justice thomas authored dissent.
justice clarence thomas authored dissent, in justice samuel alito joined. justice thomas argued previous ruling should have been upheld because federal law not provide cause of action plaintiffs constitutional rights have not been violated . dissent focused on text of statute heffernan suing under: 42 u.s.c. § 1983. statute provides cause of action rights have been violated government. because heffernan maintained had not been exercising first amendment rights, dissent argued rights not have been violated, , section 1983 claim requires employee engage in protected activity , employer retaliate against activity.
the dissent argued that, section 1983 claim valid, harm alone not enough; has right kind of harm. thomas provided example of law allowing police pull on driver without cause. violate fourth amendment rights of stopped, people stuck in traffic injured collateral damage of unconstitutional actions not able sue because none of rights violated. similarly, not enough heffernan have shown injury violation of actual right well. dissent, if dismissal wrong reason , harm suffered, dismissal cannot infringe upon rights never exercised.
further supporting argument, dissent cited monterey v. del monte dunes @ monterey, ltd. argue section 1983 claim falls under tort law, in order draw distinction between how attempts handled under tort , criminal law. under criminal law, factually impossible attempt commit crime, such trying steal empty pocket or defraud no money, can still tried attempt. no such doctrine exists in tort law. because heffernan not engaged in protected activity, police department have attempted deprive him of right, suit must fail because there no attempted torts.
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