Chastain v. Civil Service Bd. of Orlando, 74--1387

• Decision Date: 20 February 1976
• Docket Number: No. 74--1387,74--1387
• Parties: Dwight CHASTAIN, Appellant, v. CIVIL SERVICE BOARD OF ORLANDO et al., Appellees.
• Court: Florida District Court of Appeals

Page 230

327 So.2d 230

Dwight CHASTAIN, Appellant, v. CIVIL SERVICE BOARD OF ORLANDO et al., Appellees.

No. 74--1387.

District Court of Appeal of Florida, Fourth District.

Feb. 20, 1976.

Rehearing Denied March 15, 1976.

Certification Denied March 15, 1976.

E. Thom Rumberger and J. Richard Caldwell, Jr., of Pitts Eubanks Ross & Rumberger, Orlando, for appellant.

Egerton K. van den Berg, City Atty., and Gretchen R. H. Vose, Asst. City Atty., Orlando, for appellees.

OWEN, Judge.

Appellant was dismissed from the Orlando Police Department for alleged violations of the department's regulations and the Civil Service Code. Following a hearing, the Civil Service Board of Orlando found against appellant on each of the charges and upheld his dismissal. This ruling was attacked by petition for writ of certiorari filed in the circuit court. The present appeal is from the order denying that petition.

Two of the four charges against appellant alleged facts which the department asserted to be a violation of § 200--1 of the Orlando Police Department Regulations, which provided as follows:

'Standards of Conduct'

'Members and employees shall not engage in any conduct which constitutes neglect of duty, conduct unbecoming an officer, or any act which is likely to adversely affect the discipline, good order or reputation of the department.'

Appellant contends that this regulation is unconstitutionally void for vagueness under the standard enunciated in Connally v. General Const. Co., 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322 (1926) in that it '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 . . ..' A somewhat similar police department regulation prohibiting 'conduct unbecoming a member and detrimental to the service' was held to be unconstitutionally vague in Bence v. Breier, 357 F.Supp. 231 (E.D.Wis.1973) affirmed in Bence v Breier, 501 F.2d 1185 (7th Cir. 1974), cert. den. 419 U.S. 1121, 95 S.Ct. 804, 42 L.Ed.2d 821 (1975), the latter decision carefully distinguishing between the constitutional standards of vagueness applicable to a civilian police department regulation and the regulations involved in Parker v. Levy, 417 U.S. 733, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974) (involving military personnel) and Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974) (involving a certain classification of employee in government service). Academically, the decision in Bence v. Breier, 501 F.2d 1185 (7th Cir. 1974) is persuasive on the issue presented. However, it is unnecessary for us to determine the constitutionality of this regulation of the Orlando Police Department in disposing of this case since we conclude that appellant's dismissal was properly upheld on the basis of a charge involving a violation of a regulation other than § 200--1.

On the basis of certain specified facts showing that appellant had shot and wounded an escaping prisoner, appellant was also charged with violating § 800--5 of the Orlando Police Department Regulations, which provided as follows:

'Deadly Force'

'Members of the department shall at all times exhaust every other reasonable means of apprehension before resorting to the use of deadly force. The use of deadly force shall be in accordance with current department directives.'

The current department directives referred to in § 800--5 were embodied in General Order No. 73--5 which provided, In pertinent part:

'IV. LIMITATIONS ON USE OF THE FIREARM

A. A member of the department will discharge any departmental firearm under the following circumstances only:

5. To effect an arrest, to prevent flight or escape, or to recapture a felony suspect whom he reasonably believes to have committed a crime, with the following qualifications:

a. The crime for which the arrest is sought must be an infamous crime where the use of deadly force by the perpetrator would be an ordinary consideration under the circumstances.

(1) For purposes of this directive, infamous crimes shall be murder, rape, robbery, burglary, arson, kidnapping or any other felony which involves the use or threatened use of deadly force against the individual.

b. The felony suspect believed to have committed the crime has not been identified and there is reason to believe identification cannot be made at a later date if the felon escapes.

c. A member would not ordinarily be justified in employing deadly force for such crimes as forgery, frauds, counterfeiting, embezzlement or any other crime the commission of which does not involve deadly force against an individual.'

This charge (involving the shooting of the escaping prisoner) alleged facts to support the allegation that 'the prisoner was not involved in a crime of violence or any crime which would justify the use of deadly force,' and also alleged the conclusion that appellant 'did not exhaust every other reasonable...