Michini v. Rizzo, Civ. A. No. 73-1995.
| Decision Date | 09 July 1974 |
| Docket Number | Civ. A. No. 73-1995. |
| Citation | 379 F. Supp. 837 |
| Parties | William M. MICHINI and Anthony J. Barbera, Jr. v. Joseph R. RIZZO et al. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
COPYRIGHT MATERIAL OMITTED
Richard Z. Freemann, Jr., Michael Lehr, Philadelphia, Pa., for plaintiffs.
John Mattioni, James M. Penny, Jr., Philadelphia, Pa., for defendants.
In Stull v. School Board of Western Beaver Jr.-Sr. H.S., 459 F.2d 339 (3d Cir. 1972), the Court of Appeals held that the right of an individual to control his personal appearance, including his hairstyle, was sufficiently substantial to be accorded the protection of the liberty assurance of the Due Process Clause of the Fourteenth Amendment. Stull involved a school dress code proscribing the wearing of hair covering the ears and below the collar line. However, the Stull court, following the lead of Gere v. Stanley, 453 F.2d 205 (3d Cir. 1971), another school dress code case, also held that the protected right was not absolute, and that it was necessary that the Court assess the reasonableness of the regulation in relation to its object and balance the right sought to be protected against the legitimate but countervailing interests of the community.1 That balancing test is central to decision of the case before us, which presents the question whether a municipal fire department can justify an infringement upon the constitutionally protected right of a fireman to control his own hairstyle and appearance. In the Stull and Gere cases, the justification asserted by the authorities was principally that of decorum and discipline in the ambience of the classroom and the schoolyard. In the present case the community interests asserted are those of safety, the integrity of the fire department as a "paramilitary" organization, and good grooming for public appearance's sake.2
The plaintiffs are two former Philadelphia firemen who were discharged for noncompliance with Directive 13 of the Philadelphia Fire Department (Department), a regulation which prescribes the length and neatness of hair at the front, back, and sides of the head. They have sued under the Civil Rights Act, 42 U.S.C. § 1983, seeking an injunction against enforcement of Directive 13 against them and a declaration that the regulation is unconstitutional on its face and as applied, together with reinstatement, back pay, and counsel fees. Named as defendants are Joseph R. Rizzo, the Philadelphia Fire Commissioner, Hillel S. Levinson, the City's Managing Director,3 and the City of Philadelphia.
Trial on the merits was consolidated with the hearing of the application for a preliminary injunction as authorized by F.R.Civ.P. 65(a)(2). The taking of testimony lasted five days, during which the court heard from the plaintiffs, several Department officials including defendant Rizzo himself, and expert witnesses offered by both sides. The expert testimony, as well as much of the lay testimony, focused on the potential safety hazard presented by the wearing of facial hair or long hair by firemen, with particular emphasis on the effect of facial hair and long hair upon the safe use of the Scott Air Pak self-contained breathing apparatus. In this Opinion we set forth and discuss our findings of fact and conclusions of law.
Prior to August 26, 1968, the Department had no written appearance regulations.4 On that date, Assistant Chief Ralph Kress issued a short memorandum to the divisional chiefs regarding personal appearance which was superseded by a series of written orders culminating in Directive 13.5 Directive 13 reads as follows:
SUBJECT: PERSONAL APPEARANCE
A. This directive is disseminated in order to ensure a neat personal appearance that does not interfere with nor detract from the safe and proper wearing of uniforms and equipment.
Attached to Directive 13 are six photographs, depicting front, side, and back views of a black and a white fireman with hairstyles which are incorporated by reference "as a guideline" and which depict the acceptable appearance of a fireman's hair.6 Commissioner Rizzo, Personnel Officer McNulty, and Capt. Kenney, the Department's safety officer, all agreed that Directive 13 is imprecise without reference to the photographs. The photographs clarify uncertain terms in the regulation: the photographs indicate what is not "overly long" (although the regulation is already specific as to hair height), what constitutes a "moderate" afro, and also how the hair at the back of the neck is to be trimmed in an even and tapered fashion (showing a space between the bottom of the hair and the collar line). While the photographs also clearly depict the appropriate trimming of the sideburns, we note that the directive is quite specific as to the acceptable length thereof — proscribing growth below the midpoint of the ear.
There was also testimony by defense witnesses that the photographs do not set the outer limit of hair length, and we so find. For instance, Deputy Chief Miller, who was present in court throughout the proceedings, had longer hair on top than the officers in the photographs, and most officers and representatives of the Department who testified agreed that the manner in which a fireman's hair was combed was a crucial consideration in deciding whether a fireman was in compliance with Directive 13. However, despite certain conflicting interpretations of the regulation,7 we also find that firemen whose hair was found to be in noncompliance with the regulation were informed of that fact repeatedly before disciplinary measures were taken, and were also given repeated opportunities to have their hair cut to bring it into compliance.
The evidence on the subject of the purpose of Directive 13 had several facets. There can be no doubt that Commissioner Rizzo believes that the Directive serves a useful purpose in engendering paramilitary discipline, and that he also believes that it fosters good grooming and that good grooming enhances public confidence in the Department. We find however that these were but secondary purposes of the Directive, and that the primary purpose of the Directive was to foster safety, particularly the safe use of the Scott Pak self-contained breathing apparatus and resuscitator and to prevent the ignition or snagging of hair on the back of the neck during firefighting operations. Consistent with this finding is the fact that the civilian employees of the Department are not subject to hair regulations. There are 81 male civilian employees within the Department who are not subject to any dress or hair code.
It is undisputed that both plaintiffs were at all times relevant hereto in substantial violation of the Directive in terms of the length of their hair on the sides and back, the length and style of their sideburns, the length of the hair on top of Michini's head, and the length of Michini's moustache. Both plaintiffs were dismissed solely because of the length of their hair (including Michini's moustache).8
During the course of their testimony, plaintiffs sought to invoke three constitutional bases for their claims: (1) the right to control their personal appearance recognized in Stull; (2) the principle of unconstitutional vagueness; and (3) First Amendment free speech protection. We recognize that the first two principles are issues in the case, but we must summarize the testimony of the plaintiffs which bears on the validity of the latter claim.
Michini testified that his hair expresses his own image of himself:
I identify with today's society. I had my hair long and I had my hair short. I know I am much happier, more productive and more virile man with a hair this style than when it was shorter.
Michini described himself as a "liberal identifying with today's ideals," and asserted that his hair expresses to others his opposition to what he describes as the "hard hat" or "1984 philosophy of restricting the freedom of spirit and choice." He testified that he has a God-given right to be who he is and who he thinks he can be, and that in order for him to find his God he must have an "image of himself that he can carry with him." He believes that if he is needlessly forced to change one of the parts of his being (i. e., his hair), all of him is changed and he is made to feel that he is answering to a god other than his God....
To continue reading
Request your trial
-
Aiello v. City of Wilmington, Del.
...93 S.Ct. 2908, 37 L.Ed.2d 830 (1973); Parker v. Levy, 417 U.S. 733, 754-57, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974); Michini v. Rizzo, 379 F.Supp. 837, 850-51 (E.D.Pa.1974), aff'd, 511 F.2d 1394 (3d Cir. 1975) (judgment order); Allen v. City of Greensboro, supra; Paulos v. Breier, 507 F.2d 138......
-
McClung v. Board of Ed. of City of Washington C. H.
...F.2d 188 (upholding regulation).3 See, e. g., Kamerling v. O'Hagan (C.A.2, 1975), 512 F.2d 443 (upholding regulation); Michini v. Rizzo (E.D.Pa.1974), 379 F.Supp. 837, affirmed, 511 F.2d 1394 (C.A.3, 1975) (upholding regulation).4 The First, Fourth, Seventh and Eighth Circuits have held tha......
-
Muscare v. Quinn
...the efficient use of gas masks. Though fundamentally a fact question, most courts have accepted this theory, see Michini v. Rizzo, 379 F.Supp. 837 (E.D.Pa.1974), aff'd, 511 F.2d 1394 (3d Cir., decided March 24, 1975); Hordorwich v. Bd. of Police and Fire Comm'rs, 18 Ill.App.3d 20, 309 N.E.2......
-
Smith v. Wickline
...asserted who must have had a full and fair opportunity to present his claim for the prior litigation to pose a bar. Michini v. Rizzo, 379 F.Supp. 837, 853-855 (E.D.Pa. 1974); Joseph v. House, 353 F.Supp. 367, 372 (E.D.Va., Richmond Div., 1973). It is ordered, That defendants' motion to dism......
-
Chief Judge Edward R. Becker: a truly remarkable judge.
...Id. at 1087. (24) Id. at 1092. (25) 952 F.2d 742 (3d Cir. 1991). (26) Id. at 743. (27) Id. (28) Id. at 750. (29) See Michini v. Rizzo, 379 F. Supp. 837 (E.D. Pa. 1974). (30) Id. at 848. APPENDIX ARTICLE 1 Article 1, Section 7 United States v. Gozlon-Peretz, 894 F.2d 1402 (3d Cir. 1990) Arti......