UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
Joseph
Inturri, et al.,
Plaintiffs-Appellants,
-v.-
City
of Hartford et al,
Defendants-Appellees.
No.
05-2114
165
Fed. Appx. 66
2006
U.S. App. Lexis 2538
January
31, 2006, Decided
Hon. Sonia Sotomayor, Hon.
Richard C. Wesley, Circuit Judges, Hon. Lewis A. Kaplan, District Judge. *
* The Honorable Lewis
A. Kaplan, United States District Judge for the Southern District of New York,
sitting by designation.
[*68]
UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, AND
DECREED that the judgment of the United States District Court for the District
of Connecticut (Droney, J.) is AFFIRMED.
Plaintiffs-appellants Joseph Inturri, Darren Besse, Mark
Castagna, Stephen J. Miele and Matthew Rooney (“plaintiffs”) appeal from a
March 30, 2005 judgment of the district court dismissing all claims against the
City of Hartford and its former Chief of Police, Bruce P. Marquis
(collectively, the “City” or “defendants”). See Inturri v. City of Hartford,
365 F. Supp. 2d 240 (D. Conn. 2005). We assume the parties’ familiarity with
the facts of the case, the relevant procedural background, and the issues on
appeal.
The plaintiffs raised various constitutional challenges under 42
U.S.C. § 1983 to Hartford Police Department General Order 6-15, which gives the
police chief “the authority to order personnel to cover tattoos that are deemed
as offensive and/or presenting an unprofessional appearance.” They also
challenged the chief’s April 14, 2003 memorandum ordering them to cover the
spider-web tattoos on their elbows while on duty, which followed the chief’s
discovery that those tattoos were known to some people as a symbol of racist
violence. We review the district court’s grant of summary judgment de novo,
construing the evidence in the light most favorable to the non-moving party.
Feifer v. Prudential Ins. Co. of Am., 306 F.3d 1202, 1208 (2d Cir. 2002).
I. First Amendment
Overbreadth
Plaintiffs claim that the General Order violates [*69] the First
Amendment because it is unconstitutionally overbroad. We allow a party to bring
an overbreadth challenge where it “satisfies the [Article III] requirement of
‘injury-in-fact, ‘ and [where] it can
be expected satisfactorily to frame the issues in the case.” Sec’y of Md. v.
Joseph H. Munson Co., 467 U.S. 947, 958, 104 S. Ct. 2839, 81 L. Ed. 2d 786
(1984). Plaintiffs have waived any
claim that the General Order as applied violated their First Amendment
rights by asserting that their tattoos are not expressive. This calls into
question whether it would be appropriate for this Court to entertain their
overbreadth challenge, because it is not altogether clear that they meet the
threshold requirements for an overbreadth challenge as articulated in Munson.
We need not resolve this question here, however, because it is clear that
plaintiffs’ overbreadth challenge is without merit.
General
Order 6-15 affects only tattoos displayed by on-duty police officers, and the
First Amendment rights of public employees are significantly more limited than
those of the general public. “[A] governmental employer may subject its
employees to such special restrictions on free expression as are reasonably
necessary to promote effective government.” Brown v. Glines, 444 U.S. 348, 356
n.13, 100 S. Ct. 594, 62 L. Ed. 2d 540 (1980). A police department has a
reasonable interest in not offending, or appearing unprofessional before, the
public it serves. See Kelley v. Johnson, 425 U.S. 238, 247, 96 S. Ct. 1440, 47
L. Ed. 2d 708 (1976). Therefore, few if any of the tattoos covered by General
Order 6-15 would actually be protected by the First Amendment. There is thus no
“realistic danger that the statute itself will significantly compromise
recognized First Amendment protections of parties not before the Court,” City
Council v. Taxpayers for Vincent, 466 U.S. 789, 801, 104 S. Ct. 2118, 80 L. Ed.
2d 772 (1984), and the plaintiffs’ overbreadth challenge accordingly fails.
II. Vagueness
Plaintiffs also claim that the General Order is so vague as to
violate their right to due process. Laws with merely civil consequences receive
less exacting vagueness scrutiny than criminal laws, see Hoffman Estates v.
Flipside, Hoffman Estates, 455 U.S. 489, 498, 102 S. Ct. 1186, 71 L. Ed. 2d 362
(1982), and in the public employment context we have held that a specific
notice by an employer as to what behavior falls within the scope of a
regulation can provide adequate notice. See Janusaitis v. Middlebury Volunteer
Fire Dep’t, 607 F.2d 17, 27 (2d Cir. 1979). Here, the plaintiffs received a
memorandum specifically telling them their tattoos must be covered. They
therefore received ample notice of the regulation’s applicability to their
case. Furthermore, given the public employment context, the order conferred no
improper discretion on the police chief. See City of Chi. v. Morales, 527 U.S.
41, 56-57, 119 S. Ct. 1849, 144 L. Ed. 2d 67 (1999) (plurality opinion of
Stevens, J.).
Plaintiffs also seek to challenge the General Order on its face.
A facial vagueness challenge is permissible where a law “affects communication
protected by the First Amendment,” and the regulation’s deterrent effect on
“legitimate expression” is real and substantial. Young v. Am. Mini Theatres,
Inc., 427 U.S. 50, 60, 96 S. Ct. 2440, 49 L. Ed. 2d 310 (1976). Here, as noted
above, the General Order implicates expressive conduct, but does not affect any
significant amount of conduct that would actually be protected by the First
Amendment. Thus, no facial vagueness challenge is permissible.
III. Equal Protection
Plaintiffs
claim that the chief’s memorandum ordering them to cover their tattoos violated
their right to equal protection. Plaintiffs argue that we should apply
heightened scrutiny to their case because the order affected their fundamental
liberty interest in their personal appearance. See Ramos v. Town of Vernon, 353 F.3d 171, 180 (2d Cir.
2003) (discussing intermediate scrutiny). In Zalewska v. County of Sullivan,
316 F.3d 314 (2d Cir. 2003), we held that in the context of public employment
there is no fundamental liberty interest in personal appearance. Id. at 321. We thus apply rational basis
scrutiny, and have no difficulty in determining that it was rational for the
police chief to require police officers to cover a tattoo which could
reasonably have been perceived as a racist symbol.
Plaintiffs also argue that the chief’s memorandum constitutes a
selective prosecution and thus violates their right to equal protection. But
plaintiffs have not shown that they were treated differently from similarly
situated officers, because no [*70] other officers were shown to have tattoos
that could be interpreted as racist. Even if the plaintiffs were treated
differently, it was not to inhibit their exercise of First Amendment rights,
because as noted above, the plaintiffs had no First Amendment right to display their tattoos. Their
selective prosecution claim therefore fails. See Cobb v. Pozzi, 363 F.3d 89,
110 (2d Cir. 2003) (noting that selective prosecution occurs where plaintiff shows
differential treatment based on an impermissible consideration such as intent
to inhibit or punish the exercise of constitutional rights).
IV. Conclusion
For the foregoing reasons, the judgment of the district court is
hereby AFFIRMED.
* The Honorable Lewis A.
Kaplan, United States District Judge for the Southern District of New York,
sitting by designation.
UNITED
STATES DISTRICT COURT
FOR
THE DISTRICT OF CONNECTICUT
Joseph
Inturri, et al.,
Plaintiffs,
v.
City
of Hartford, Connecticut
and
Bruce P. Marquis,
Defendants.
Civil
Action No. 3:03 CV 987 (CFD)
365
F.Supp.2d 240
2005
U.S. Dist. Lexis 5087
March
30, 2005, Decided
Affirmed by Inturri v. City
of Hartford, 2006 U.S. App. Lexis 2538 (2d Cir., Jan. 31, 2006).
Christopher F. Droney
United States District
Judge.
[*243]
The
plaintiffs, five police officers for the City of Hartford, brought this action
against the City and Bruce P. Marquis, the Chief of the Hartford police
department, n1 challenging the portion of the department’s uniform and
appearance regulations which provides that “the Chief of Police has the
authority to order personnel to cover tattoos that are deemed offensive and/or
presenting an unprofessional appearance,” as well as Chief Marquis’ order
requiring the plaintiffs to cover certain tattoos. The parties have
moved for summary judgment as to all counts of the complaint. For the following
reasons, the plaintiffs’ motion for summary judgment [Doc. # 19] is DENIED and
the defendants’ motion for summary judgment [Doc. # 18] is GRANTED.
I - Facts
The parties have stipulated to the following facts: The
plaintiffs, Joseph Inturri, Stephen Miele, Matthew Rooney, Darren Besse and
Mark Castagna, are police officers for the City of Hartford, and have tattoos
on their arms depicting a spider web.
Since at least 1985, the police department’s General Order 6-15 has provided
the standards and requirements for the uniforms and appearance of all officers.
In 1997, General Order 6-15 was revised to specifically address tattoos,
providing in Section III.C.5 that: “Tattoos that are visible to the public and
deemed offensive, immoral, or presenting an unprofessional appearance, as
deemed by a supervisor, shall require the officer to cover said tattoo with a
bandaging type material or a long sleeve shirt in accordance with the Uniform
of the Day Standards.” In 1999, Section III.C.5 was revised once again, providing: “Tattoos that are
visible to the public and deemed offensive, immoral, or presenting an
unprofessional appearance, as deemed by the Chief of Police, shall require the
officer to cover said tattoo with a bandaging type material or a long sleeve shirt
in accordance with the Uniform of the Day Standards.”
On October 17, 2002, Detective Keith Knight, another officer in
the department, wrote a letter to Michael Wood, president of the Hartford
Police Union, raising several concerns. Knight provided copies of his letter to
City of Hartford officials, including [*244] Chief Marquis, and the mayor,
deputy mayor, city manager and council members. One concern raised by Knight in
his letter was tattoos of certain officers in the department. Specifically, Knight’s
letter stated:
Lets debate the issue of a
white supervisor along with two other white police officers wearing a racist
tattoo of a white supremacy group called the Arian Nation [sic]. The tattoo which is a spider web
tattoo, which I am informed by the Department of Corrections who monitors such
groups that the tattoo symbolizes race hatred of non-whites and Jews. I
know the U.S. Constitution gives everybody the right to free speech and
expression, but this is unacceptable for a police officer to wear in plain view
knowing that it offends and what it stands for. Where is the enthusiastic
debate on this issue? n2
After receiving a copy of
Knight’s letter, the Hartford city manager informed Chief Marquis that the
issue of the spider web tattoos was a concern to the mayor and at least some of
the members of the city council, and asked him to resolve the situation. Chief
Marquis then consulted with the Office of the Corporation Council (“OCC”) for
the City of Hartford, as well as a contact at the Federal Bureau of
Investigation’s Legal Investigation Unit. The command staff of the department
n3 then discussed the matter and decided that, pursuant to General Order 6-15,
spider web tattoos should be covered while the officers were on duty or in
uniform. In reaching this conclusion, the command staff and Chief Marquis
stated that they considered the following: an internet web-site maintained by
the Anti-Defamation League; the racial composition of the City of Hartford
(which is almost seventy percent non-Caucasian); a history of troubled race
relations between the population of Hartford and members of the police
department; the racial composition of the police department; a consent decree
involving the department in Cintron v. Vaughan n4; Article XII of the
department’s Code of Conduct, which addresses discriminatory acts by police
officers; and Chief Marquis’ information from the FBI. In particular, the ADL
website had a page entitled “Hate on Display: A Visual Database of Extremist
Symbols, Logos and Tattoos,” which included the spider web [*245] design in a
display of such tattoos. A separate page providing details about the spider web
tattoo described it as being favored by “racist convicts” and, in the
“Background/History” section, stated the following:
The spider web tattoo is often found on the arm, or under the
arm, of racists who have spent time in jail. In some places, one apparently
“earns” this tattoo by killing a minority. However, non-extremists may sometimes
sport this tattoo as well, unaware of its other symbology, simply because they
like the design.
The stipulation of facts here also indicates that, in reaching
their conclusion that spider web tattoos should be covered, a “major concern
[of the command staff of the department] was that in a predominantly minority
community, responding police officers who sport tattoos that have been
associated with white supremacist groups may result in an explosive situation,
endangering both the officers and the community.”
On April 14, 2003, Chief Marquis revised Section III.C.5 of
General Order 6-15 as follows: “The Chief of Police has the authority to order
personnel to cover tattoos that are deemed offensive and/or presenting an
unprofessional appearance. Personnel shall cover the tattoo with either a flesh
tone, navy blue or white type material that matches the uniform shirt or wear a
long sleeve shirt in accordance with the Winter Uniform of the Day Standard.”
On that same day, Chief Marquis, “acting as a final policy maker and pursuant to
official policy,” issued a memorandum to all officers which stated: “It has
been determined that a visible spider web tattoo is offensive, and therefore as
Chief of Police and in consultation with Corporation Counsel, I am ordering
everyone to cover this tattoo, in accordance with [General] Order 6-15, while
you are in an on-duty capacity or wearing the Hartford Police Uniform.” The plaintiffs have complied
with the order by covering their tattoos with either sweatband-type material or
by wearing long sleeve shirts. Accordingly, they have not been disciplined or
lost any pay as a result of the issuance of the April 14, 2003 memorandum. n5
Other officers in the department, including one or more of the plaintiffs, also
have arm tattoos other than the spider web design. They have not been directed
to cover these other tattoos.
Finally, the defendants state that they have no evidence that
the plaintiff police officers have this particular tattoo as “symbols of any
racist or anti-Semitic philosophy or statement,” and the plaintiffs have made
clear that they do not intend the tattoos to have any symbolic effect; they
state they were unaware that the spider web tattoo had any such connotation. n6
[*246]
II - Procedural History
The plaintiffs have filed a two-count complaint in this Court.
Count one alleges that the defendants violated 42 U.S.C. §§ 1983 by denying
them their right to free expression under the First and Fourteenth Amendments
of the United States Constitution and by singling them out for different
treatment in violation of the Equal Protection Clause of the Fourteenth
Amendment. Count two alleges that Section III.C.5 of General Order 6-15 is
unconstitutionally vague and overbroad. The defendants have denied the
allegations in the complaint and set forth several special defenses. As
mentioned, the parties have moved for summary judgment, and this opinion
considers both motions.
III - Summary Judgment
Standard
A motion for summary judgment may be granted “if the pleadings,
depositions, answers to interrogatories, and admissions on file, together with
affidavits ... show that there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P.
56(c). A party seeking summary judgment “bears the burden of establishing that
no genuine issue of material fact exists and that the undisputed facts
establish [its] right to judgment as a matter of law.” Rodriguez v. City of New
York, 72 F.3d 1051, 1060-1061 (2d Cir. 1995) (citing Adickes v. S.H. Kress
& Co., 398 U.S. 144, 157, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970)). A
dispute regarding a material fact is genuine “if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505
(1986). When addressing a motion for summary judgment, a court must resolve
“all ambiguities and draw all inferences in favor of the nonmoving party in
order to determine how a reasonable jury would decide.” Aldrich v. Randolph
Cent. Sch. Dist., 963 F.2d 520, 523 (2d Cir. 1992). “Only when reasonable minds
could not differ as to the import of the evidence is summary judgment proper.”
Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991). Therefore, summary
judgment is appropriate if, after discovery, the nonmoving party “has failed to
make a sufficient showing on an essential element of [its] case with respect to
which [it] has the burden of proof.” Celotex Corp. v. Catrett, 477 U.S. 317,
323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986).
“When faced with cross-motions for summary judgment, a district
court is not required to grant judgment as a matter of law for one side or the
other. . . . ‘Rather, the court must evaluate each party’s motion on its own
merits, taking care in each instance to
draw all reasonable inferences against the party whose motion is under
consideration.’“ Heublein, Inc. v. United States, 996 F.2d 1455, 1461 (2d Cir.
1993) (quoting Schwabenbauer v. Board of Educ. of Olean, 667 F.2d 305 (2d Cir.
1981)); see also 11 Moore’s Federal Practice 3d § 56.10[6] (Matthew Bender Ed.)
(citing cases).
IV - Count One
As noted previously, count one alleges that the defendants
violated the plaintiffs’ rights to freedom of expression and equal protection
under the law, in violation of 42 U.S.C. § 1983.
A) Freedom of Expression
As mentioned, the plaintiffs asserted claims in the complaint
under the First [*247] and the Fourteenth Amendments of the U.S. Constitution
based on their right to freedom of
expression. However, in their summary judgment papers and at argument on the
motions, they withdrew these claims, maintaining that their spider web tattoos
are not “expressive conduct.” See Zalewska v. County of Sullivan, 316 F.3d 314,
321 (2d Cir. 2003). In other words, not only do the plaintiffs state that the
tattoos do not express the racist meaning expressed in the ADL website, they
are not intended to express any meaning whatsoever; they merely are decorative,
like many tattoos.
Accordingly,
the defendants are entitled to summary judgment on plaintiffs’ claim that they
were denied their rights to freedom of expression under the First and
Fourteenth Amendments, in violation of § 1983.
B) Equal Protection
The Fourteenth Amendment to the United States Constitution
provides that “no state shall ... deny to any person within its jurisdiction
the equal protection of the laws,” and is “essentially a direction that all persons
similarly situated should be treated alike.” City of Cleburne, Texas v.
Cleburne Living Center, 473 U.S. 432, 439, 87 L. Ed. 2d 313, 105 S. Ct. 3249
(1985). More specifically, “the purpose of the equal protection clause of the
Fourteenth Amendment is to secure every person within the State’s jurisdiction
against intentional and arbitrary discrimination, whether occasioned by express
terms of a statute or by its improper execution through duly constituted
agents.” Village of Willowbrook v. Olech, 528 U.S. 562, 564, 145 L. Ed. 2d 1060,
120 S. Ct. 1073 (2000); see also Sioux City Bridge Co. v. Dakota County, 260
U.S. 441, 445, 67 L. Ed. 340, 43 S. Ct. 190 (1923); Sunday Lake Iron Co. v.
Township of Wakefield, 247 U.S. 350, 352, 62 L. Ed. 1154, 38 S. Ct. 495 (1918).
As recently noted in this district, “[a] plaintiff claiming denial of equal
protection rights can proceed according to several theories. The United States
Supreme Court has recently held that a plaintiff need not be a member of a
traditionally ‘protected class’ in order to allege an equal protection
violation.” Tuskowski v. Griffin, 359 F. Supp. 2d 225, 2005 U.S. Dist. Lexis
3837, 2005 WL 599312 (D.Conn. 2005); see also Harvey v. Mark, 352 F. Supp. 2d
285, 290 (D.Conn. 2005) (same). Rather, a plaintiff may maintain a “class of
one” equal protection claim, as long as the plaintiff alleges that he or she
was treated differently than similarly situated persons, and there was no
rational basis for that differential treatment. Id. (citing Village of
Willowbrook v. Olech, 528 U.S. at 564). In addition, a plaintiff also may
assert a “selective prosecution” equal protection claim. See Cobb v. Pozzi, 363
F.3d 89, 110 (2d Cir. 2004) (setting
forth the standard for a selective prosecution claim). In the complaint, the
plaintiffs allege that Chief Marquis’ April 14, 2003 memorandum ordering them
to cover their spider web tattoos “results in the plaintiffs being treated
differently than similarly situated police officers with visible tattoos.” The
complaint also alleges that the defendants violated their rights under the
Fourteenth Amendment “by arbitrarily and capriciously singling out the
plaintiffs for differential treatment . . . .” These allegations appear to
raise both an Olech “class of one” claim and a “selective prosecution” claim.
In their memoranda, however, the plaintiffs have briefed all three of the
different equal protection theories noted previously. Consequently, because the
Court is unable to ascertain which theories the plaintiffs are proceeding
under, all three will be addressed.
[*248]
1) “Protected Class”
Traditionally, the Equal Protection clause of the Fourteenth
Amendment protects against class-based discrimination. See, e.g., Plyler v.
Doe, 457 U.S. 202, 213, 72 L. Ed. 2d 786, 102 S. Ct. 2382 (1982) (“The Equal
Protection Clause was intended to work nothing less than the abolition of all
caste-based and invidious class-based legislation.”); United States v.
Batchelder, 442 U.S. 114, 125 n.9, 60 L. Ed. 2d 755, 99 S. Ct. 2198 (1979)
(“The Equal Protection Clause prohibits selective enforcement based upon an
unjustifiable standard such as race, religion, or other arbitrary
classification”) (quotation marks omitted). As the United States Supreme Court
has explained:
We apply different
levels of scrutiny to different types of classifications. At a minimum, a
statutory classification must be rationally related to a legitimate
governmental purpose. . . . Classifications based on race or national origin .
. . and classifications affecting fundamental rights . . . are given the most
exacting scrutiny. Between these extremes of rational basis review and strict
scrutiny lies a level of intermediate scrutiny, which generally has been
applied to discriminatory classifications based on sex or illegitimacy. . . .
Clark v. Jeter, 486 U.S.
456, 461, 100 L. Ed. 2d 465, 108 S. Ct. 1910 (1988). More recently, the Second
Circuit noted that rational basis review generally applies, and that the higher
forms of review-strict scrutiny and intermediate scrutiny-apply in the “limited
circumstances” where “the subject of the different treatment is a member of a
class that historically has been the object of discrimination.” Able v. U.S.,
155 F.3d 628, 631-32 (2d Cir. 1998). Here, the plaintiffs argue that the Court
should apply intermediate scrutiny to their equal protection claim, while the
defendants maintain that the Court should apply the rational basis standard of
review.
Under intermediate scrutiny, the government must show that the
challenged legislative enactment or action by an official is substantially
related to an important governmental interest. Wengler v. Druggists Mut. Ins.
Co., 446 U.S. 142, 150, 64 L. Ed. 2d 107, 100 S. Ct. 1540 (1980); see also
United States v. Virginia, 518 U.S. 515, 532-33, 135 L. Ed. 2d 735, 116 S. Ct.
2264 (1996) (under intermediate scrutiny, the government must articulate an
“exceedingly persuasive” justification for using the otherwise discouraged
classification). As the Second Circuit has explained, in order to trigger
intermediate scrutiny, a challenged law
must employ some sort of ‘quasi-suspect classification.’“ U.S. v. Coleman, 166
F.3d 428, 431 (2d Cir. 1999). Classifications that have been recognized as
“quasi-suspect” are gender and illegitimacy. Ramos v. Town of Vernon, 353 F.3d
171, 175 (2d Cir. 2003); see, e.g., Mills v. Habluetzel, 456 U.S. 91, 98-99, 71
L. Ed. 2d 770, 102 S. Ct. 1549 (1982) (applying intermediate scrutiny to an
equal protection challenge involving illegitimate children); Craig v. Boren,
429 U.S. 190, 197, 50 L. Ed. 2d 397, 97 S. Ct. 451 (1976) (applying
intermediate scrutiny to equal protection challenge involving gender); see also
Able v. U.S., 155 F.3d 628, 632 (2d Cir. 1998) (noting that heightened scrutiny
in equal protection cases has been limited to groups generally defined by their
status, such as gender and illegitimacy, and not by the conduct in which they
engage). The plaintiffs concede that they are not members of a quasi-suspect
class. The plaintiffs claim, however,
that “on occasion intermediate scrutiny has [also] been applied to review a law
that affects ‘an important, though not constitutional, right.’“ Ramos, 353 F.3d
at 175 (citing Coleman, 166 F.3d at 431 ). Here, the plaintiffs further claim
that Chief Marquis’ order affects such a right [*249] and, therefore,
intermediate scrutiny is applicable.
As noted previously, the plaintiffs concede that their spider
web tattoos are not conveying any speech or message, but merely are related to
personal appearance. The plaintiffs contend that their right to personal
appearance is an “important, but not constitutional right.” However, having a
visible tattoo devoid of any intended meaning while on-duty as a police officer
cannot be said to be the exercise of an “important, but not constitutional,
right,” as courts consistently have upheld the ability of public employers to
regulate the appearance of their employees. See e.g., Kelley, Commissioner
Suffolk County Police Dep’t v. Johnson, 425 U.S. 238, 245, 47 L. Ed. 2d 708, 96
S. Ct. 1440 (1976) (“we have sustained comprehensive and substantial
restrictions upon activities of both federal and state employees lying at the
core of the First Amendment); Lowman v. Davies, 704 F.2d 1044, 1046 (8th Cir.
1983) (Lay, C.J., dissenting) (“It is well established that the state may
regulate the personal appearance of its employees if the state has rational,
nonarbitrary reasons for doing so”); see alsoBlau v. Fort Thomas Pub. Sch.
Dist., No. 03-6337, 401 F.3d 381, 2005 U.S. App. Lexis 1969 (6th Cir. 2005)
(rejecting a student’s challenge to the school dress code because “she does not
wish to convey any particular message, but wishes only to wear clothes that she
thinks ‘looks nice on her’ and that ‘she feels good in’“). This latitude has
been recognized many times with clothing and appearance issues involving police
officers. See e.g., Kelley, 425 U.S. at 245 (1976) (noting that it was “highly
significant” that the plaintiff subject to the restriction on personal
appearance was a police officer and not a member of the public; police
department’s regulations “infringed on respondent’s freedom of choice in
personal matters”); Riggs v. City of Fort Worth, 229 F. Supp. 2d 572, 581
(N.D.Tex. 2002) (“Courts have long held that ‘the city though its police chief
has the right to promote a disciplined, identifiable, and impartial police
force by maintaining its police uniform as a symbol of neutral government
authority, free from expressions of personal bent or bias”) (quoting Daniels v.
Arlington, 246 F.3d 500, 503 (5th Cir. 2001)). Moreover, the conclusion that
the plaintiffs’ claimed right to have their spider web tattoos visible while on
duty or in uniform is not an “important, but not constitutional” right is
buttressed by a comparison to other rights that courts have found to be “important,
but not constitutional,” and therefore requiring intermediate scrutiny. See,
e.g., Ramos, 353 F.3d at 172, 175 (concluding that intermediate scrutiny
applied to town’s juvenile curfew; although infringement of an adult’s “freedom
of movement” would implicate strict
scrutiny, in the context of juveniles, the curfew was subject only to
intermediate scrutiny); Eisenbud v. Suffolk County, 841 F.2d 42, 45 (2d Cir.
1988) (applying intermediate scrutiny to county’s financial disclosure law for
certain county employees, which implicated the right to privacy, yet did not
require heightened scrutiny). In those cases, the “rights” were closely related
to a recognized constitutional right, yet subject to a strong countervailing
consideration-such as the parties’ status as juveniles or a county’s important
interest in deterring corruption and enhancing public confidence in the
integrity of the government. The plaintiffs here have not identified such an
analogous right, or a similar countervailing consideration.
The plaintiffs contend, however, that both the Supreme Court and
the Second Circuit “have presumed the existence of a liberty interest in one’s
personal appearance,” and cite Kelley, Commissioner Suffolk County Police Dep’t
v. Johnson, 425 [*250] U.S. at 244; Zalewska v. County of Sullivan, 316 F.3d at
321; and East Hartford Education Asso. v. Board of Education, 562 F.2d 838, 861
(2d Cir. 1977). Thus, although conceding that a public employer may place
restrictions on personal appearance in the workplace, the plaintiffs claim that
this case involves the “ability of the defendants to make arbitrary decisions
about the meaning of their appearance and, therefore, discriminate on the basis
of some vague notion that someone will be offended.” The presumption of a
liberty interest in those cases, however, was in the context of substantive due
process challenges to restrictions on personal appearance, and not in the
context of equal protection challenges. The plaintiffs have not asserted a
substantive due process challenge in this case based on a liberty interest in
one’s preferred appearance, but rather rely exclusively on their equal
protection challenge. n7 Indeed, the Court notes that, even though the Second
Circuit presumed the existence of a liberty interest in personal appearance in
the due process context in Zalewska, it applied the rational basis standard of
review to the plaintiffs’ equal protection claim in that case. See also Riggs,
229 F. Supp. 2d at 583 (applying rational basis standard of review to officer’s
claim that he was selectively treated on account of his tattoos). Finally, it
hardly seems that the reasoning of the decisions which have discussed the
suggested liberty interest in personal appearance are enough to elevate that
interest to warrant intermediate scrutiny in the Fourteenth Amendment context,
as in every case cited by the plaintiffs the restriction on personal appearance
was found to be constitutional. Indeed, intermediate scrutiny has consistently
been reserved for classifications such as gender, illegitimacy, and other
important rights such as freedom of movement-areas in apparent need of greater
scrutiny than the personal appearance of on-duty police officers. See Zalewska,
316 F.3d at 321. Therefore, the Court finds that rational basis, rather than
intermediate scrutiny, is the applicable standard of review. n8
Rational basis review requires that the law be rationally
related to a legitimate government interest. Ramos v. Town of Vernon, 353 F.3d
at 175 (citing Allied Stores of Ohio, Inc. v. Bowers, 358 U.S. 522, 528-29, 3
L. Ed. 2d 480, 79 S. Ct. 437, 82 Ohio Law Abs. 312 (1959)); Burke Mountain
Acad., Inc. v. United States, 715 F.2d 779, 783 (2d Cir. 1983)). A law or other
official action will survive this level of scrutiny unless the plaintiff
demonstrates that the class-based distinctions are wholly irrational. See,
e.g., Hodel v. Indiana, 452 U.S. 314, 331-32, 69 L. Ed. 2d 40, 101 S. Ct. 2376
(1981). In other words, under rational basis review, “a classification must be
upheld against equal protection challenge if there is any reasonably
conceivable state of facts that could provide a rational basis for the
classification.” Connolly v. McCall, 254 F.3d 36, 42 (2d Cir. 2001) (quoting
Heller v. Doe, 509 U.S. 312, 320, 125 L. Ed. 2d 257, 113 S. Ct. 2637 (1993)).
Moreover, the Second [*251] Circuit has cautioned that “rational basis review
in equal protection analysis is not a license for courts to judge the wisdom,
fairness, or logic of legislative choices.”
Id.
In the instant case, the stipulated facts demonstrate that Chief
Marquis and the command staff of the department were concerned that the spider
web tattoos could negatively affect relations among the officers in the
department, and between the officers in the department and the citizens of
Hartford-especially those from minority groups. This concern stems from a prior
history of troubled race relations in Hartford, and more specifically, from
certain particular recent events which have raised such tensions. The Court finds
that this constitutes a legitimate government interest. After seeking out
advice from groups such as the FBI and the City’s attorneys, and consulting the
ADL website, Chief Marquis concluded that the display of spider web tattoos may
affect the department’s legitimate interest in fostering harmonious race
relations both within the department and within the community. Plaintiffs may
disagree with Chief Marquis and the ADL as to the message-if any-the tattoos
convey, but the Chief at least had a rational basis and justification for
ordering that the tattoos be covered. n9 Therefore, the Court finds that Chief
Marquis’ memorandum ordering that such tattoos be concealed while an officer is
on duty or in uniform is rationally related to the department’s legitimate
interest in fostering harmonious race relations both within the department and
within the community. See Kelley, 425 U.S. at 247 (finding a “rational
connection between the regulation [of a police officer’s appearance]. . . and
the promotion of safety of persons and property”).
2) “Class of One”
In Olech, the Supreme Court reaffirmed that it has long
“recognized successful equal protection claims brought by a ‘class of one,’
where the plaintiff alleges that she has been intentionally treated differently
from others similarly situated and that there is no rational basis for the
difference in treatment.” Id.; accord African Trade & Info. Ctr., Inc. v.
Abromaitis, 294 F.3d 355, 364 (2d Cir. 2002) (explaining the two criteria of
the Olech “class of one” standard). n10 As to the first criterion, courts
consistently have stated that, “to be considered similarly situated, employees
must be similarly situated in all material respects.” Tuskowski v. Griffin, __
F. Supp. 2d at __, 2005 U.S. Dist. Lexis 3837, 2005 WL 599312 (citing cases).
Here, there is no dispute that only the plaintiffs’ visible spider web tattoos
have been ordered [*252] covered by Chief Marquis, and that no action has been
taken against any other officers in the police department with other visible
tattoos. Consequently, the Court assumes that, for purposes of the pending
motions for summary judgment, the plaintiffs have been intentionally treated
differently from other similarly situated police officers. See Harlen Assocs.,
Inc. v. Vill. of Mineola, 273 F.3d 494, 499 n.2 (2d Cir. 2001) (“As a general
rule, whether [individuals] are similarly situated is a factual issue that
should be submitted to the jury.”)
Again, the second criterion to a “class of one” equal protection
claim requires a plaintiff to demonstrate that “there is no rational basis for
the difference in treatment. “ Olech,
528 U.S. at 564. A government official’s decision “can be considered irrational
only when [the official] acts with no legitimate reason for [his or her]
decision.” Harlen Assocs., 273 F.3d at 500 (internal quotation marks omitted);
accord Harvey v. Mark, 352 F. Supp. 2d at 290. In other words, the official’s
act must be “irrational and wholly arbitrary.” African Trade & Info. Ctr.,
Inc. v. Abromaitis, 294 F.3d at 364; Giordano v. City of New York, 274 F.3d
740, 751 (2d Cir. 2001); Christman v. Kick, 342 F. Supp. 2d 82, 92 n.10
(D.Conn. 2004). In Part IV(B)(1) of this ruling, the Court found that Chief
Marquis’ directive ordering the spider web tattoos covered was rationally
related to a legitimate government interest. For all of the reasons set forth
in that discussion, the Court finds that the plaintiffs cannot, as a matter of
law, demonstrate that there was no rational basis for the difference in treatment.
Olech, 528 U.S. at 564.
3) “Selective Prosecution”
In an Olech “class of one” claim, a plaintiff must demonstrate
that there was no rational basis for the differential treatment, whereas in a
“selective prosecution” claim, a plaintiff must demonstrate that differential
treatment was based on an impermissible reason. See Cobb v. Pozzi, 363 F.3d at
109 (noting that a class of one claim and a selective prosecution claim are
“two related, yet different, equal protection arguments”); African Trade &
Info. Ctr, 294 F.3d at 364 (distinguishing between the two claims). Plaintiffs
asserting a selective prosecution claim are “required to show both (1) that
they were treated differently from other similarly situated individuals, and
(2) that such differential treatment was based on impermissible considerations
such as race, religion, intent to inhibit or punish the exercise of
constitutional rights, or malicious or bad faith intent to injure a person.”
Cobb v. Pozzi, 363 F.3d at 110; accord Harlen Assocs. v. Inc. Vill. of Mineola,
273 F.3d at 499; Charron v. City of Hartford, 356 F. Supp. 2d 166, 2005 U.S.
Dist. Lexis 2290 (D.Conn. 2005) ; Harvey v. Mark, 352 F. Supp. 2d at 290-91.
Even if the Court assumes that the plaintiffs were intentionally treated differently
than similarly situated police officers in the department, the plaintiffs have
not set forth any evidence demonstrating that the differential treatment was
based on impermissible considerations such as race, religion, intent to inhibit
or punish the exercise of constitutional rights, or on a malicious or bad faith
intent.
Accordingly,
the defendants are entitled to summary judgment on plaintiffs’ claim that they
were denied their rights to equal protection under the Fourteenth Amendment, in
violation of § 1983.
B) Count Two
In count two, the plaintiffs claim that Section III.C.5 is unconstitutionally vague on its face and as
applied, and that it is unconstitutionally overbroad for interfering [*253]
with the rights of the plaintiffs to express themselves freely. n11 Each claim
will be addressed in turn. n12
1) Facial Challenge
To show an enactment is unconstitutionally vague on its face,
“the complainant must prove that the enactment is vague ‘not in the sense that
it requires a person to conform his conduct to an imprecise but comprehensible
normative standard, but rather in the sense that no standard of conduct is
specified at all. Such a provision simply has no core.’“ Village of Hoffman Estates
v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495 n.7, 71 L. Ed. 2d 362,
102 S. Ct. 1186 (1982) (quoting Smith v. Goguen, 415 U.S. 566, 578, 39 L. Ed.
2d 605, 94 S. Ct. 1242 (1974) (citation omitted)). “Vagueness challenges to
[enactments] which do not involve First Amendment freedoms must be examined in
the light of the facts of the case at hand.” Id. at 495 n.7; accord U.S. v.
Rybicki, 354 F.3d 124, 129-30 (2d Cir. 2003). In other words, when the
interpretation of an enactment does not implicate First Amendment rights, it is
assessed for vagueness only “as applied . . . and not with regard to the
statute’s facial validity.” United States v. Nadi, 996 F.2d 548, 550 (2d Cir.
1993); see also Rybicki, 354 F.3d at 130 (“outside the First Amendment context,
vagueness challenges will be considered only as applied”); United States v.
Whittaker, 999 F.2d 38, 42 (2d Cir. 1993) (“Other than in the First Amendment
context, vagueness challenges also must be examined in light of the facts of
the case, on an as-applied basis”) (citation and internal quotation marks
omitted); United States v. Coonan, 938 F.2d 1553, 1562 (2d Cir. 1991) (“In the
absence of first amendment considerations, vagueness challenges must be
evaluated based on the particular application of the statute and not on the
ground that the statute may conceivably be applied unconstitutionally to others
in situations not before the Court”)
(internal citation, quotation marks and brackets omitted); United States v.
Peterson, 357 F. Supp. 2d 748, 2005 U.S. Dist. Lexis 3134, 2005 WL 457724
(S.D.N.Y. 2005) (conducting “as applied” analysis only because no First
Amendment rights were implicated). As noted previously, although the complaint
alleged violations of the plaintiffs’ First Amendment rights, the plaintiffs
have since abandoned those allegations. Consequently, their facial challenge to
Section III.C.5 must fail. n13
[*254]
2) “As Applied” Challenge
The Due Process clause of the Fourteenth Amendment requires
“that laws be crafted with sufficient clarity to ‘give the person of ordinary
intelligence a reasonable opportunity to know what is prohibited’ and to
‘provide explicit standards for those who apply them’“ General Media
Communications, Inc. v. Cohen, 131 F.3d
273, 286 (2d Cir. 1997) (quoting Grayned v. City of Rockford, 408 U.S. 104,
108, 33 L. Ed. 2d 222, 92 S. Ct. 2294 (1972). The Second Circuit has held,
however, that a statute or regulation is not required to specify every
prohibited act. Perez v. Hoblock, 368 F.3d 166, 175 (2d. Cir. 2004) (citing
cases); see also Rock of Ages Corp. v. Sec’y of Labor, 170 F.3d 148, 156 (2d
Cir. 1999) (“regulations need not achieve ‘meticulous specificity’ and may
instead embody ‘flexibility and reasonable breadth.’“ (quoting Grayned, 408
U.S. at 110)). “Limitations inherent in the English language often prevent the
drafting of statutes ‘both general enough to take into account a variety of
human conduct and sufficiently specific to provide fair warning that certain
kinds of conduct are prohibited. ‘“
Perez, 368 F.3d at 175 (quoting Arnett v. Kennedy, 416 U.S. 134, 159-60, 40 L.
Ed. 2d 15, 94 S. Ct. 1633 (1974)) . In addition, a court must be mindful that
the Supreme Court has expressed “greater tolerance of enactments with civil
rather than criminal penalties because the consequences of imprecision are
qualitatively less severe.” Village of Hoffman Estates, 455 U.S. at 498-99. n14
In an “as-applied” vagueness challenge, a court must look at the
“actual conduct” of the plaintiffs, and not “hypothetical situations at the
periphery of the regulation’s scope or with respect to the conduct of the other
parties whom might not be forewarned by the broad language.” Id. (quoting DiLeo
v. Greenfield, 541 F.2d 949, 953 (2d Cir. 1976). In other words, a court must evaluate
the challenged regulation “in light of the specific facts of the case at hand .
. . .” U.S. v. Rybicki, 354 F.3d 124, 129 (2d Cir. 2003) (quoting U.S. v. Nadi,
996 F.2d 548, 550 (2d Cir. 1993)). Moreover, when considering an “as-applied”
challenge, a [*255] court must consider the context in which the regulation was
enforced, i.e., it must evaluate the underlying conduct by reference to the
norms of the subject community. Perez, 368 F.3d at 175-76 (evaluating the claim
made by a “veteran of the horse-racing industry” within the context of the
“racing community”); see also Grayned v. City of Rockford, 408 U.S. at 112
(ordinance gave fair notice given the “particular context” of the case); Rock
of Ages Corp., 170 F.3d at 156 (“regulations satisfy due process as long as a
reasonably prudent person, familiar with the conditions the regulations are
meant to address and the objectives the regulations are meant to achieve, has
fair warning of what the regulations require”). n15 Finally, because “the
vagueness doctrine is based on notions of fair notice or warning,” a specific warning to a plaintiff
about what conduct is prohibited will render a claim of vagueness “untenable.”
Janusaitis v. Middlebury Volunteer Fire Dep’t, 607 F.2d 17, 27 (2d Cir. 1979)
(quotation marks omitted).
As noted previously, the plaintiffs’ vagueness challenge is to
the 2003 version of Section III.C.5 of General Order 6-15, which provides: “The
Chief of Police has the authority to order personnel to cover tattoos that are
deemed offensive and/or presenting an unprofessional appearance. Personnel
shall cover the tattoo with either a flesh tone, navy blue or white type
material that matches the uniform shirt or wear a long sleeve shirt in
accordance with the Winter Uniform of the Day Standard.” On its face, Section
III.C.5 fails to identify any specific tattoos that need to be covered, and
merely provides Chief Marquis with the authority to order specific tattoos
covered if they are deemed “offensive and/or presenting an unprofessional
appearance.” Therefore, under Section III.C.5, a police officer is able to
display a tattoo while on duty or in uniform until Chief Marquis issues a
subsequent order declaring that tattoo to be “offensive and/or presenting an
unprofessional appearance.”
Here,
pursuant to the authority granted to him in Section III.C.5, Chief Marquis
issued a memorandum on April 14, 2003, which required all police officers to
cover visible spider web tattoos. At such time as that memorandum was issued,
the plaintiffs had sufficient notice that having their spider web tattoos
visible while on duty or in uniform was prohibited conduct, and that those
tattoos must be covered. It is only when the plaintiffs here would
choose to display their tattoos by removing the covering materials that they
would be in violation of an order from Chief Marquis, and they would then have
sufficient notice of that potential uniform violation before it occurred.
Consequently, their claim that Section III.C.5 is unconstitutionally vague “as
applied “ to them is untenable. See Perez, 368 F.3d at 177-78 (rejecting a
vagueness claim because the plaintiff was on notice that he would be fined if
he did not cease his disruptive behavior); Janusaitis, 607 F.2d at 27
(firefighter’s dismissal for violation of department rule that proscribed
“unbecoming conduct detrimental to the welfare or good name of the Department”
was not vague as applied because firefighter had specific warning that his
conduct would violate that [*256] rule); In re Bithoney, 486 F.2d 319, 324 (1st
Cir. 1973) (holding that because respondent received a direct and specific warning from the court that his
“continued abuse of ... process” would constitute “conduct unbecoming a member
of the bar,” regulation under which respondent was penalized was not vague);
cf. DiLeo v. Greenfield, 541 F.2d 949, 953 (2d Cir. 1976) (finding that because
teacher’s “persistent pattern of neglecting his professional duties and
harassing and humiliating students ... continued and worsened after [plaintiff]
met with school administrators,” plaintiff could not reasonably claim not to
know that his behavior “constituted due and sufficient cause for dismissal”).
Plaintiffs likely would argue that this is a distinction without
a difference, as they really have no choice; the tattoos are permanent and it
was the decision to obtain the tattoo rather than to later cover it that needed
advance specific guidance. However, the burden of covering those tattoos with
the sweatband-type material is not substantial enough to eliminate that
distinction, especially since no expressive conduct is claimed, no interference
with the plaintiffs’ ability to perform their duties has been raised and no
significant personal discomfort has been argued.
The context in which Section III.C.5 and Chief Marquis’ subsequent order were enforced against the plaintiffs further compels the conclusion that their “as-applied” vagueness challenge must fail. First, although the plaintiffs’ challenge is to 2003 version of Section III.C.5, the Court notes that the first version of Section III.C.5 was adopted in 1997. That first version provided that: “Tattoos that are visible to the public and deemed offensive, immoral, or presenting an unprofessional appearance, as deemed by a supervisor, shall require the officer to cover said tattoo with a bandaging type material or a long sleeve shirt in accordance with the Uniform of the Day standards.” Since at least 1997, therefore, the plaintiffs have had general notice that tattoos are subject to regulation by the command staff of the department while they are on duty or in uniform. The plaintiffs were surely aware before they obtained their visible spider web tattoos that those tattoos were subject to review by their superiors, and could be ordered covered while on duty or in uniform.
Second, the Hartford Police General Orders that regulate the personal appearance of police officer are very specific when possible. The General Orders regulate such areas as “length/style of hair,” “detective/civilian dress code,” “seasonal uniform standards,” and others. General Order 6-15, Revision of April 14, 2003 . Thus, the authority granted to Chief Marquis in Section III.C.5 to regulate visible tattoos is part of a broad framework which regulates numerous other aspects of an officer’s appearance. Although many of the regulations set forth in the General Orders are specifically detailed, others in the “Personal Appearance Standards” section invest Chief Marquis with considerable discretion and rely on broad terms such as “unprofessional appearance.” n16 It would daunting indeed for the General Orders to set out the specific tattoos which are deemed offensive and to keep that list current. Much like conduct “detrimental to the best interests of racing” in Perez, it would be too high a burden to require more specificity for certain particular areas subject to [*257] control by the Chief. Limiting the standards of conduct or appearance to specifics such as George Carlin’s “seven words you can’t say on television” would be too restrictive in the context of prohibiting certain tattoos and is not required by the due process vagueness test.
Finally, as noted above, the Second Circuit instructs that an
“as-applied” vagueness challenge must be considered in context. In other words,
the experience and knowledge in the particular field of work or other activity
subject to regulation must be part of the analysis. Here, it is important to
consider that the plaintiffs are police officers who come into contact with
persons who have the spider web tattoo. That likely raised some question as to
the significance and message of that tattoo. Perhaps, as the plaintiffs
maintain, they knew nothing of that connotation; at least it should have raised
a question in their minds that would result in their contacting a superior
officer. n17
In sum, because of the context in which Section III.C.5 was
applied to the plaintiffs, and because the plaintiffs have been provided with
actual notice that having spider web tattoos was prohibited conduct, their “as
applied” vagueness challenge fails.
2) Overbreadth Challenge
In the complaint, the plaintiffs also claimed that Section
III.C.5 is “unconstitutionally overbroad for interfering with the rights of the
plaintiffs . . . to express themselves freely, as guaranteed by the first
amendment to the United States
Constitution.” As noted previously in this ruling, the plaintiffs no longer
allege that their freedom of expression was violated, and have withdrawn that
portion of the complaint. Consequently, the Court finds that the plaintiffs
have withdrawn their overbreadth claim as well.
Because the Court has found that the defendants are entitled to summary judgment on all of the alleged constitutional violations, the defendants motion for summary judgment on count two is GRANTED.
V - Conclusion
The plaintiffs’ motion for summary judgment
[Doc. # 19] is DENIED and the defendants’ motion for summary judgment [Doc. #
18] is GRANTED as to all counts. n18
The clerk is directed to close this case.
SO ORDERED this 30th day of March 2005, at
Hartford, Connecticut.
/s/ CFD
Christopher F. Droney
United States District Judge
Notes:
1 The complaint names Chief
Marquis in both his official and personal capacities. Although Chief Marquis
has since resigned, he remains a defendant in this action.
2 At the time of Knight’s
letter, only Inturri, Miele and Rooney had the spider web tattoos. At some
point in March, 2003, Besse and Castagna obtained spider web tattoos as well.
The complaint states that Besse and Castagna obtained their tattoos as a form
of protest and solidarity after criticism was first leveled at the other three
plaintiffs.
3 Although the stipulation
of facts makes numerous references to “the command staff of the department,” it
does not identify the other members of that group, but included Chief Marquis.
4 In Cintron v. Vaughan,
3:69cv13578(EBB), a settlement stipulation was approved by the district court
and entered as a consent decree on June 21, 1973 .
The Cintron case was
summarized as follows:
Cintron involved a
challenge, by a class of Hartford residents ‘who are members of the Black or
Puerto Rican-Spanish American racial group or both,’ to an allegedly systematic
pattern of police misconduct and discrimination towards members of racial minority
groups. Named as defendants were various police officers and city officials of
the City of Hartford. . . . The consent decree which was entered in Cintron
provided, in Part II, for a variety of police procedures designed to prevent
racially discriminatory practices by the police department. In Part III, the
decree provided that the Hartford Police Department would maintain and improve
its affirmative action plan in order to recruit and promote more minority
police officers.
Pollard v. City of
Hartford, 539 F. Supp. 1156, 1162 (D.Conn. 1982).
5 It is also important to
note that, at all relevant times, there was a collective bargaining agreement
(“CBA”) in effect between the City of Hartford and the Hartford Police Union,
of which the plaintiffs were and are members, which provided that discipline
shall be meted out only for “just cause.”
6 It is undisputed Chief
Marquis’ April 14, 2003 memorandum ordering spider web tattoos covered was
issued pursuant to official policy, and that Chief Marquis was a “municipal
policy maker” for purposes of the plaintiffs’ § 1983 claims against the City of
Hartford. See Monell v. Dep’t of Social Servs., 436 U.S. 658, 694, 56 L. Ed. 2d
611, 98 S. Ct. 2018 (it is only when the execution of a municipality’s “policy
or custom, whether made by its lawmakers or by
those whose edicts or acts may fairly be said to represent official
policy, inflicts the injury that the [municipality] as an entity is responsible
under § 1983”); Russo v. City of Hartford, 158 F. Supp. 2d 214, 223 (D.Conn.
2001) (“by pleading that [the Chief of Police] was the ultimate decision maker
with regard to the policies at issue in this case, [the plaintiff] has stated a
§ 1983 claim upon which relief can be granted against the City of Hartford”).
7 Plaintiffs’ counsel
confirmed at oral argument that there was no substantive due process claim
being asserted.
8 Even if the plaintiffs
were asserting a substantive due process claim
based on the claimed liberty interest in personal appearance, the
Court’s conclusion would be that Chief Marquis’ order requiring that the
tattoos be covered met the rational basis test, as described further in the
text of this ruling. See, e.g., Blau v. Fort Thomas Pub. Sch. Dis., 2005 U.S.
App. Lexis 1969, 2005 WL 291514, __ F.3d __, __ (6th Cir., Feb. 8, 2005)
(applying rational basis review to student’s claim that a school “dress code’s
prohibition on blue jeans” violated the student’s substantive due process
rights under the Fourteenth Amendment).
9 In support of their claim
that Chief Marquis’ order fails even rational basis review, the plaintiffs
argue that “the defendants concluded that plaintiffs’ tattoos were ‘offensive’
solely because one person thought it was.” That argument, however, is
unsupported by the stipulation of facts, which reveals that Chief Marquis and
the command staff of the department sought information from a variety of
sources on the meaning of spider web tattoos, and did not rely solely on
conclusions set forth in the letter received from Detective Knight.
10 Although titled “class
of one” claims, such a claim may be brought by groups comprised of more than
one plaintiff. See, e.g., Olech, 528 U.S. at 564 (“Whether the complaint
alleges a class of one or of five is of no consequence because we conclude that
the number of individuals in a class is immaterial for equal protection
analysis”); Cobb v. Pozzi, 363 F.3d at 110-12 (addressing a “class of one”
claim brought by two corrections officers); see also Hayes v. City of
Torrington, 2004 U.S. Dist. Lexis 12326, 2004 WL 1498135 at *1 (D.Conn., May
26, 2004 ) (“In their pleadings, Defendants have suggested that ‘class of one’ claims are limited to classes of
exactly one person. Defendants are wrong”).
11 It is important to note
that in count one the plaintiffs were challenging Chief Marquis’ April 14, 2003
memorandum which ordered them to cover their visible spider web tattoos, while
in count two the plaintiffs are challenging Section III.C.5, which provided
Chief Marquis with the authority to issue that memorandum.
12 Although the defendants’
motion for summary judgment claims that they are moving for summary judgment on
the complaint “in its entirety,” they have failed to brief the issue of
vagueness or overbreadth. Despite this deficiency, the Court construes the
defendants’ motion as one seeking summary judgment as to all claims, including
the vagueness and overbreadth claims.
13 Although in some limited
situations a facial challenge to a statute that does not implicate the First
Amendment may be brought, there is considerable disagreement as to what
standard would be applied. In United States v. Salerno, 481 U.S. 739, 745, 95
L. Ed. 2d 697, 107 S. Ct. 2095 (1987), the Supreme Court noted in dicta that
the test for facial unconstitutionality if the challenge is not raised under
the First Amendment is whether any “set of circumstances exists under which the
[statute in question] would be valid. The fact that the [statute] might operate
unconstitutionally under some conceivable set of circumstances is insufficient
to render it wholly invalid, since [the Court] has not recognized an
‘overbreadth’ doctrine outside the limited context of the First Amendment.” In
a more recent case, however, a plurality of the Supreme Court stated that, “to
the extent we have consistently articulated a clear standard for facial
challenges, it is not the Salerno formulation, which has never been the
decisive factor in any decision of this Court, including Salerno itself ....”
City of Chicago v. Morales, 527 U.S. 41, 54 n.2, 144 L. Ed. 2d 67, 119 S. Ct.
1849 (1999) (opinion of Stevens, J.). To the contrary, the plurality in Morales
stated that, in order to find that a statute which does not implicate First
Amendment rights vague on it face, “a court would have to conclude that the law
is ‘permeated’ with vagueness, and, perhaps, that it infringes on a
constitutional right and has no mens rea requirement.” U.S. v. Rybicki, 354
F.3d 124, 131 (2d Cir. 2003) (explaining the new approach set forth in
Morales). Because the Morales formulation has not been adopted by a majority of
the Supreme Court, and the Salerno formulation was announced in dicta and
disagreed with in Morales, the Second Circuit has not expressed which
formulation should be followed. See Rybicki, 354 F.3d at 132 n.3 (declining to
adopt or express a preference for either Salerno or Morales). This Court need
not decide which test, if any, applies to a facial challenge outside of the
context of the First Amendment because, under either test, Section III.C.5 is
sufficiently clear to survive such a challenge.
14 The Court of Appeals for
the Seventh Circuit has noted, in the context of a challenge to a rule adopted
by the Milwaukee Police Department to regulate the conduct of its members, that
“it is well-settled that the prohibition against vagueness extends to
administrative regulations affecting conditions of governmental employment as
well as to penal statutes, for the former may be equally effective as a
deterrent to the exercise of free speech as the latter.” Bence v. Breier, 501
F.2d 1185, 1188 (7th Cir. 1974).
15 Cranston v. City of
Richmond, 40 Cal.3d 755, 221 Cal.Rptr. 779, 710 P.2d 845, 851 (1985) (rejecting
vagueness challenge to “conduct unbecoming” administrative regulation for
governmental employment because, “where the language of a statute fails to
provide an objective standard by which conduct can be judged, the required
specificity may nonetheless be provided by the common knowledge and
understanding of members of the particular vocation or profession to which the
standard applies”).
16 For example, Section
III.C.2 provides that “any hairstyle that presents an unprofessional appearance
as deemed by the Chief of Police shall be prohibited.” Similarly, Section
III.C.6(c) provides that, for detectives and other officers required to wear
civilian clothing, “any clothing that is . . . deemed inappropriate by the unit
supervisor shall not be allowed.”
17 Surely, plaintiffs Besse
and Castagna had notice that some regarded the spider web tattoo as offensive;
they obtained their tattoos only one month before Chief Marquis’ directive and
after Knight’s letter and the Hartford city manager’s letter to Chief Marquis
indicating the City Council’s concern with the tattoos.
18 Even if the plaintiffs
had set forth a sufficient claim of a violation of their constitutional rights,
the Court would have granted Chief Marquis summary judgment on the ground of
qualified immunity because those rights were not “clearly established” at the
time Chief Marquis issued his declaration. See Saucier v. Katz, 533 U.S. 194,
201, 150 L. Ed. 2d 272, 121 S. Ct. 2151 (2001) (after a constitutional
violation is shown, “the next, sequential step is to ask whether the right was
clearly established. This inquiry, it is vital to note, must be undertaken in
light of the specific context of the case, not as a broad general
proposition”); see also Anderson v. Recore, 317 F.3d 194, 197 (2d Cir. 2003)
(“clearly established” means that “(1) the law is defined with reasonable
clarity, (2) the Supreme Court or the Second Circuit has recognized the right,
and (3) a reasonable defendant [would] have understood from the existing law
that [his] conduct was unlawful”) (quotation marks omitted).