Small-town constitutional retaliation claim is reinstated

Small-town politics once again makes it way to the U.S. Court of Appeals, which decides that a jury may find that a town in Dutchess County retaliated against a police captain for supporting the incumbent Town Supervisor (who lost her re-election campaign) and was then demoted by the Town Board.

The case is Bierce v. Town of Fishkill, a summary order issued on July 13. Bierce supported Pagones, who sought re-election. Pagones lost. LaColla won. Afterwards, plaintiff was demoted. The case was dismissed, but the Court of Appeals (Jacobs, Chin and Droney) brings it back in an unpublished decision that could easily have been a precedential ruling. I say that because this decision is a mini-tutorial on what it takes to win a political retaliation case under the First Amendment.

Plaintiff had the First Amendment right to support Pagones in her re-election campaign. The town did not have the right to retaliate for plaintiff's political activity. The town argued that the town board voted to demote plaintiff, and that he did not prove that a majority of the board took action against him in retaliation for his political activity. There is logic to this argument. But the Court of Appeals previously held in another case that "plaintiff 'may prevail—and, at the very least, should survive summary judgment—even when the plaintiff has not presented evidence that a majority of the individual members of [a] body acted with unconstitutional motives.'” The defendant has the burden of showing a majority did not intend to retaliate against the plaintiff.

Plaintiff can win the case because the board voted to demote him only one month after LaColla took office. That short time-gap permits the inference of retaliation. Also, the board did not follow its usual procedures in eliminating plaintiff's position, more evidence of illicit motive, since violating procedural rules to hurt the plaintiff suggests the defendants were bending the rules for an ulterior motive. What's more, two other Pagones supporters also lost their jobs after the election. There is also some direct evidence. "After finding out that Bierce supported Pagones politically, LaColla warned him that 'police and politics don’t mix.'”