Baron v. Meloni

• Decision Date: 18 February 1983
• Docket Number: No. CIV-82-816T.,CIV-82-816T.
• Citation: 556 F. Supp. 796
• Parties: Robert G. BARON, Plaintiff, v. Andrew P. MELONI, Individually and as Sheriff of the County of Monroe, and The County of Monroe, Defendants.
• Court: U.S. District Court — Western District of New York

556 F. Supp. 796

Robert G. BARON, Plaintiff, v. Andrew P. MELONI, Individually and as Sheriff of the County of Monroe, and The County of Monroe, Defendants.

No. CIV-82-816T.

United States District Court, W.D. New York.

February 18, 1983.

Donald A. Forsyth & Sons, Rochester, N.Y. (Scott A. Forsyth, Rochester, N.Y., of counsel), for plaintiff.

John D. Doyle, County Atty., County of Monroe, Rochester, N.Y. (Nira T. Kermisch, Rochester, N.Y., of counsel), for defendants.

MEMORANDUM DECISION and ORDER

TELESCA, District Judge.

The plaintiff, Robert G. Baron (Baron), was a deputy sheriff with the Monroe County Sheriff's Department until he was terminated on May 7, 1980 for insubordination by disobeying orders of his superiors. He then commenced this action pursuant to 42 U.S.C. 1983 claiming violation of constitutional rights guaranteed by the First and Fourteenth Amendments.

Both parties move for summary judgment and essentially concede there are no serious differences with the factual background. Fed.Rule Civ.P. 56(c).

FACTUAL BACKGROUND

The plaintiff was sworn in as a Deputy Sheriff in the Monroe County Sheriff's Department on February 22, 1971, and was for the most part assigned to the road patrol. On April 20, 1978 the plaintiff's patrol vehicle was observed in the driveway of Angelo Vaccaro's home, then under surveillance by the Organized Crime Task Force as the residence of a reputed mobster. The vehicle, a marked Sheriff's car, was observed at the house from 1:00 A.M. until 5:00 A.M. when plaintiff was on duty, and the Task Force notified the Sheriff's Office of these observations. Plaintiff in his affidavit to this Court admits having been in the Vaccaro home in March, 1978 to return a watch to "... Linda's Vaccaro home ... and had coffee and left one-half hour later."

On April 24, 1978, Baron was confronted with this information by the Chief of Detectives who ordered him not to associate with Linda Vaccaro, thereby disregarding Baron's disclaimer of any personal acquaintanceship with Linda Vaccaro. Plaintiff was subsequently observed in Linda Vaccaro's company on three separate occasions during June and July of 1978. On July 7, 1978, Baron was again ordered by Chief Deputy Thomas Cellura to refrain from associating with Linda Vaccaro; and on July 17, 1978, the Sheriff, (then William Lombard) filed disciplinary charges against plaintiff charging him with insubordination. Plaintiff was unsuccessful in State court in having the charges dismissed prior to an administrative hearing, and a hearing on these charges never materialized. See Baron v. Lombard, 50 N.Y.2d 896, 430 N.Y.S.2d 591, 408 N.E.2d 920 (1981).

New charges were filed against the plaintiff on April 13, 1979, arising from plaintiff's continued association with Linda Vaccaro in violation of the Sheriff's order. Plaintiff again sought (in State court) to prevent the Sheriff from administratively proceeding on these charges, but his action was dismissed, no appeal was taken, and no hearing was held.

On March 22, 1980, Linda Vaccaro was involved in an automobile accident while driving Baron's privately-owned automobile and on the same date, a third set of charges were filed against Baron alleging (1) insubordination for failing to follow the June, 1978 order to stay away from Linda Vaccaro, (2) conduct discrediting the Department, and (3) "consorting with persons of ill-repute". An administrative hearing was held on April 21 and 22, 1980; and on May 6, 1980, the hearing officer ruled that the defendant had violated the Sheriff's Department regulations proscribing insubordination and found that:

There were two orders given to Deputy Baron by superior officers having appropriate authority in the departmental chain of command to render such orders. The orders were specific and capable of understanding. There is no dispute that they were violated. (Emphasis supplied)¹

The hearing officer also determined that the orders given to Baron had a rational basis at the time they were given, and since they had never been rescinded or terminated, Baron had violated the orders by his "continual association with Linda Vaccaro". However, the hearing officer concluded in dictum that the original order no longer had any reasonable basis because "Mrs. Vaccaro does not appear to be the focus of any surveillance, investigation or prosecution", making it difficult "to envision any interest that the department can continue to have in restraining Deputy Baron's right to associate with her". The hearing officer was referring to the fact that Angelo Vaccaro was found guilty of felony charges in Federal Court in 1979 and is presently incarcerated as a result of that conviction, which has been affirmed.² Vaccaro obtained a decree of divorce on June 16, 1980, and plaintiff and Linda Vaccaro were married on July 13, 1980.

THE ISSUE

The question presented on this motion for summary judgment is whether Baron's failure to obey orders prohibiting his association with Linda Vaccaro which resulted in his dismissal for insubordination, presents a cognizable claim under 42 U.S.C. 1983 in view of the facts as presented by the parties.

DISCUSSION

Plaintiff's first argument claiming that his discharge constitutes an unconstitutional infringement of his right of free association lacks merit. Although it is clear that freedom of association for certain purposes is encompassed within the protection of the First Amendment, NAACP v. Alabama, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958); Angola v. Civiletti, 666 F.2d 1 (2nd Cir.1981), and "policemen, like teachers and lawyers, are not relegated to a watered-down version of constitutional rights", Garrity v. New Jersey, 385 U.S. 493, 500, 87 S.Ct. 616, 620, 17 L.Ed.2d 562 (1967); a State has a permissible interest in regulating certain First Amendment rights of police officers. Gasparinetti v. Kerr, 568 F.2d 311, 315 (3rd Cir.1977), cert. denied 436 U.S. 903, 98 S.Ct. 2232, 56 L.Ed.2d 401. Furthermore, a State has an even greater interest in regulating the conduct of police officers who are of necessity distinguished from ordinary citizens. (Kelley v. Johnson, 425 U.S. 238, 96 S.Ct. 1440, 47 L.Ed.2d 708); and in such instances conduct is carefully distinguished from oral and written expression, for purposes of determining whether the interests of the government outweigh the interests of the police officer in relation to the regulated or proscribed conduct or speech. See, discussion in Gasparinetti v. Kerr, supra, 568 F.2d at 314-317; Bowen v. Watkins, 669 F.2d 979, 982-986 (5th Cir. 1982); City and Borough of Sitka v. Swanner, 649 P.2d 940, 943-946 (Alaska 1982); Comment, Free Speech and Impermissible Motive in the Dismissal of Public Employees, 89 Yale L.J. 376, 379-383 (1979).

The Second Circuit, however, has recently stated that "courts have interpreted the right to freedom of speech much more expansively than they have the right to freedom of association, the latter right has been thought to be restricted to relationships having a predominately political focus", Angola v. Civiletti, supra, 666 F.2d at 3; see also, Mummau v. Rancke, 687 F.2d 9 (3rd Cir.1982); Slevin v. City of New York, 551 F.Supp. 917, 927 (S.D.N.Y.1982). This Court has not found any authority extending the First Amendment freedom of association to extra-marital affairs or social relationships as present in the case before this Court. (See discussion in Karst, The Freedom of Intimate Association, 89 Yale L.J. 624, 673-676 (1980); Bumpus v. Clark, 681 F.2d 679-685 (9th Cir.1982); International Society for Krishna Consciousness of Houston, Inc. v. City of Houston, Inc., 689 F.2d 541, 556 (5th Cir.1982). Nor does it appear in the present case that any other recognized associational activities have been infringed, such as union activities, Robinson v. State of New Jersey, 547 F.Supp. 1297 (D.J.J.1982), or association in conjunction with other firmly recognized civil rights, as in a situation with the promotion of controversial beliefs or ideas, see, Runyon v. McCrary, 427 U.S. 160, 175, 96 S.Ct. 2586, 2596, 49 L.Ed.2d 415 (1976). While certain associational interests, under appropriate circumstances, are entitled to constitutional protection, that protection is not extended to the extramarital association in this case.

Contrary to plaintiff's claim, the implementing orders prescribing plaintiff's conduct are not overbroad on their face nor, as applied to him, are they substantially vague. Overbreadth and vagueness of regulations involve matters of degree in relation to the context in which they are applied. Broadrick v. Oklahoma, 413 U.S. 601, 615-16, 93 S.Ct. 2908, 2917, 37 L.Ed.2d 830 (1973). Municipalities are by necessity given broad leeway in regulating the on-duty and off-duty conduct of its police officers, as in this case. Vorbeck v. Schnicker, 660 F.2d 1260, 1262 (8th Cir.1981), cert. denied, 455 U.S. 921, 102 S.Ct. 1278, 71 L.Ed.2d 462. Furthermore, the orders in question were specific and fully appreciated by plaintiff. Allen v. City of Greensboro, 452 F.2d 489 (4th Cir.1971).

Plaintiff's third argument that the orders in question are unconstitutional in violation of his right of privacy is also without merit. An individual's right of privacy is now recognized as firmly embedded in the Fourteenth Amendment. Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965); Whalen v. Roe, 429 U.S. 589, 97 S.Ct. 869, 51 L.Ed.2d 64 (1977). The parameters of the right of privacy however are not clearly defined, but this right has evolved to protect "two different kinds of interests ... One is the individual interest in avoiding disclosure of personal matters, and another is the interest in independence in making certain kinds of important decisions." Whalen v. Roe, supra, 429 U.S. at 598-600, 97 S.Ct. at 876.

The present case does not involve a situation involving involuntary disclosure of confidential matters in violation of plainti...