CLEARY GIACOBBE ALFIERI JACOBS, LLC prevails in both the district court and Third Circuit as to claims for First Amendment retaliation, Equal Protection and conspiracy based upon the non-promotion of three public employees to Chief of Police

On April 14, 2025, the Firm successfully obtained a dismissal of Plaintiffs’ Amended Complaint alleging violations of Plaintiffs’ First and Fourteenth Amendment rights and a federal conspiracy claim premised on the fact that Plaintiffs were not selected or confirmed for promotion to Chief of Police.

In evaluating the Motion to Dismiss, the District Court accepted all arguments made with respect to Plaintiffs’ First Amendment retaliation claim, including the argument that Plaintiffs’ alleged speech was not protected under the First Amendment, as each allegation was limited to speech made pursuant to Plaintiffs’ official duties or employment. The District Court found that the facts pleaded in the Amended Complaint demonstrated that Plaintiffs were speaking as employees on matters of personal interest, including a “private intra-office grievance,” and opposing Mayor Wysocki’s candidacy for Mayor, which are not protected under the First Amendment. Thus, the District Court concluded that because Plaintiffs’ Amended Complaint failed to establish that Plaintiffs engaged in a protected activity, Plaintiffs’ First Amendment claims fail as a matter of law, thereby dismissing Count One of the Complaint.

Regarding Plaintiffs’ Fourteenth Amendment claims, the District Court accepted all arguments made, including the argument that the Complaint fails to assert any damage to Plaintiffs’ reputation for being stigmatized as “Batelli’s boys.” The District Court found that “[a]ny public or false statement that would qualify as a stigma on [Plaintiffs’] reputation is absent from the Amended Complaint.” Because Plaintiffs did not identify any public or false statements made by Defendants to defame them, their claim fails under the “stigma-plus” test used to evaluate due process claims concerning reputation.

Additionally, the District Court found that Plaintiffs were unable to identify a deprivation of a right or liberty interest sufficient to state a claim under the Substantive Due Process Clause. The District Court noted in a footnote that nothing about the interview process for Chief of Police offended any rule or precedent of which the Court is aware and did not, as alleged, constitute a “sham interview process.” Thus, Count Two of the Complaint was dismissed.

Finally, the District Court accepted all arguments made regarding Plaintiffs’ federal Section 1985 conspiracy claims, including the argument that the Amended Complaint contains no facts showing any concerted action by Defendants to deprive Plaintiffs of a constitutional or federal right. Specifically, the Court found that Mayor Wysocki was entitled under state statute and local ordinance to select the candidate for Chief of Police, with the advice and consent of the Council. Moreover, Plaintiffs were unable to establish a cognizable right or interest that Defendants violated or denied, which is required to sustain a conspiracy claim. Nor did Plaintiffs establish that they are part of a “specific identifiable class against whom the defendants can have discriminated.”

On March 11, 2026, the United States Court of Appeals for the Third Circuit affirmed the District Court’s dismissal by rejecting Plaintiffs’ claims that the promotion of another officer to Chief of Police violated their United States and New Jersey State constitutional rights to free speech or free association.

In the decision authored by Third Circuit Judge Montgomery-Reeves, the Court opined that, as pleaded in the Amended Complaint, neither Plaintiffs’ alleged association with former Chief of Police Batelli nor their speech about Mayor Wysocki’s political candidacy and aspirations were protected by the First Amendment; nor could it be concluded that it was a substantial factor in their non-promotion to Chief. In other words, because there were no facts demonstrating that Defendants personally believed Plaintiffs were associating with former Chief Batelli for protected purposes, Plaintiffs failed to demonstrate an expressive association protected under the First Amendment. The Third Circuit also found that the Amended Complaint offered no reason to infer that Plaintiffs’ speech about Mayor Wysocki was a substantial factor in the promotion decision, particularly where no facts demonstrated that any decision-maker was aware of Plaintiffs’ speech critical of Mayor Wysocki’s candidacy for public office.

As to Plaintiffs’ Fourteenth Amendment due process claim, the Third Circuit opined that reputation alone is not an interest protected by the Due Process Clause. While Plaintiffs alleged that being labeled as “Batelli’s boys” by the Mayor and subjected to a “sham interview process” violated their due process rights, as public employees, they failed to allege sufficient facts to support those claims. The allegation that Plaintiffs had been labeled as “Batelli’s boys” did not, in the Third Circuit’s opinion, demonstrate that they were deprived of some right or interest in addition to the alleged reputational harm. Nor did Plaintiffs allege sufficient facts to demonstrate that they were entitled to the promotional process they sought. Therefore, the Third Circuit agreed with the District Court that Plaintiffs failed to plead a substantive due process claim under the Fourteenth Amendment.

Finally, the Third Circuit addressed Plaintiffs’ claim that Chief O’Hara’s promotion was the product of a “conspiracy” to deprive them of their constitutional rights pursuant to 42 U.S.C. § 1985. This section, derived from the Ku Klux Klan Act of 1871, requires an allegation that the conspiracy be motivated by racial or class-based discriminatory animus. The class must be readily determinable by objective criteria, and the alleged discrimination against such a class must be so invidious that a Section 1985 conspiracy theory of liability could apply. Plaintiffs failed to plead that “Batelli’s boys” qualifies as a class under either requirement, which was fatal to their Section 1985 conspiracy claim against the entire Council that voted to affirm the Mayor’s selection for Chief of Police.

The case was handled by Ruby Kumar-Thompson, Esq., Partner.