Reeder v. Kansas City Bd. of Police Com'rs, 85-1893

• Decision Date: 28 August 1986
• Docket Number: No. 85-1893,85-1893
• Citation: 796 F.2d 1050
• Parties: Mark REEDER, Appellee, v. KANSAS CITY BOARD OF POLICE COMMISSIONERS; Larry L. Joiner; Arthur D. Brookfield, III; John L. Williams; Beverly Parks Barker; Richard L. Berkeley; and William Birt, Appellants.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1050

796 F.2d 1050

Mark REEDER, Appellee, v. KANSAS CITY BOARD OF POLICE COMMISSIONERS; Larry L. Joiner Arthur D. Brookfield, III; John L. Williams Beverly Parks Barker; Richard L Berkeley; and William Birt, Appellants.

No. 85-1893.

United States Court of Appeals Eighth Circuit.

Submitted April 14, 1986.

Decided July 21, 1986.

Rehearing and Rehearing En Banc Denied Aug. 28, 1986.

J. Emmett Logan, Kansas City, Mo., for appellants.

Michael W. Manners, Independence, Mo., for appellee.

Before ROSS, Circuit Judge, HENLEY, Senior Circuit Judge, and ARNOLD, Circuit Judge.

ARNOLD, Circuit Judge.

This case is a challenge, under the Equal Protection Clause of the Fourteenth Amendment, to a Missouri statute which prohibits members of the Kansas City Police Force from participating in or contributing money to political causes and campaigns. No such drastic prohibition on political activity applies to police in other Missouri cities. In an earlier appeal to this Court, Reeder v. Kansas City Board of Police Commissioners, 733 F.2d 543 (8th Cir.1984), we rejected arguments that this statute violated the First Amendment and that it attempted to regulate in a field preempted by the 1974 amendments to the Federal Election Campaign Act. We remanded to the District Court for more complete development of the equal protection issue. That Court held that since the statute restricted a fundamental right it must be subjected to strict scrutiny. The trial court then determined that, because the statute was deliberately underinclusive, and the state had not established a compelling reason for the geographical discrimination, the statute violated the Equal Protection Clause. We reverse, finding that under the precedents of the Supreme Court a statute which discriminates between the political subdivisions of a state does not offend the Equal Protection Clause. That clause protects people, not places. So long as the statute treats the same all persons who are similarly situated, i.e., those who are within its jurisdictional reach, regardless of the fact that other statutes apply to other parts of the state, there is no ground for a challenge under the Equal Protection Clause. We therefore need not analyze the statute under the strict scrutiny standard which would otherwise apply when a regulation touches the exercise of fundamental rights. Indeed, under the controlling precedents, this kind of geographical distinction is simply not subject to traditional equal-protection analysis.

I.

Plaintiff Mark Reeder has been employed by the Kansas City Police Department since 1972, at first as a patrolman, and since 1980 as a sergeant. In the summer of 1982, he made a $500 contribution to the campaign of a candidate for the United States Congress. In doing so, he ran afoul of R.S.Mo. Sec. 84.830. That statute is part of a comprehensive regulatory scheme directed exclusively towards the Kansas City Police Department. ¹ It forbids employees and officers of the department to engage in almost any kind of political behavior other than voting. ² Contributions to candidates or parties are expressly forbidden. The penalty for violation of this provision is summary discharge from employment. The statute also bars violators from re-employment with the department for a period of five years and provides for criminal penalties for willful or culpably negligent violation.

No other police departments in Missouri are subject to similar political restrictions. While the St. Louis department is governed by a comprehensive legislative scheme and operates under the direction of a Board of Commissioners appointed by the Governor, as does the Kansas City department (both departments are actually creatures of the state government, wholly independent of the cities which they serve), the St. Louis provisions in the statutes do not include a political-activity ban. (Rules of the St. Louis department do restrict such activities substantially, but they are not so strict as the Kansas City statute, and they do not forbid contributions.) Similarly, the statutes governing police forces in first-class cities (which were repealed in 1983, see R.S.Mo. Secs. 85.010-.290 (1969)), while vesting control of such forces in a board appointed by the Governor, did not regulate political activity of police personnel. The uniquely strict aspects of the Kansas City police statute derive from efforts to curb serious political corruption of the police department in earlier times when the department was under local control.

II.

Mr. Reeder does not dispute that the state has an interest in preventing political corruption of police forces, the apparent purpose of this statute. His argument, with which the District Court substantially agreed, is simply this: when the state sets out to regulate the private political conduct of a public employee, that conduct enjoys to some degree the protection of the First Amendment, and the state must regulate with an even hand. If the state chooses to restrict the political expression of persons in one locality but not in another, then it is not, according to this view, treating similarly those who are similarly situated. In order to regulate in such an uneven way, the state must show compelling justification.

The problem with Mr. Reeder's argument is that the Supreme Court has long held that when the state chooses to regulate differentially, with the laws falling unequally on different geographic areas of the state, the Equal Protection Clause is not violated so long as there is no underlying discrimination against particular persons or groups. The Equal Protection Clause protects people, not places. McGowan v. Maryland, 366 U.S. 420, 427, 81 S.Ct. 1101, 1105-06, 6 L.Ed.2d 393 (1961). So long as all persons within the jurisdictional reach of the statute are equally affected by the law, it matters not that those outside the territorial reach of the law are free to behave differently.

The earliest expression of this principle was in Missouri v. Lewis, 101 U.S. (11 Otto) 22, 25 L.Ed. 989 (1879). There, the appellant complained of the State of Missouri's dual system of appellate courts, whereby litigants in St. Louis and surrounding counties were limited to an appeal to the St. Louis Court of Appeals in certain classes of cases, while citizens in other areas of the state had an appeal of right to the Missouri Supreme Court. The Supreme Court held that there was no offense to the Equal Protection Clause if the state chose to establish different systems of justice for different parts of the state. "[The Clause] contemplates persons and classes of persons. It has not respect to local and municipal regulations that do not injuriously affect or discriminate between persons or classes of persons within the places or municipalities for which such regulations are made." Id., at 30. The Court noted that in that case there was no allegation that the statute "might be intended as, or might have the effect of, a discrimination against a particular race or class, where such race or class should happen to be the principal occupants of the disfavored district." Id. at 32. The Court suggested that if that were the case, then the Equal Protection Clause would be implicated, not by the territorial distinction, but by the underlying race or class distinction.

Similarly, in Hayes v. Missouri, 120 U.S. 68, 7 S.Ct. 350, 30 L.Ed. 578 (1887), the Supreme Court upheld a Missouri statute which allowed prosecutors in capital cases to exercise fifteen peremptory challenges in cities of over 100,000 population, but to have only eight challenges in smaller towns. The Court noted that the state had a reasonable basis for the distinction and that in any event the law treated alike persons who were situated alike. Id., 120 U.S. at 72, 7 S.Ct. at 352. And in Chappell Chemical & Fertilizer Co. v. Sulphur Mines Co., 172 U.S. 474, 19 S.Ct. 268, 43 L.Ed. 520 (1899), the Court approved a Maryland statute which authorized trial by jury in all areas of the state except in the City of Baltimore.

But these are old cases. It could be argued that the principle which they express has become vitiated through disuse if there had been no subsequent cases on the point. However, the Court again faced the question of geographic discrimination in Salsburg v. Maryland, 346 U.S. 545, 74 S.Ct. 280, 98 L.Ed. 281 (1954). In Salsburg, a statute allowed the admission of illegally seized evidence in misdemeanor prosecutions in some counties but required its exclusion in others. The Court reiterated the Lewis rule that territorial discrimination alone does not violate the Equal Protection Clause, and added a further rationale for the rule. It said that the state could just as easily have granted home rule to each county and left it to the counties to decide on their separate rules of evidence, and that for the state legislature to enact local legislation, having in mind the needs and desires of the localities, was a matter of discretion for the lawmakers. Id. at 552-53, 74 S.Ct. at 284-85.

Salsburg was an illegal-search case decided in the years before the Fourth Amendment exclusionary rule was extended to state prosecutions. See Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). There was no underlying federally enforceable right in that case. (The same may be said of the older Supreme Court cases just discussed.) The only ground for challenge was unequal application of state laws. In the present dispute, there is an underlying federal right, i.e., the right to participate in politics. That right is a fundamental one, see Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976) (per curiam), though, as we have already held in this case, it is not absolute. Sgt. Reeder suggests that where a fundamental right is involved, the Supreme Court would not follow the precedents of Lewis and Salsburg. However, this argument must contend with McGowan v. Maryland, 366 U.S. 420, 81...