264 F.3d 154 (2nd Cir. 2001), 00-7628, Locurto v Safir

Docket Nº:Docket Nos. 00-7628, 00-7632, 00-7634
Citation:264 F.3d 154
Party Name:JOSEPH LOCURTO, PLAINTIFF-APPELLEE, v. HOWARD SAFIR, COMMISSIONER OF THE NEW YORK CITY POLICE DEPARTMENT, THE CITY OF NEW YORK AND RUDOLPH GIULIANI, MAYOR OF THE CITY OF NEW YORK, DEFENDANTS-APPELLANTS. Page 155 JONATHAN WALTERS, PLAINTIFF-APPELLEE, v. RUDOLPH GIULIANI, MAYOR OF THE CITY OF NEW YORK, THOMAS VON ESSEN, COMMISSIONER OF THE FIRE DEP
Case Date:August 27, 2001
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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Page 154

264 F.3d 154 (2nd Cir. 2001)

JOSEPH LOCURTO, PLAINTIFF-APPELLEE,

v.

HOWARD SAFIR, COMMISSIONER OF THE NEW YORK CITY POLICE DEPARTMENT, THE CITY OF NEW YORK AND RUDOLPH GIULIANI, MAYOR OF THE CITY OF NEW YORK, DEFENDANTS-APPELLANTS.

Page 155

JONATHAN WALTERS, PLAINTIFF-APPELLEE,

v.

RUDOLPH GIULIANI, MAYOR OF THE CITY OF NEW YORK, THOMAS VON ESSEN, COMMISSIONER OF THE FIRE DEPARTMENT OF THE CITY OF NEW YORK, AND THE CITY OF NEW YORK, DEFENDANTS-APPELLANTS.

ROBERT STEINER, PLAINTIFF-APPELLEE,

v.

RUDOLPH GIULIANI, MAYOR OF THE CITY OF NEW YORK, THOMAS VON-ESSEN, COMMISSIONER OF THE NEW YORK CITY FIRE DEPARTMENT, THE CITY OF NEW YORK, DEFENDANTS-APPELLANTS.

Docket Nos. 00-7628, 00-7632, 00-7634

United States Court of Appeals, Second Circuit

August 27, 2001

Argued: December 11, 2000

Defendants appeal the opinion and order entered on April 28, 2000 in the United States District Court for the Southern District of New York (Sprizzo, J.), denying defendants' motion for summary judgment on their qualified immunity defense to plaintiffs' First Amendment and due process claims.

Appeal dismissed in part, judgment below reversed in part, and plaintiffs' due process claim dismissed.

Page 156

[Copyrighted Material Omitted]

Page 157

George Gutwirth, New York, New York (Francis F. Caputo, John F. Wirenius, Leonard J. Koerner, Michael D. Hess, Corporation Counsel of the City of New York, New York, New York, of counsel), for Defendants-Appellants.

Christopher Dunn, New York, New York (Arthur Eisenberg, Norman Siegel, New York Civil Liberties Union Foundation, New York, New York, of counsel), for Plaintiff-Appellee Joseph Locurto.

Michael N. Block, New York, New York (Sullivan Papain Block McGrath & Cannavo P.C., New York, New York, of counsel), for Plaintiff-Appellee Jonathan Walters.

Robert Didio, Kew Gardens, New York (Brettschneider & Didio, Llp, Kew Gardens, New York, of counsel), filed a brief for Plaintiff-Appellee Robert Steiner.

Before: Oakes, Cardamone, and Parker, Circuit Judges.

Page 158

Cardamone, Circuit Judge

On a Sunday afternoon in September 1998, 80 or so people, including two of the plaintiffs, attended a barbecue hosted by the third plaintiff in Broad Channel, Queens, New York. This social occasion was the genesis of a racist float entered the following day in Broad Channel's annual Labor Day parade. All three plaintiffs actively participated on the float, they say, as an exercise of their First Amendment right of freedom of speech. When the defendant Mayor of New York became aware of plaintiffs' participation in the float, he indicated they would be fired from their positions as city employees. Plaintiffs' actions and their ultimate termination from city employment touched off the instant litigation and this appeal, on a record that the district court correctly characterized as "murky." Thus, whet was to have been a bright occasion quickly came to darkness and confusion.

Plaintiffs Joseph Locurto, Jonathan Walters, and Robert Steiner each brought suit pursuant to 42 U.S.C. § 1983 (1994 & Supp. V 1999), alleging they were terminated illegally from their positions of public employment, as a police officer and as firefighters with the City of New York, respectively. They claim they were fired without due process, and in retaliation for participating in the racially offensive float. Their complaints seek monetary and injunctive relief, and name the following as defendants: Rudolph W. Giuliani, Mayor of the City of New York; Howard Safir, former Commissioner of the New York City Police Department; Thomas Von Essen, Commissioner of the New York City Fire Department; and the City of New York.

BACKGROUND

The Broad Channel Labor Day Parade

Plaintiff Steiner hosted a barbecue at his home in Broad Channel for several score of his friends, including plaintiffs Locurto and Walters on September 6, 1998, a Sunday afternoon. There the possibility of creating a float for the town's annual Labor Day parade to be held the next day was discussed. The same group had previously sponsored floats titled "The Gooks of Hazzard" that parodied Asian Americans and the television show "The Dukes of Hazzard"; "Hasidic Park" that parodied Jewish Americans and the movie "Jurassic Park"; "Dysfunctional Family Feud" that poked fun at two local non-profit groups and spoofed a television game show; and "Jamaica Bay Watch" that addressed local water pollution concerns.

Two possible themes for the 1998 float were considered. One was a "Gottizilla" theme parodying Italian Americans. The other was a "Black to the Future -- Broad Channel 2098" theme purportedly parodying African Americans while referring to the future effects of racial integration on the predominantly Caucasian community of Broad Channel. When they parted Sunday night, plaintiffs thought the float would be the proposed "Gottizilla" theme, but when Locurto and Walters arrived at Steiner's house early Monday afternoon, the group had shifted to the "Black to the Future" theme, allegedly because there was insufficient time to complete the "Gottizilla" float.

The Broad Channel Labor Day Parade began at 1:30 p.m. The "Black to the Future" float was the last one and so did not leave the starting point until 2:00. Because of the advent of a heavy rainstorm at 2:30, the parade was canceled, so that the "Black to the Future" float never reached the viewing stand at the parade's end where local politicians judged the floats. During the half hour that the float was in the parade, Locurto, Walter, Steiner

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and several friends rode it costumed in blackface. Some participants chanted slogans such as "Crackers, we're moving in," and "No justice, no peace." Included as props were Kentucky Fried Chicken buckets, and a number of participants ate watermelon and threw the rinds to the audience. At one point, Walters grabbed the back of the truck carrying the float and let himself dangle towards the ground, in parody of the dragging murder of James Byrd, Jr. in Jasper, Texas a few months earlier.

Locurto, Walters, and Steiner were at the time public employees of the City of New York. Locurto had served as a police officer since February 1994, on assignment in a racially mixed precinct in Queens, without involvement in any violent or racial incidents. In addition to making over 30 arrests during his four years as an officer, Locurto had received an award for apprehending a fleeing felon. Steiner had joined the City Fire Department as a firefighter in February 1996, had served for a time in the South Bronx, and similarly had never been involved in any racial incidents. Walters had served with the Fire Department for eight years, the last three of which were spent without incident in a racially mixed neighborhood in Brooklyn after Walters' voluntary transfer.

All three of these men participated in the parade solely as citizens of the Broad Channel community, without wearing uniforms or other insignia that might identify them with their respective departments. Yet, as lifelong residents of Broad Channel, the possibility existed that they were individually recognizable to the crowd that gathered to watch the parade.

The Public Controversy

The day following the parade, Tuesday, September 8, a television news station aired a videotape of the parade featuring the "Black to the Future" float. Much public controversy ensued. When informed that city personnel had participated in the float, New York City Mayor Rudolph W. Giuliani was quoted as responding, "I've spoken to [Police and Fire] Commissioners Safir and Von Essen, and we all agree that any police officer, firefighter or other city employee involved in this disgusting display of racism should be removed from positions of responsibility immediately. They will be fired." David W. Chen, Officers and Firemen Wore Blackface on Float, Officials Say, N.Y. Times, Sept. 11, 1998, at B1. At the same time, Locurto became aware that the Police Department was interested in talking to him about his involvement in the parade. When he came forward on Friday, September 11 -- and before being asked any questions about what he had done -- he was suspended from his job without pay. Steiner and Walters also met with the Fire Department to admit their participation, and they too were suspended.

On Saturday morning, September 12, Locurto held a press conference in which he apologized for his conduct. Mayor Giuliani publicly commented in response, "I'm not going to take the responsibility of keeping him on the police force and then three years from now he hurts somebody and somebody wants to know why he wasn't removed. The only way this guy gets back on the police force is if the Supreme Court of the United States tells us to put him back." Kit R. Roane, Suspended Officer Apologizes, Calling Float 'a Big Mistake', N.Y. Times, Sept. 13, 1998, at A51. That same day, the Reverend Al Sharpton led a march of over 100 demonstrators through the Broad Channel community, explaining that during the parade people were laughing and clapping, and his supporters wanted to let them know "it's not funny to us." David M. Herszenhorn,

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Sharpton-Led March Gets Warm Reception, N.Y. Times, Sept. 13, 1998, at A51.

The Disciplinary Proceedings: Police Officer Locurto

A week after the parade, on September 14, the New York City Police Department charged Locurto with two violations of Patrol Guide 104-01, page 3, paragraphs 2(a) and 4. The first alleged he had engaged "in conduct prejudicial to the good order, efficiency and discipline of the Department, to wit: said Officer did participate in and appear on a Labor Day parade float which depicted African-Americans in a demeaning and offensive manner." The second...

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