Hughes v. Frank, 75 C 1983.

• Decision Date: 02 June 1976
• Docket Number: No. 75 C 1983.,75 C 1983.
• Citation: 414 F. Supp. 468
• Parties: Thomas HUGHES, Plaintiff, v. Louis J. FRANK, Commissioner of Police of the Nassau County Police Department, and the Nassau County Police Department, Defendants.
• Court: U.S. District Court — Eastern District of New York

414 F. Supp. 468

Thomas HUGHES, Plaintiff, v. Louis J. FRANK, Commissioner of Police of the Nassau County Police Department, and the Nassau County Police Department, Defendants.

No. 75 C 1983.

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

June 2, 1976.

Hartman & Alpert by Allen R. Morganstern, Mineola, N. Y., for plaintiff.

James M. Catterson, Jr., County Atty., Nassau County, by James N. Gallagher, Deputy County Atty., Mineola, N. Y., for defendants.

MEMORANDUM AND ORDER

NEAHER, District Judge.

Plaintiff Thomas Hughes, a police officer employed by the Nassau County Police Department, brought this action under the Civil Rights Act, 42 U.S.C. § 1981, et seq., and Section 9 of the Military Selective Service Act of 1967, 50 U.S.C. App. § 459, seeking a declaration that Article VI, Rule 15 of the Rules and Regulations of the Nassau County Police Department ("Rule 15") is unconstitutional. He claims that Rule 15 denies him the equal protection of the laws by arbitrarily barring him from membership in a federal military reserve organization. Defendants have moved to dismiss the complaint for lack of subject matter jurisdiction and failure to state a claim upon which relief may be granted. F.R.Civ.P. 12(b)(1) and (6).

The complaint alleges that prior to his police employment, plaintiff completed a four-year tour of active duty with the United States Navy, received an honorable discharge and satisfactorily fulfilled a period of time in the inactive reserves. He now desires to join an authorized Naval Reserve Unit and has requested defendants' approval to affiliate. His request has been refused based on defendants' interpretation of Rule 15, which provides:

A member of the Force or Department is prohibited from affiliating with any organization or body, the constitution or regulations of which would in any way exact prior consideration, and prevent him from performing his departmental duties; and he shall immediately advise the Commissioner of Police of any change in his classification in relation to Selective Service, or status concerning his membership in any Federal or State military organization or reserve program.

Plaintiff further alleges defendants advised him, at the time of his request, that their policy under the Rule was to limit the number of police officers in the reserves to 100, that the quota already had been met, and that plaintiff would have to wait his turn. No allegation has been made that defendants' refusal of permission was activated by any personal or class-based discriminatory animus.

The Police Commissioner's affidavit in support of the motion to dismiss states that the purpose of Rule 15 is to secure the performance of the police force's primary obligation, service to the citizens of Nassau County. The Police Commissioner avers that the County incurs a substantial loss of services as a result of the time each reservist spends on reserve duty. A reservist is entitled to military leave, with pay, for up to 30 days each year. Even with the present quota of 100, it is calculated, Nassau County loses 3,000 man days of police services per year, equivalent to a reduction of the force by 15 men, at a yearly cost of $400,000. Defendants also emphasize the County's tight fiscal situation by pointing out that a hiring freeze currently is in effect and no temporary officers can be hired to fill the gap.

Plaintiff challenges these economic considerations asserting that the present loss in manpower is statistically insignificant when compared with the total police personnel, over 3,800 officers. Plaintiff also contrasts other known losses in police manpower not so circumscribed, e. g., days off for donating blood, not using sick leave and receiving meritorious commendations, and concludes that no rational basis for the Rule has been shown.

The controlling question here, however, is not whether the police department can afford to let plaintiff join the Naval Reserve but whether it is constitutionally obliged to do so. The answer to that question turns upon whether Rule 15 amounts to an arbitrary restriction upon a fundamental right of plaintiff as a public employee, see Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1968), or has a rational relation to a valid State objective, see McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1960).

Rule 15 is not free from ambiguity on its face with respect to a prohibition on "membership in any Federal or State military organization or reserve program," especially in view of the acknowledged permissible quota of officers who may participate in such a program. Nor does the Rule expressly confer the quota power exercised. There is no dispute, however, that defendants interpret the Rule to mean, first, that before a police officer may join a military reserve unit, he must obtain the permission of the police commissioner. An officer's affiliation without such approval could result in charges being brought against him...