Hershinow v. Bonamarte

• Decision Date: 18 May 1984
• Docket Number: Nos. 83-2470,83-3165,s. 83-2470
• Citation: 735 F.2d 264
• Parties: Lester HERSHINOW, Plaintiff-Appellant, v. M.F. BONAMARTE, Jr., Chief of Police of the City of Highland Park, Illinois, and Larry Rice, City Manager of the City of Highland Park, Illinois, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 264

735 F.2d 264

Lester HERSHINOW, Plaintiff-Appellant, v. M.F. BONAMARTE, Jr., Chief of Police of the City of Highland Park, Illinois, and Larry Rice, City Manager of the City of Highland Park, Illinois Defendants-Appellees.

Nos. 83-2470, 83-3165.

United States Court of Appeals Seventh Circuit.

Argued April 24, 1984.

Decided May 18, 1984.

Stanley M. Jakala, Berwyn, Ill., for plaintiff-appellant.

Jack M. Siegel, Jack M. Siegel & Assoc., Chicago, Ill., for defendants-appellees.

Before BAUER, WOOD, and POSNER, Circuit Judges.

POSNER, Circuit Judge.

The plaintiff, a police officer in Highland Park, Illinois, sued the police chief and city manager under 42 U.S.C. Sec. 1983, complaining that his three-day suspension without pay violated his rights under the Fourteenth Amendment. The district court dismissed the complaint on the defendants' motion for summary judgment, and the plaintiff has appealed (No. 83-2470).

The plaintiff stopped Debbie Oggoian for speeding, and while he was writing out her ticket she said to him, "Jewish ladies should be receiving tickets for holding up traffic while dropping their kids off," and, "All they have in this town are Jewish bitches." The plaintiff said, "I wish you wouldn't say any more; I happen to be Jewish." According to him, she replied: "I will get your Jewish wife." He told her he was arresting her for threatening his wife, and then either pulled her or helped her out of the car. But she told him she hadn't meant to threaten his wife, and he released her and she went on her way. She complained about the incident to the police department, which suspended the plaintiff for three days without pay for unprofessional conduct in allowing his personal feelings to influence his behavior toward a citizen.

With the merits of Officer Hershinow's dispute with Miss Oggoian we have, of course, nothing to do; nor is it our business whether the sanction meted out by the police department was appropriate. The only question for us is whether the defendants violated Hershinow's constitutional rights. The main argument he makes is that the suspension deprived him of his liberty of occupation, a part of the liberty protected by the due process clause of the Fourteenth Amendment, by stigmatizing him as unprofessional. But this argument misconceives the nature of that liberty, as interpreted in Codd v. Velger, 429 U.S. 624, 97 S.Ct. 882, 51 L.Ed.2d 92 (1977) (per curiam), and the other cases that the plaintiff relies on. Those are cases where, as we explained recently in Lawson v. Sheriff of Tippecanoe County, 725 F.2d 1136 (7th Cir.1984), a public employee was fired for publicly announced reasons that so impugned his moral character as to make it unlikely that he could obtain an equivalent job with some other employer. Such cases have no application where the employee is not fired. Hershinow cannot complain that he has been made unemployable; he remains employed, and in a job that has considerable tenure rights attached to it. See Thomas v. Police Bd., 90 Ill.App.3d 1101, 1105, 46 Ill.Dec. 289, 292-293, 414 N.E.2d 11, 14-15 (1980); Christenson v. Board of Fire & Police Comm'rs, 83 Ill.App.3d 472, 476, 38 Ill.Dec. 915, 917, 404 N.E.2d 339, 341 (1980). This already puts him ahead of most American workers, who are employees at will. It is true, as he argues, that a police officer who is suspended, however briefly, on the ground of unprofessional conduct has a black mark against him that may impede his advancement and reduce his chances of finding a good job elsewhere. But if that were a basis for claiming damages for a deprivation of liberty, every reprimand that became part of a public employee's file would be a potential basis for a section 1983 case, and the federal courts would become the grievance machinery for public-sector employees.

Hershinow also argues that the suspension was a punishment for the free exercise of his religion and therefore infringed his rights under the First Amendment. There is no suggestion that if Miss Oggoian's abusive remarks had concerned some other, nonreligious group to which Hershinow might belong--redheads, for example, or people with flat feet or pot bellies--and he had reacted as he did, the police department would not have disciplined him with equal severity. So he cannot complain that he is a victim of discrimination on account of his religion. There are, it is true, cases which hold that even when a regulation is secular in its purpose and principal effects, and is enforced evenhandedly against religious and nonreligious people alike, the religious may be able to claim exemption from it by virtue of the First Amendment. See, e.g., Sherbert v. Verner, 374 U.S. 398, 83 S.Ct....