Dwen v. Barry

• Decision Date: 22 August 1973
• Docket Number: Docket 72-1037.,No. 862,862
• Citation: 483 F.2d 1126
• Parties: Thomas DWEN, as President of the Suffolk County Patrolmen's Benevolent Association and Thomas Dwen, Individually, Plaintiff-Appellant, v. John L. BARRY, Commissioner of the Suffolk County Police Department, Defendant-Respondent.
• Court: U.S. Court of Appeals — Second Circuit

483 F.2d 1126 (1973)

Thomas DWEN, as President of the Suffolk County Patrolmen's Benevolent Association and Thomas Dwen, Individually, Plaintiff-Appellant, v. John L. BARRY, Commissioner of the Suffolk County Police Department, Defendant-Respondent.

No. 862, Docket 72-1037.

United States Court of Appeals, Second Circuit.

Argued June 14, 1973.

Decided August 22, 1973.

Leonard Wexler, Smithtown, N.Y. (Richard T. Haefeli, Smithtown, N.Y., of counsel), for plaintiff-appellant.

Patrick A. Sweeney, Northport, N.Y. (George W. Percy, Suffolk County Atty., Riverhead, N.Y., of counsel), for defendant-respondent.

Before KAUFMAN, Chief Judge, SMITH, Circuit Judge, and BRYAN,^* District Judge.

J. JOSEPH SMITH, Circuit Judge:

This is an appeal from denial of preliminary injunction and summary dismissal by the United States District Court for the Eastern District of New York, Jacob Mishler, Chief Judge, 336 F.Supp. 487, of a civil rights action brought by Dwen, individually and as president of the Suffolk County Patrolmen's Benevolent Association, seeking to invalidate hair grooming regulations of the Suffolk County Police Department¹ as in violation of the patrolmen's rights under the First and Fourteenth Amendments. We conclude that summary dismissal based on the pleadings and an affidavit submitted by Deputy Commissioner Eugene Kelley was improper. Accordingly, we reverse and remand for trial.

The court correctly recognized that the regulation might well raise constitutional issues of the right to free expression, due process and equal protection if applied to other than uniformed personnel, but analogized the uniformed force to the military and sustained the regulations. A number of courts have upheld such regulations on similar grounds, terming police organizations as para-military or quasi-military requiring strict discipline and uniformity of appearance, see, e.g., Greenwald v. Frank, 40 A.D.2d 717, 337 N.Y.S.2d 225 (1972), aff'd without opinion, 32 N.Y. 2d 862, 346 N.Y.S.2d 529, 299 N.E.2d 895 (May 30, 1973). See also Stradley v. Anderson, 349 F.Supp. 1120 (D.Neb. 1972), aff'd 478 F.2d 188 (8th Cir., May 17, 1973); Doyle v. Kammeraad, 310 Mich. 233, 17 N.W.2d 165 (1943); Fraternal Order of Police v. Harris, 306 Mich. 68, 10 N.W.2d 310 (1943); People ex rel. Masterson v. French, 110 N.Y. 494, 499, 18 N.E. 133 (1888).

Central to each of the "para-military" cases is the singular position afforded the military, Orloff v. Willoughby, 345 U.S. 83, 73 S.Ct. 534, 97 L.Ed.2d 842 (1953); see Hagopian v. Knowlton, 470 F.2d 201, 204 (2d Cir. 1972), and the concept that those in the armed forces are deemed to surrender many important rights. "The armed services, their officers and their manner of discipline do serve an essential function in safeguarding the county. The need for discipline, with the attendant impairment of certain rights, is an important factor in fully discharging that duty." Raderman v. Kaine, 411 F.2d 1102, 1104 (2d Cir.), cert. dismissed, 396 U.S. 976, 90 S.Ct. 467, 24 L.Ed.2d 447 (1969).

Extension to the uniformed civilian services of the police and fire departments of the unique judicial deference accorded to the military, however, seems to us not warranted. While these services have been characterized as para-military organizations,² see Doyle v. Kammeraad, supra; Fraternal Order of Police v. Harris, supra; Greenwald v. Frank, supra; People ex rel. Masterson v. French, supra, the characterization is hardly justified either historically or functionally.

The civilian police force is a relatively recent development. It arose out of the need to supplement the private citizen's role in keeping the peace.³ Any "paramilitarism" of the force stems not from its origin nor from the nature of its duty but from the adoption of an organization with a centralized administration and a disciplined rank and file for efficient conduct of its affairs.⁴ The use of such organization evolved as a practical administrative solution and not out of any desire to create a military force.⁵See R. Fosdick, American Police Systems ch. 2 (1920); W. Lee, A History of Police in England (1901) (1971 ed.). The police force remains significantly different in character from the military. It is still locally controlled and organized, see N.Y. Unconsol. Laws § 5721, and subject to more direct control of the electorate, N.Y. Unconsol. Laws § 5722, Suffolk County Constitution art. XII § 1202(a), (b)(4), (b)(5) and § 1211. Appointment of members of the force is made under Civil Service Regulation. While police officials are given broad discretion in running a department, dismissal of patrolmen is subject to court review. N.Y. Village Law § 8-806 (McKinney N.Y. Unconsol. Laws § 5732); see People ex rel. Hart v. Board of Fire Commissioners, 82 N.Y. 358, 360-61 (1880).

Discipline although essential to an effective police force as it is to the military is clearly of a different type.⁶ Instant unquestioning obedience has been found essential to a soldier in action and his training and its attendant discipline is designed to develop such obedience. The same type of instant unquestioning obedience is not necessary for an effective police force. See Greenwald v. Frank, supra, 40 A.D.2d 717, 337 N.Y.S. 2d at 231-232 (Shapiro, J. dissenting); cf. Orloff v. Willoughby, supra, 394 U.S. at 94, 73 S.Ct. 534, 97 L.Ed.2d 842. Rather it has been suggested that the military model of organization and discipline must not be followed too closely as a policeman unlike a soldier frequently acts individually on his own initiative and not subject to the immediate supervision of his superiors. See W. Lee, A History of Police in England at 401-402.

This is not to say, however, that the special nature of the police officer's duties and the recognized need to maintain a singular degree of discipline are immaterial. These factors are relevant to the determination of the validity of the General Order bearing not on the nature of plaintiff's rights, but on the existence of a legitimate state interest to be reasonably advanced by the regulation.⁷ A policeman does not, however, waive his right to be free from arbitrary and unjustifiable infringement of his personal liberty when he elects to join the force.⁸See Garrity v. New Jersey, 385 U.S. 493, 499-500, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967); Muller v. Conlisk, 429 F.2d 901, 904 (7th Cir. 1970).

While it has been argued that hair length controversies are much ado about nothing, we think there is a substantial constitutional issue raised by regulation of the plaintiff's hair length. The question is whether the government may interfere with the physical integrity of the individual and require compliance with its standard of personal appearance without demonstrating some legitimate state interest reasonably requiring such restriction on the individual. The first, third, fourth, seventh and eighth circuits have held that the Constitution limits the state's right to regulate the personal appearance of its citizens.⁹ We agree. See Olff v. East Side Union High School District, 404 U. S. 1042, 92 S.Ct. 703, 30 L.Ed.2d 736 (Douglas, J., dissenting from denial of certiorari).

An increasing number of courts have recognized the right of the individual to style his own appearance, but there has been little consensus on the source of constitutional protection. The right has been found in the First Amendment, Arnold v. Carpenter, 459 F.2d 939 (7th Cir. 1972); the Ninth Amendment, Bishop v. Colaw, 450 F.2d 1069 (8th Cir. 1971); the Equal Protection Clause of the Fourteenth Amendment, Massie v. Henry, 455 F.2d 779 (4th Cir. 1972), and the due process guarantees of the Fifth and Fourteenth Amendments, Stull v. School Board of the Western Beaver Junior-Senior High School, 459 F.2d 339 (3rd Cir. 1972); Richards v. Thurston, 424 F.2d 1281 (1st Cir. 1970); Massie v. Henry, supra.

We may well base the right on the guarantee under the Due Process Clause of personal liberty of "a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints. . . ." Poe v. Ullman, 367 U.S. 497, 543, 81 S.Ct. 1752, 1777, 6 L. E.2d 989 (1961) (Harlan, J., dissenting). Cf. Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 726, 35 L.Ed.2d 147 (1973); Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952). Personal liberty is not composed simply and only of freedoms held to be fundamental but includes the freedom to make and act on less significant personal decisions without arbitrary government interference. Limitation of such a right requires some showing of public need.

We hold only that choice of personal appearance is an ingredient of an individual's personal liberty, and that any restriction on that right must be justified by a legitimate state interest reasonably related to the regulation. Here the department has failed to make the slightest showing of the relationship between its regulation and the legitimate interest it sought to promote. The sole presentation by the department was the affidavit submitted by Deputy Commissioner Kelley. That affidavit commented only that the regulation was directed at both uniformed and non-uniformed officers, it was silent on the question of the necessity for the regulation in maintaining discipline. In the absence of the requisite justification by the department, dismissal of the complaint under Rule 12(b) (6) was in error. Nor would summary judgment on the affidavit submitted be justified since a genuine issue was presented for trial. We imply no views on the merits. We indicate simply that, at trial the Commissioner has the burden of establishing a genuine public need for the regulation.

Reversed and remanded.

* Of the United States District Court for the Southern District of New York, sitting by designation.

1 ORDER NUMBER 71-1 AMENDING RULES AND PROCEDURES POLICE DEPARTMENT, COUNTY OF SUFFOLK, N.Y x GENERAL SPECIAL PERSONNEL...