And the verdict is ... yanked away!

There are many obstacles to winning a First Amendment lawsuit against a government employer. Even if you win the trial, you can still lose.

The case is Cicchetti v. Davis, 07 Civ. 10546, 2009 WL 928618 (SDNY), decided on April 6. Cicchetti was Fire Commissioner for City of Mount Vernon, appointed by defendant Davis, who was the Mayor. Davis lost his re-election campaign to Clinton Young, and when Cicchetti was seen hanging around with Young and the publisher of a newspaper who didn't like Davis, plaintiff was fired by Davis before Davis left office. Davis called Cicchetti a traitor.

Facts like this predicate a lot of First Amendment retaliation lawsuits. Cicchetti (sort of) won his trial in March 2009, as the jury found that his political association motivated his termination. But there's a catch. The Supreme Court has held that the First Amendment does not protect policymakers from retaliation based on their political associations. Branti v. Finkel, 445 U.S. 508 (1981). "Policymaker" is a term of art. The point is that elected officials have the right to pick and choose which high-ranking appointed officials they want to work with in order to fulfill their electoral mandate.

So when the jury decided that Cicchetti was fired because of his political activity, it also answered written questions from the judge about the nature of Cicchetti's position. These questions were drawn from case law governing whether an appointed official is a policymaker under the First Amendment. Lawyers who handle cases like this would recognize these questions as the Vezzetti-factors. See, Vezzetti v. Pellegrini, 22 F.3d 483 (2d Cir. 1994). Among other things, the jury found that Cicchetti would be expected to perform his job duties in response to partisan politics and that it would be important for the Mayor and Fire Commissioner to share the same political ideology.

Answers like this mean that the Mayor had the right to fire Cicchetti. So phase two of the trial, if you will, involved the Court reviewing the jury's response to the Vezzetti questions and deciding if Cicchetti was a policymaker. Based on the jury's findings, the Court finds that Cicchetti's termination was legal and not prohibited by the First Amendment. And the jury's verdict that Cicchetti was fired because of his political association is ... yanked away.