Bence v. Breier, 73-1655

• Decision Date: 14 August 1974
• Docket Number: No. 73-1655,73-1655
• Citation: 501 F.2d 1185
• Parties: 87 L.R.R.M. (BNA) 2376 Allen BENCE, as an Individual and as a representative of the class of Milwaukee Policemen similarly situated, et al., Plaintiffs-Appellees, v. Harold A. BREIER, as an Individual and as Chief of Police of the city ofMilwaukee and the City of Milwaukee, a municipality, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1185

501 F.2d 1185

87 L.R.R.M. (BNA) 2376

Allen BENCE, as an Individual and as a representative of the

class of Milwaukee Policemen similarly situated,

et al., Plaintiffs-Appellees,

v.

Harold A. BREIER, as an Individual and as Chief of Police of

the city ofMilwaukee and the City of Milwaukee, a

municipality, Defendants-Appellants.

No. 73-1655.

United States Court of Appeals, Seventh Circuit.

Argued Feb. 21, 1974.

Decided Aug. 14, 1974.

Rudolph T. Randa, Asst. City Atty., Milwaukee, Wis., for defendants-appellants.

Gerald P. Boyle, Milwaukee, Wis., for plaintiffs-appellees.

Before CASTLE, Senior Circuit Judge, CAMPBELL ^* and JAMESON, ^** Senior District Judges.

CASTLE, Senior Circuit Judge.

Defendants Harold A. Breier, Chief of Police of Milwaukee, Wisconsin and the City of Milwaukee appeal from an order granting summary judgment in favor of plaintiffs Allen Bence and Carl E. Hanneman, Milwaukee policemen, and the Milwaukee Professional Policemen's Protective Association ('MPPPA'), in a civil rights action to compel the Milwaukee Police Department to remove official reprimands issued against Bence and Hanneman from its personnel files. On appeal, the defendants contend that the lower court erred in its determination that a Departmental rule proscribing 'conduct unbecoming a member and detrimental to the service' was unconstitutionally vague. We affirm the order of the district court.

On July 13, 1970, the members of the Milwaukee Police Department's late shift, which normally commenced work at midnight, were alerted at 7 p.m. to stand by in their homes and be available for duty if a potential emergency situation materialized. Subsequently, the entire late shift was called to duty early, including thirty-six sergeants and patrolmen who were on their regular off day. In accordance with the terms of a contract between the City of Milwaukee and the MPPPA (the recognized bargaining agent for all members of the Milwaukee Police Department of the rank of sergeant or below), twenty of the thirty-six men were compensated at the rate of time and one-half. However, sixteen men did not receive the additional increment at that time, because their superiors failed to place the appropriate 'CODE 8' or 'CODE 9' designation on their time cards, as required by Departmental rule.

On the following day, Bence and Hanneman, the MPPPA's president and trustee, respectively, sent a letter to the City's chief labor negotiator, James J. Mortier, entitled 'RE: OUR BARGAINING DEMAND FOR NEGOTIATIONS, YEAR 1971, ITEM 37, STANDBY TIME and ABRIDGEMENT OF BENEFITS UNDER CURRENT CONTRACT.' In the letter, Bence and Hanneman referred to the Department's alert on the previous evening as an example of a stand-by situation, which Mortier had allegedly previously asserted 'never happens.' The men then gave notice of their intention to press a demand for contractual compensation of stand-by time at the next bargaining session between the City and the MPPPA. Bence and Hanneman further stated that in their opinion many of the policemen called to duty early were on their regular off day, and they erroneously asserted, 'None of these men on a regular off day July 13th, who were called to early duty on this regular off day, were compensated at the rate of time and one-half.' The policemen requested that the labor negotiator investigate their information concerning uncompensated personnel and direct payment be made to those police patrolmen and sergeants entitled to the additional amount. Finally, the letter suggested that the term 'regular off day' and similar terms be defined by the parties to the collective bargaining agreement in order to prevent any future misunderstandings. Bence and Hanneman had copies of this letter posted on MPPPA bulletin boards at various police locations.

Prior to sending the letter, Bence and Hanneman neither attempted to verify the accuracy of their allegation through consultation with their commanding officers nor sought to remedy the supposed breach of the collective bargaining agreement through intra-departmental demands. Rule 29, section 69, of the Rules and Regulations of the Milwaukee Police Department provides:

Members of the Department who wish to air grievances regarding conditions of employment or other conditions which they believe are contrary to the best interests of the public service shall consult with their commanding officers in an effort to resolve their grievances. If the member feels that the matter requires further consideration, he shall make a detailed report through his commanding officer to the Chief of Police.

Bence told police investigators that his basis for the incorrect allegation in the letter was information received from policemen in a particular police district, while Hanneman stated that he relied on a discussion at a meeting of the MPPPA board of trustees.

On December 23, 1970, both Bence and Hanneman were officially reprimanded for violating rule 44, section 8, of the Department's rules and regulations, which provides:

Any member of the Department may be dismissed from the service or suffer such other punishment as the Chief of Police may direct when charged with and when any of the following offenses are substantiated: . . . Conduct unbecoming a member and detrimental to the service . . .. ¹ The officers were advised that their reprimands would be made part of their personnel records, and they were admonished for using poor judgment and for failing to attempt to resolve the matter first through Departmental channels.

The sole issue presented on this appeal is whether the district court correctly concluded that the phrase 'conduct unbecoming an officer and detrimental to the service' is unconstitutionally vague.

It is a central tenet of constitutional law that 'a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.' Connally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322 (1926). In that case, the Supreme Court sought to determine whether a criminal statute was 'sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties.' Id. At issue in the present case is a rule adopted by the Milwaukee Police Department to regulate the conduct of its members. However, 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. Muller v. Conlisk, 429 F.2d 901 (7th Cir. 1970); see, Soglin v. Kauffman, 418 F.2d 163 (7th Cir. 1969). In both contexts, the policies underlying the proscription against vagueness are applicable:

First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters . . . for resolution on an ad hoc and subjective basis, with all the attendant dangers of arbitrary and discriminatory application. Third, but related, where a vague statute 'abut(s) upon sensitive areas of basic First Amendment freedoms,' it 'operates to inhibit the exercise of (those) freedoms.' Uncertain meanings inevitably lead citizens to "steer far wider of the unlawful zone' . . . than if the boundaries of the forbidden areas were clearly marked'. Grayned v. City of Rockford, 408 U.S. 104, 108-109, 92 S.Ct. 2294, 2298, 33 L.Ed.2d 222 (1972) (Marshall, J.).

Vagueness, however, is a matter of degree and context. We recognize that 'there are limitations in the English language with despect to being both specific and manageably brief,' United States Civil Service Commission v. National Association of Letter Carriers, AFL-CIO, 413 U.S. 548, 578-579, 93 S.Ct. 2880, 2897, 37 L.Ed.2d 796 (1973), and that 'condemned to the use of words, we can never expect mathematical certainty from our language.' Grayned v. City of Rockford, supra at 110, 92 S.Ct. at 2300. Moreover, we recognize that there 'are areas of human conduct where, by the nature of the problems presented, legislatures simply cannot establish standards with great precision,' Smith v. Goguen, 415 U.S. 566, 581, 94 S.Ct. 1242, 1251, 39 L.Ed.2d 605, 42 U.S.L.W. 4393, 4398 (Mar. 25, 1974) and therefore the vagueness doctrine is 'not a principle designed to convert into a constitutional dilemma the practical difficulties in drawing criminal 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.' Colten v. Kentucky, 407 U.S. 104, 110, 92 S.Ct. 1953, 1957, 32 L.Ed.2d 584 (1972). Yet, the 'root of the vagueness doctrine is a rough idea of fairness.' Id. ²

In contrast with Colten v. Kentucky, supra, and Waters v. Peterson, 495 F.2d 91 (D.C.Cir. 1973), there is no basis in this case for concluding that the conduct which the Chief of Police sought to proscribe is inherently unsusceptible to language expressing more specific prohibitions. Indeed, the Chief of Police was able to specifically identify thirty other grounds for termination or punishment, each of which would presumably also be unbecoming conduct. This case is also significantly different from Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974), where the Supreme Court held that the provision authorizing removal or suspension of federal civil...