Vorbeck v. Schnicker, 80-1982

• Decision Date: 25 January 1986
• Docket Number: No. 80-1982,80-1982
• Citation: 660 F.2d 1260
• Parties: Officers William J. VORBECK, Roy L. Perkins, George Ratterman, Walter Otten, Gary Perkins, Joseph Brasser, and The St. Louis Police Association, a not for profit organization, Appellants, v. John A. SCHNICKER, Jr., Suzanne Hart, Frederick N. Weathers, and James F. Conway, as the Board of St. Louis Police Commissioners of the City of St. Louis, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1260

660 F.2d 1260

Officers William J. VORBECK, Roy L. Perkins, George

Ratterman, Walter Otten, Gary Perkins, Joseph

Brasser, and The St. Louis Police

Association, a not for profit

organization, Appellants, v. John A. SCHNICKER, Jr., Suzanne Hart, Frederick N. Weathers, and James F. Conway, as the Board of St. Louis

Police Commissioners of the City of St.

Louis, Appellees.

No. 80-1982.

United States Court of Appeals,

Eighth Circuit.

Submitted June 18, 1981.

Decided Oct. 1, 1981.

Certiorari Denied Jan. 25, 1986.

See 102 S.Ct. 1278.

London, Greenberg & Fleming, Lawrence J. Fleming (argued), St. Louis, Mo., for appellants.

Klutho, Cody & Kilo Attys., Inc., Edward C. Cody (argued) and Charles W. Kunderer, St. Louis, Mo., for appellee.

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

FLOYD R. GIBSON, Senior Circuit Judge.

The St. Louis Police Officers Association and several individual members of the St. Louis Police Department (appellants) brought this action for injunctive and declaratory relief under 42 U.S.C. § 1983 and 28 U.S.C. § 2201 et seq., alleging that certain provisions of the personnel regulations of the St. Louis Police Department are unconstitutional.

None of the individual plaintiffs has been disciplined under the regulations in question. They sue on the basis that the regulations are vague and overbroad and that they unnecessarily chill the officers' exercise of their constitutional rights. Certain of the rules are viewed as arbitrary and capricious, having no rational relation to any legitimate public interest. This is not a class action suit.

A hearing was held on August 11-12, 1980. On October 15, 1980, the court entered judgment upholding the constitutionality of all the regulations which remained challenged except one, which was amended prior to the final order and is not in issue here.

The rules in dispute were promulgated by the Board of Police Commissioners of the City of St. Louis, Missouri (appellees), and are contained in the St. Louis Police Manual. All of the contested rules are found in section 7.010, entitled "Standards of Conduct." The challenged subsections, briefly summarized, provide the following:

Subsection (c) proscribes conduct "unbecoming to a member of the Department."

Subsection (d) prohibits any conduct "contrary to the good order and discipline of the Department."

Subsection (e) prohibits any conduct "detrimental to the public peace or welfare."

Subsection (f) prohibits an officer from drinking alchoholic beverages when off duty to an extent which would render him "unfit for immediate duty."

Subsection (h) prohibits "(f)ailing to maintain good credit relations with creditors."

Subsection (i) requires an officer to obtain permission of the Police Board before accepting anything of value in settlement for personal injury or property damages incurred in the course of duty.

Subsection (m) proscribes leaving the city or county of St. Louis for a period exceeding 24 hours without having first obtained the permission of the commanding officer.

Subsection (g) prohibits an officer from leaving his residence or place of confinement while on the sick list except to obtain medical treatment or attention.

Subsection (w) subjects an officer to disciplinary action for engaging in secondary employment without the permission of the Chief of Police.

Subsection (x) requires an officer to be prepared at all times to act immediately, to detect and prevent crime, and to preserve the peace and order, whether or not on duty.

Although we recognize that some of the prohibitions contained in the disputed police regulations are indeed cast in broad terms, we hold that the issues raised in this appeal are not ripe for judicial determination, and, for the reasons stated below, we affirm the judgment of the district court, 498 F.Supp. 158. ¹

I.

Due process requires that a penal statute be "sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties." Connally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322 (1926). Uncertainty in a criminal statute must prove fatal to its validity. "A criminal statute cannot rest upon an uncertain foundation. The crime, and the elements constituting it, must be so clearly expressed that the ordinary person can intelligently choose, in advance, what course it is lawful for him to pursue." Id. at 393, 46 S.Ct. at 128 (quoting United States v. Capital Traction Co., 34 App.D.C. 592).

The prohibition against vagueness extends to administrative regulations as well as to penal statutes. E. g., Bence v. Breier, 501 F.2d 1185, 1188 (7th Cir. 1974), cert. denied, 419 U.S. 1121, 95 S.Ct. 804, 42 L.Ed.2d 821 (1975). However, when administrative regulations such as those applied to a police force are at issue, factors which are not relevant in examining a criminal statute emerge and must be taken into account when weighing demands for specificity.

There are areas of human conduct where, by the nature of the problems presented, legislatures simply cannot establish standards with great precision. Control of the broad range of disorderly conduct that may inhibit a policeman in the performance of his official duties may be one such area, requiring as it does an on-the-spot assessment of the need to keep order.

Smith v. Goguen, 415 U.S. 566, 581, 94 S.Ct. 1242, 1251, 39 L.Ed.2d 605 (1974).

The provisions of the personnel manual at issue here do regulate aspects of the conduct of police officers which are left unregulated in civilian life. Such regulation, within reasonable bounds, is necessary to the effective operation and management of the police force. See Kelley v. Johnson, 425 U.S. 238, 245-46, 96 S.Ct. 1440, 1444-45, 47 L.Ed.2d 708 (1976).

Vagueness and overbreadth are matters of degree and context. See Broadrick v. Oklahoma, 413 U.S. 601, 615-16, 93 S.Ct. 2908, 2917-18, 37 L.Ed.2d 830 (1973); Bence v. Breier, 501 F.2d at 1188. The Supreme Court, in Parker v. Levy, 417 U.S. 733, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974), examined certain provisions of the Uniform Code of Military Justice ² and found that they were neither unconstitutionally overbroad nor vague. The Court wrote: "For the reasons which differentiate military society from civilian society, we think Congress is permitted to legislate both with greater breadth and with greater flexibility when prescribing the rules by which the former shall be governed than it is when prescribing rules for the latter." Id. at 756, 94 S.Ct. at 2561. Thus the Court held that special considerations relevant to military needs warranted a "broader sweep" in military regulations than might be permissible in a civilian criminal code.

Police regulations, like military regulations, are generally by necessity cast in broad terms. As the court below pointed out,

The St. Louis Metropolitan Police Department is a 1900 member para-military organization charged with police functions within the City of St. Louis which is a large section of a two and one-half million populated metropolitan area. Their functions include riot control, traffic regulation, minor criminal matters and major metropolitan area drug control. Members of the Police Department are engaged in both uniform activities and highly sensitive undercover operations. It is essential that they be subject to many stringent rules and regulations which would not apply to other government agencies.

In Bence v. Breier, supra, the Seventh Circuit explicitly refused to extend the reasoning of Parker v. Levy, supra, dealing with military regulations, to regulations of the Milwaukee Police Department. The regulation challenged in Bence proscribed "conduct unbecoming a member and detrimental to the service." That court found it unconstitutionally vague on its face but then added that even if it were not facially invalid, its application in the circumstances presented in that case would be constitutionally impermissible. Id. at 1193. In distinguishing Parker v. Levy, the Bence court relied heavily on the language in Parker which indicated that the military regulations were upheld because the "seemingly imprecise" standards had gained acceptable meaning through custom and usage. Bence v. Breier, 501 F.2d at 1191-92. The Bence court concluded that

even though the phrase 'conduct unbecoming an officer and a gentleman' has attained a fixed and certain content in the military which is constitutionally sufficient to withstand an attack on vagueness grounds, it does not follow that the content is transferable to civilian police department rules incorporating the same language.

Id. at 1192.

It is important, however, to note that the Bence court was faced, in the case before it, with a concrete and, in its view, clear example of the phrase at issue having attained content which was insufficient to withstand constitutional muster. Since the phrase had been susceptible to an interpretation which violated the constitutional rights of the officer charged under it, it had not "attained a fixed and certain content" which was "constitutionally sufficient to withstand an attack on vagueness grounds." Thus, the rule at issue had, of necessity, been unconstitutionally vague.

II.

As illustrated by Parker and Bence, there is a delicate balance to be struck in cases such as that now before us. Equally legitimate interests appear on both sides of the scale. On the one side there are the needs of institutions, such as the military and the police, which must demand a high level of discipline and duty of their members in order to function effectively for the good of all members of society. See generally Kelley v. Johnson, 425 U.S. at 245-46, 96 S.Ct. at 1444-45. On the other side is the freedom of those who serve in the case before us, those who serve in the police force. "(P) olicemen * * * are not relegated to a watered-down version of constitutional...