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there was a likelihood that the message would be understood by
those who viewed his conduct. Because the officer repeatedly
stated that he did not have an intent to convey a message by picking
up the sign for his mother, the Third Circuit held that a jury could
not find that he intended to convey a political message, and
decided that the officer’s free speech claim was properly dismissed
by the lower court.
As to the second claim, the freedom of association claim, the Third
Circuit noted that the issue in dispute was whether the officer had
an affiliation with a political party. The court held that he did not
because the officer confirmed that he had no affiliation with the
challenger despite his passive desire to see him win the election. The
court held that a jury could not conclude that he was affiliated with
a political party just because he picked up a sign for his mother.
As a fallback argument, the officer claimed that he should be able
to proceed under a “perceived-support” theory, i.e., that political
speech and association were perceived by the city, and the city was
trying to retaliate against him based upon its erroneous perception
that he was engaging in protected speech and/or activity. The Third
Circuit disagreed, holding that it does not recognize a perceivedsupport theory. The law in the Third Circuit requires actual, not perceived, exercise of constitutional rights in order to proceed on a
claim for a violation of those rights. The court did note that other
circuit courts disagree, and actually permit parties to proceed on a
perceived support theory.
The U.S. Supreme Court granted the police officer’s request to
appeal. The Supreme Court’s decision, which may come before the
end of this year, will, hopefully, provide some guidance on these
types of retaliation claims, including the “perceived-support” argument. Officers who feel they may be subject to political retaliation
claims should consult with an attorney to discuss these issues. Stay
tuned. d
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Edmond P. Brady, CPA – Partner
ebrady@odpkf.com
Obtain reinstatement of revoked IRS
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Responsible for more than 300 PBA’s in
New Jersey and New York
Licensed in NJ, NY and Mass.
Livingston, NJ • New York, NY
Phone (973) 535-2880 • www.odpkf.com
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www.njcopsmagazine.com
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FEBRUARY 2016
11