Berger v. Battaglia

• Decision Date: 20 December 1985
• Docket Number: No. 84-1440,84-1440
• Citation: 779 F.2d 992
• Parties: 39 Fair Empl.Prac.Cas. 1017, 39 Empl. Prac. Dec. P 35,870, 54 USLW 2346 Robert M. BERGER, Appellant, and Ray Franklin Barhight, Jr., Plaintiff, v. Frank J. BATTAGLIA, Individually and as Police Commissioner, City of Baltimore and Baltimore City Police Department, Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 992

779 F.2d 992

39 Fair Empl.Prac.Cas. 1017,

39 Empl. Prac. Dec. P 35,870, 54 USLW 2346

Robert M. BERGER, Appellant and Ray Franklin Barhight, Jr., Plaintiff, v. Frank J. BATTAGLIA, Individually and as Police Commissioner City of Baltimore and Baltimore City Police Department, Appellees.

No. 84-1440.

United States Court of Appeals Fourth Circuit.

Argued Jan. 9, 1985.

Decided Dec. 20, 1985.

Barbara Mello, American Civil Liberties Union of Maryland, Baltimore, Md., for appellant.

Justin J. King (Benjamin L. Brown, City Sol., Ambrose T. Hartman, Deputy Sol., Millard S. Rubenstein, Asst. Sol., Baltimore, Md., for appellees.

Before WINTER, Chief Judge, and PHILLIPS and MURNAGHAN, Circuit Judges.

JAMES DICKSON PHILLIPS, Circuit Judge:

The issue is whether, consistently with the first amendment, the Baltimore Police Department could condition the continued employment of one of its police officers upon his cessation of off-duty public entertainment performances in blackface that members of Baltimore's black community found offensive. In this action by the police officer against the Department under 42 U.S.C. Sec. 1983, the district court, applying the balancing test prescribed in Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968), as elaborated in Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983), denied the claim, striking the constitutional balance in favor of the Department. Because, applying the same test, we strike the balance differently, we reverse and remand for further proceedings.

I

The essential facts, as agreed to by the parties on appeal, and as basically reflected in the district court's findings of fact, are as follows.

Before the events here in issue resulted in this lawsuit, plaintiff Robert M. Berger had been an officer in the Baltimore Police Department since December 1972. During much of his tenure with the Department he had also performed music during his off-duty hours, first at Old Shantytown, a tavern owned by his brother in the Highlandtown section of Baltimore, and later at other bars, clubs and taverns, mostly in the Baltimore area. His musical performance, in which he sings and plays various instruments, is built primarily around popular music of the first half of the twentieth century--music in which he has been interested since childhood, when his family and neighbors gathered at his parents' house for weekly sing-alongs. For the past several years the most prominent feature of Berger's act had been an impersonation of the late singer Al Jolson, which he performed in blackface makeup and a black wig after the manner of the originator. He typically performed to family audiences numbering between 100 to 200 people.

In none of his performances did Berger identify himself as a police officer; offer any comment on Department policies or operations; make any reference to any other member of the Department; nor claim to be speaking for or in any way representing the Department. Although various media, in commenting on or describing his performance, referred to him as "the singing cop," that designation was, so far as the record reveals, theirs, not Berger's.

In his performances Berger's only purpose was to provide entertainment for willing listeners. He urged no conduct, incited no activity, made no derogatory or inflammatory remarks, advocated no lawlessness and sought no confrontation.

From at least 1979 Berger's superiors within the Police Department were aware of his musical activities, including the Al Jolson impersonation. On several occasions Deputy Commissioner William F. Rochford had introduced him to visitors as "the Department's Al Jolson." A member of the command staff (defined as officers of the rank of captain and above)--one Colonel Avara--made a practice of asking him to sing "Mammy" when he encountered him on the street, in full uniform. Numerous members of the command staff, including the deputy commissioner, had seen him perform in clubs and taverns. Prior to 1982, no member of the Department had complained to him about the content of his act or suggested that he not perform it in blackface.

During this period, police department regulations permitted officers to engage in secondary employment in their off-duty hours, provided they obtained specific permission in advance. In December 1981 Berger was disciplined for having performed for pay without having sought or received the necessary permission. From that time until February 1982 he had continued to perform, but had received no money.

Early in 1982 Berger entered into an agreement with the management of the Baltimore Hilton Hotel to perform his act, including the Al Jolson imitation, in the B-100 Lounge, a nightclub located on the ground floor of the hotel. By the terms of the agreement Berger and a band which he was to provide were to be given a two-week tryout for three nights per week, beginning February 7, 1982. If that tryout were successful, the engagement was to be extended an additional 10 weeks. Because of his earlier violation of Department regulations respecting off-duty employment, Berger was not to receive money for his performance, although the members of the band were to be paid.

Prior to the scheduled opening date, the hotel advertised Berger's performance in the Baltimore newspapers. The advertisements were illustrated by a photograph of Berger in his blackface makeup. They did not identify him as a police officer.

The sight of these advertisements offended many black citizens of Baltimore, especially members of the National Association for the Advancement of Colored People (N.A.A.C.P.), some of whose members resolved to express their disapproval of a white entertainer's appearing in blackface and, if possible, to prevent the performance from going on. One of these was Dr. Emmett C. Burns, regional director of the N.A.A.C.P. for the geographic area which includes Baltimore and the State of Maryland. At this time, Dr. Burns did not know that Berger was a city police officer. Burns' objection at this time was based simply upon the fact that, as he testified, he and others whom he represents considered any appearance by a white in blackface makeup to be "absolutely horrendous--a throwback to the days of the minstrels, when blacks were portrayed as clowns, simpletons, buffoons, apes and other animals of the lower kingdom." In this, as he also testified, he made no exception for portrayals of black persons by white persons in art forms such as Othello.

On February 7, 1982, when Berger arrived at the Hilton, he was met by two men, Dr. Wallace Gatewood and Adam Van Landingham, who introduced themselves as representatives of the N.A.A.C.P. and demanded that he not perform his Jolson imitation because it was insulting to blacks. After discussion with these two, Berger agreed to do his entire show, including the Jolson portion, without makeup in order to demonstrate the lack of racial content in the act. Following the performance he received a standing ovation from the entire audience of some 150 people, including Gatewood and Van Landingham. Both of these two expressed approval of plaintiff's act, and Van Landingham, a part-time talent agent, gave him a business card and suggested that Berger call him to discuss possible future bookings.

On February 8 Berger performed in blackface without incident, again receiving a standing ovation from a packed house. Gatewood and Van Landingham, however, had by now reversed their stand of the previous evening and objected to the act's being done in blackface.

On February 9 Dr. Burns and approximately 30 persons associated with the N.A.A.C.P. set up a picket line outside the Hilton to protest the continuation of the engagement. They were joined by Bobby Cheeks and eight members of the Baltimore Welfare Rights Organization, of which Cheeks was executive director. The pickets marched in a circle on the sidewalk, carrying placards stating their objections to the show.

As the time for Berger's performance drew near, some of the pickets or demonstrators entered the hotel and the nightclub itself, with the intention of preventing the performance. In keeping with the policy of the N.A.A.C.P., it was not then the intention of Dr. Burns and his group to resort to violence or other unlawful activity to achieve their goal. On the other hand, Mr. Cheeks and his followers were then prepared, according to Cheeks' testimony, to go onto the stage and stop the show, by physical force if necessary.

Whatever the actual intentions of these two groups, Sgt. William D. Lawson of the Department's Community Relations Section, who was on duty at the Hilton that evening, had heard numerous rumors to the effect that blacks in the audience intended to storm the stage to prevent the show from going on, and that certain whites who wished to see the performance were prepared in that event to counter-attack. Although he never heard anyone directly threaten anyone else, Sgt. Lawson feared possible violence if these rumors materialized into fact. He therefore requested additional police assistance. In response to his request, some two dozen officers from the Tactical Squad and the Central District, plus wagons, were dispatched to the Hilton, under orders to remain on standby, out of sight and away from the Fayette Street (main) entrance to the Hotel unless they were needed for crowd control.

This redeployment of forces left eight posts in the city's Central District unmanned (but covered by personnel from adjacent manned posts, which "doubled up" their coverage) for approximately two hours. The police manpower available on the scene was, however, more than adequate to deal with any situation that might develop. Lawson's and the Department's primary concern on February 9 was that if the demonstrators were unsuccessful in stopping the performance on that evening, their numbers would increase geometrically on the evenings of...