Smith v. Fussenich

• Decision Date: 03 November 1977
• Docket Number: Civ. No. B-74-472.
• Citation: 440 F. Supp. 1077
• Court: U.S. District Court — District of Connecticut
• Parties: Kenneth W. SMITH et al., Plaintiffs, v. Cleveland B. FUSSENICH, Commissioner of State Police, et al., Defendants.

440 F. Supp. 1077

Kenneth W. SMITH et al., Plaintiffs, v. Cleveland B. FUSSENICH, Commissioner of State Police, et al., Defendants.

Civ. No. B-74-472.

United States District Court, D. Connecticut.

November 3, 1977.

Anne M. Hamilton, Fleischmann & Sherbacow, Hartford, Conn., Davis S. Branch, Fairfield County Legal Services, Inc., Bridgeport, Conn., Elizabeth B. DuBois, Eric D. Balber, Legal Action Center of City of New York, Inc., New York City, for plaintiffs.

Carl R. Ajello, Atty. Gen., Frank Rogers, Asst. Atty. Gen., Meriden, Conn., for defendants.

Before TIMBERS, Circuit Judge, ZAMPANO and NEWMAN, District Judges.

MEMORANDUM OF DECISION

ZAMPANO, District Judge:

This case, brought pursuant to the provisions of 42 U.S.C. § 1983, presents the issue of the constitutionality of § 29-156a(c) of the Connecticut General Statutes which bars felony offenders from employment with licensed private detective and security guard agencies.¹ The plaintiff and the class he represents² argue that the statute is invalid both on equal protection and on due process grounds, and that the State cannot deny licensure to a felon unless there is an individualized determination after a hearing of the felon's fitness for the position. The State, on the other hand, contends that its per se rule of exclusion rationally furthers its legitimate interests and that, in any event, the State Board of Pardons does provide a forum for felons to qualify for registration as security guards, watchmen, or private detectives. Jurisdiction of these issues is conferred by 28 U.S.C. §§ 1331, 1343(3) and (4), 2281, and 2284.³ Since the material facts are not in dispute, both parties move for summary judgment.

I

Under Connecticut law, Conn.Gen.Stat. § 29-153 et seq., all private investigators and security guards must be licensed by and registered with the Public Safety Section of the Department of State Police (hereinafter "Department"). Currently there are 147 private investigation and security guard agencies in Connecticut, with over 9,000 employees. Private detectives gather evidence in civil and criminal matters, make background checks in employment cases, and perform general investigative functions. The duties of security guards include patrolling and guarding stores, shopping malls, schools, commercial buildings and industrial sites. In crowd control situations they act as uniformed deterrents. Neither the private investigators nor the security guards possess arrest powers. They may carry firearms only if they are authorized to do so by a special permit procedure which applies to all private citizens.

Under the registration scheme, there is an automatic disqualification of any applicant who has been convicted of a felony. In 1974 alone, there were 103 rejections for registration by the Department of persons who had prior felony records. However, a misdemeanant or a person who has a history of alcoholism or drug abuse may be eligible for licensure if the Department deems the applicant fit under relevant criteria such as the nature and extent of the criminal behavior, progress made through rehabilitative treatment, and so forth. The record also discloses that licensure is not required by the Department with respect to numerous occupations in which services are rendered similar to those performed by private detectives and security guards. These include: (a) watchmen employed directly by retail establishments and factories, (b) security guards in buildings owned or leased by State or local governments; (c) investigators assigned to the Connecticut Department of Social Services; and (d) attorneys conducting civil or criminal investigations.

The named plaintiff in the instant case, Kenneth Smith, is a 26 year old white male who was accepted for employment by the Licensee Prudent Investigation Services of Bridgeport, Connecticut. When his application for a license as a security guard was rejected by the Department due to his felony conviction record, this action was instituted.⁴

II

The main issue before the Court is plaintiff's contention that the statute in question is violative of his rights under the Equal Protection Clause of the Fourteenth Amendment.⁵ In applying equal protection analysis, strict scrutiny of a legislative classification is required only when the statute operates to the particular disadvantage of a suspect class, e. g., Graham v. Richardson, 403 U.S. 365, 91 S.Ct. 1848, 29 L.Ed.2d 534 (1971) (alienage); Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967) (race); Oyama v. California, 332 U.S. 633, 68 S.Ct. 269, 92 L.Ed.2d 249 (1948) (national origin), or when it impermissibly interferes with the exercise of a fundamental right, e. g., Kramer v. Union Free School District, 395 U.S. 621, 89 S.Ct. 1886, 23 L.Ed.2d 583 (1969) (vote); Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969) (travel).

Although the right to hold specific employment is a vital and constitutionally protected one, Willner v. Committee On Character, 373 U.S. 96, 102, 83 S.Ct. 1175, 10 L.Ed.2d 224 (1963); Greene v. McElroy, 360 U.S. 474, 492, 79 S.Ct. 1400, 3 L.Ed.2d 1377 (1959), the Supreme Court has emphasized that a standard less than strict scrutiny "has consistently been applied to state legislation restricting the availability of employment opportunities." Dandridge v. Williams, 397 U.S. 471, 485, 90 S.Ct. 1153, 1162, 25 L.Ed.2d 491 (1970); see also Massachusetts Bd. Of Retirement v. Murgia, 427 U.S. 307, 314, 96 S.Ct. 2562, 49 L.Ed.2d 520 (1976). Thus, courts have refused to apply the "strict scrutiny" standard to classifications based on criminal record. Upshaw v. McNamara, 435 F.2d 1188, 1190 (1 Cir. 1970); Butts v. Nichols, 381 F.Supp. 573, 578-579 (S.D.Iowa 1974). This Court, therefore, will examine the constitutionality of Section 29-156a(c) in the light of the rational basis test.

The relevant inquiry under the rationality standard of review is "whether the challenged state action rationally furthers a legitimate state purpose or interest." San Antonio School District v. Rodriguez, 411 U.S. 1, 55, 93 S.Ct. 1278, 1308, 36 L.Ed.2d 16 (1973); see also Royster Guano Co. v. Virginia, 253 U.S. 412, 415, 40 S.Ct. 560, 64 L.Ed. 989 (1920). In the particular context of occupational licensing, the Supreme Court has formulated a test which requires that "any qualification must have a rational connection with the applicant's fitness or capacity" to perform the job. Schware v. Board of Bar Examiners, 353 U.S. 232, 239, 77 S.Ct. 752, 756, 1 L.Ed.2d 796 (1957).

III

The defendants first contend that the statute's across-the-board disqualification of felons as security guards and private detectives is rationally related to the legitimate interest of the State in preventing "the criminal element from a business that affects public welfare, morals and safety." In essence, the defendants argue there is an irrebuttable presumption that convicted felons cannot be relied on to exercise traits of honesty, fidelity, integrity and obedience to the law in the performance of their duties as guards and investigators.

For several reasons this justification is unacceptable. While we agree that the State may and should prohibit individuals of bad character from employment as private detectives and security guards, e. g., Lehon v. City of Atlanta, 242 U.S. 53, 37 S.Ct. 70, 61 L.Ed. 145 (1916); Norwood v. Ward, 46 F.2d 312 (S.D.N.Y.1930) (three-judge court), aff'd mem., 283 U.S. 800, 51 S.Ct. 494, 75 L.Ed.2d 1422 (1931), the validity of the goal of the statute is not under challenge in this lawsuit. Rather, we are asked to determine whether the method used to achieve that goal is constitutionally defensible. We hold that it is not.

The critical defect in the blanket exclusionary rule here is its overbreadth. The statute is simply not constitutionally tailored to promote the State's interest in eliminating corruption in certain designated occupations. The legislation fails to recognize the obvious differences in the fitness and character of those persons with felony records. Felony crimes such as bigamy and income tax evasion have virtually no relevance to an individual's performance as a private detective or security guard. In addition, the enactment makes an irrational distinction between those convicted of felonies and those convicted of misdemeanors. Hence, a person is eligible for licensure even though he was convicted of a crime (larceny, false entry, inciting to riot and riot) which may demonstrate his lack of fitness merely because that crime is classified as a misdemeanor under the Connecticut code. Cf. Butts v. Nichols, supra at 580.

Moreover, the statute's across-the-board disqualification fails to consider probable and realistic circumstances in a felon's life, including the likelihood of rehabilitation, age at the time of conviction, and other mitigating circumstances related to the nature of the crime and degree of participation. We believe it is fair to assume that many qualified ex-felons are being deprived of employment due to the broad sweep of the statute. Finally, the irrationality of the enactment becomes most pronounced when it is compared with another Connecticut statute, Conn.Gen.Stat. § 4-61o which prohibits state agencies (other than law enforcement departments) from rejecting applications for licenses "solely because of a prior conviction of a crime." As a result, for example, there is no automatic exclusions of felons from the practice of law or medicine. These professions certainly have a greater attachment to the public welfare than the positions of private investigators and security guards which require little skill and responsibility.

In reaching our conclusion that the statute violates equal protection, we have not overlooked the decisions of the Supreme Court in DeVeau v. Braisted, 363 U.S. 144, 80 S.Ct. 1146, 4 L.Ed.2d 1109 (1960) and Hawker v. New York, 170 U.S. 189, 18 S.Ct. 573, 42 L.Ed....