` 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).
`
`
`
`
`
`4
`
`
`

`
`
`
`5
`
`
`
` Cite as: 578 U. S. ____ (2016)
`
` 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
`
`
`
`
`
`

`
`
`
`7
`
`
`
`