Locurto v. Giuliani
| Decision Date | 27 April 2006 |
| Docket Number | Docket No. 04-6480-CV(L).,Docket No. 04-6498-CV(CON).,Docket No. 04-6499-CV(CON). |
| Citation | 447 F.3d 159 |
| Parties | Joseph LOCURTO, Jonathan Walters, and Robert Steiner, Plaintiffs-Appellees, v. Rudolph GIULIANI, Mayor of the City of New York, Howard Safir, Commissioner of the New York City Police Department, The City of New York, and Thomas Von Essen, Commissioner of the New York City Fire Department, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Second Circuit |
Christopher Dunn (Arthur Eisenberg, of counsel), New York Civil Liberties Union, New York, N.Y., for Plaintiff-Appellee Joseph Locurto.
Michael N. Block, Sullivan Papain Block McGrath & Cannavo, P.C., New York, N.Y., for Plaintiff-Appellee Jonathan Walters.
Robert Didio, Kew Gardens, N.Y., for Plaintiff-Appellee Robert Steiner.
Elizabeth I. Freedman, Assistant Corporation Counsel (Francis F. Caputo, Jonathan Pines, and Michael A. Cardozo, Corporation Counsel of the City of New York, of counsel), New York, N.Y., for Defendants-Appellants.
Mitchell A. Karlan (David L. Kerstein, Farrah L. Pepper, and Matthew S. Kahn, of counsel), Gibson Dunn & Crutcher LLP, New York, N.Y., for Amici Curiae The Lawyers' Committee for Civil Rights Under Law (John C. Brittain, Michael L. Foreman, and Nicole J. DeSario, Washington, D.C., of counsel), The National Black Police Association, The National Association of Black Law Enforcement Officers, The National Association for the Advancement of Colored People (Angela Ciccolo and Victor Goode, of counsel), The International Association of Black Professional Fire Fighters, and The National Asian Pacific American Legal Consortium (Vincent Eng, of counsel).
Before: OAKES, CALABRESI, and WESLEY, Circuit Judges.
The Government as employer bears a special burden. Absent contrary legislation, a private employer may regulate the workplace environment, and hire, fire, and promote as it pleases. The Government enjoys no such freedom. As the Supreme Court has said, "the state and federal governments, even in the exercise of their internal operations, do not constitutionally have the complete freedom of action enjoyed by a private employer." Cafeteria & Rest. Workers Union, Local 473 v. McElroy, 367 U.S. 886, 897-98, 81 S.Ct. 1743, 6 L.Ed.2d 1230 (1961). The Government as employer may not discriminate arbitrarily, regardless of the statutory regime, see Rutan v. Republican Party of Ill., 497 U.S. 62, 98, 110 S.Ct. 2729, 111 L.Ed.2d 52 (1990), and conspicuously unlike a private employer, it must respect its employees' First Amendment rights to free speech, see City of San Diego v. Roe, 543 U.S. 77, 80, 125 S.Ct. 521, 160 L.Ed.2d 410 (2004).
At the same time, the Supreme Court has recognized, in a variety of doctrinal contexts, that "the status of the Government as a . . . market participant must be sharply distinguished from the status of the Government as regulator or administrator." Dir., Office of Workers' Comp. Programs v. Newport News Shipbuilding & Dry Dock Co., 514 U.S. 122, 128, 115 S.Ct. 1278, 131 L.Ed.2d 160 (1995). As a result, even the Government as an employer, and hence as a consumer of labor, must retain some freedom to dismiss employees who do not meet the reasonable requirements of their jobs. In the case before us, we must reconcile a Government employee's right to engage in protected speech with the right of a Government employer "to protect its own legitimate interests in performing its mission." Roe, 543 U.S. at 82, 125 S.Ct. 521.
The plaintiffs — former New York Police Department ("NYPD") officer Joseph Locurto and former New York Fire Department ("FDNY") firefighters Jonathan Walters and Robert Steiner — brought suit against the defendants — former New York City Mayor Rudolph Giuliani, former NYPD Commissioner Howard Safir, former FDNY Commissioner Thomas Von Essen, and the City of New York — claiming that they were illegally fired from their positions in the NYPD and the FDNY in retaliation for their participation in a Labor Day parade, on a float that featured mocking stereotypes of African-Americans. The district court entered judgment for the plaintiffs, holding that they were discharged, not on any legitimate grounds, such as the disruption or threat of disruption that their actions had caused to the operations of the police and fire departments, but in retaliation for the content of their speech, and hence in violation of the First and Fourteenth Amendments. Because we conclude that the defendants fired the plaintiffs out of a reasonable concern for disruption, and that this concern outweighed the plaintiffs' individual expressive interests, we reverse the district court, and remand the case to that court with instructions to enter judgment for the defendants.
Each of the three plaintiffs is a white resident of Broad Channel, a small, predominantly white, island community in southeast Queens. Locurto, a Broad Channel native, was an NYPD officer from 1994 until his termination in October 1998. During that time, he was assigned to the racially-mixed 104th precinct in Queens and received consistently positive reviews from his supervisors there. Steiner, who has lived in Broad Channel since 1996, was an FDNY firefighter from 1996 until October 1998. At the time of his firing, Steiner was assigned to Ladder 17 in the South Bronx, a 98 percent minority community. There had never been any reported problems between Steiner and his colleagues or the public. Walters is a lifelong Broad Channel resident who joined the FDNY in 1990. For the three years leading up to his discharge in October 1998, he worked at Engine Company 231 in Brownsville, a predominantly African-American and Hispanic neighborhood in Brooklyn. All of Walters's performance evaluations during his FDNY tenure showed a rating of "satisfactory" or higher, and he had no reported difficulty with any of his fellow firefighters, four of whom were African-American.
Each year, Broad Channel plays host to a loosely organized Labor Day parade. The parade features, among other things, floats with varying themes and of varying degrees of sophistication. Local politicians award prizes to floats designated, for example, "prettiest," "most original," and "funniest." In each of the nine years leading up to 1998, the prize for funniest float was awarded to a particular group of individuals who entered floats that often, but not always, featured racial, ethnic, or other stereotypes, and that played off themes from popular culture. In 1994, for example, this group entered a float entitled "Hasidic Park," a play on the film Jurassic Park, that featured stereotypes of Hasidic Jews living in prehistoric times. The group's 1996 float, called "Gooks of Hazard," depicted Asian stereotypes. Another year, the float styled itself "Happy Gays" and made fun of gay men. Steiner and Walters participated in each of these floats, and Locurto in the 1996 and 1997 floats. There is no evidence that any of the previous floats generated any substantial contemporaneous controversy or public attention.
For the September 7, 1998 Labor Day parade, the group, which included the plaintiffs, decided to enter a float called "Black to the Future — Broad Channel 2098." The conceit, a play on the 1985 time-travel film Back to the Future, was to depict how Broad Channel would look in 2098 when, presumably, the community would be more integrated than it was in 1998. Each of the float participants, including the plaintiffs, covered their faces in black lipstick, donned Afro wigs, and accompanied the float along the procession in attire ranging from overalls with no T-shirt underneath, to cut-off jeans and ratty T-shirts, to athletic pants and sweatshirts. The float itself featured two buckets of Kentucky Fried Chicken on the hood of a flatbed truck. One of the participants (not a plaintiff in this case) ate a watermelon and at one point threw the remains into the crowd. The float participants engaged in various chants, including, "No Justice, No Peace," "This isn't Johannesburg," and "We didn't land on Broad Channel, Broad Channel landed on us."1 Plaintiffs Steiner and Walters yelled to the crowd, "Crackers, we're moving in," and Walters simulated "break dancing" alongside the float.
Near the end of the procession, and apparently without the others' knowledge, Walters held onto the truck's tailgate, pretending to be dragged by the truck, and yelled, "Look what they did to our brother in Texas, we would not allow them here. . . ." The scene was intended to invoke and parodically recreate the dragging death of James Byrd, Jr., an African-American man who had been murdered months earlier outside of Jasper, Texas after being chained to the back of a moving pickup truck by three white men.
The float never reached the viewing stand to be sized up for the annual funniest float prize because a thunderstorm ended the parade early.
The next evening, a local news broadcast aired amateur video footage of the float in a piece entitled "Racist Float." Extensive press coverage followed immediately, with the New York Times reporting three days later on the front of its Metro section that, according to "city officials," New York City police officers and firefighters had taken part in the float. See David W. Chen, Officers and Firemen Wore Blackface on Float, Officials Say, N.Y. Times, Sept. 11, 1998, at B1. The paper quoted Mayor Giuliani as saying, in a statement, " " Id.
On the afternoon of September 11, 1998, the day the Times story ran, Locurto learned that the NYPD...
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