Yarbrough v. City of Jacksonville, 72-758-Civ-J-S.

• Decision Date: 20 September 1973
• Docket Number: No. 72-758-Civ-J-S.,72-758-Civ-J-S.
• Parties: Robert YARBROUGH, Plaintiff, v. CITY OF JACKSONVILLE et al., Defendants.
• Court: U.S. District Court — Middle District of Florida

363 F. Supp. 1176

Robert YARBROUGH, Plaintiff, v. CITY OF JACKSONVILLE et al., Defendants.

No. 72-758-Civ-J-S.

United States District Court, M. D. Florida, Jacksonville Division.

September 20, 1973.

Samuel S. Jacobson, Jacksonville, Fla., for plaintiff.

William Lee Allen, Jacksonville, Fla., for defendants.

ORDER AND OPINION

CHARLES R. SCOTT, District Judge.

This Court is asked to decide the issue of whether the haircut regulation established by the defendants for the Fire Protection Division of the City of Jacksonville, Florida, unconstitutionally infringes upon the firemen's right to freedom of personal expression. This issue is resolved in the negative on the basis of this Court's firm conviction: (1) that it is not the province of this Court to substitute its judgment for the informed expertise of the officials who promulgated this particular regulation in the absence of a showing of arbitrariness or unreasonableness; and (2) that the right of personal expression, which is solemnly respected and cherished under our Constitution as to almost all phases and aspects of life, may be subjected to minor abridgements thereof where considerations of personal and public safety are brought to the foreground.

The specific factual context insofar as it relates to the particular plaintiff herein will be noted only briefly. Plaintiff Robert Yarbrough was discharged from employment as a fireman with the Fire Protection Division of the Department of Public Safety for the City of Jacksonville on December 17, 1970, for insubordination for refusing to obey an order by Fire Chief J. J. Hubbard that he cut his hair and trim his sideburns to comply with departmental grooming regulations. Plaintiff brought this action to invalidate the regulations and to obtain reinstatement and back pay. The Jacksonville Association of Firefighters, Local 1834, was allowed to intervene under Rule 24 of the Federal Rules of Civil Procedure on the ground that its interests coalesced with those of the plaintiff in seeking to invalidate the regulations at issue here.

Plaintiffs (both Yarbrough and the Union) contend that the haircut regulations of the Fire Protection Division have no rational relationship to the needs or functions of the division and that the regulations were arbitrarily promulgated to accommodate the particular tonsorial predilections of the individuals vested with the authority to establish said regulations. They also contend that the regulations do not serve to promote any interest in job performance and are an illegal infringement upon the constitutionally protected rights of freedom of expression of the firemen. Defendants, on the other hand, assert that the regulations under scrutiny are necessitated on two grounds: (1) safety considerations and (2) the need for discipline in a "quasi-military organization". They deny that there exists a constitutionally protected right to freedom of choice as to one's particular hairstyle.¹

Jurisdiction is invoked pursuant to 28 U.S.C. §§ 1343, 2201, 2202 and 42 U.S.C. §§ 1981, 1983, 1983 and the First, Fifth, Ninth, Tenth and Fourteenth Amendments to the Constitution.

The current hair regulations for Jacksonville firemen, which were promulgated on March 31, 1972, and which went into effect on April 7, 1972, are as follows (except that the current policy is liberalized to the extent that hair on the back of the head is now allowed to be blocked instead of tapered):

1. Mustaches are permissible, provided they are neatly trimmed and non-eccentric. The mustache shall not extend beyond a line perpendicular to the corners of the mouth, nor below a line horizontal with the corner of the mouth.

2. Hair shall be well-groomed, cut short or medium length and neatly trimmed. The hair outline shall follow the contour of the ear and slope to the back of the neck. The hair on the back of the head shall be tapered so as to conform to the contour of the head and shall not extend beyond an imaginary line, one-half inch above the collar. The emphasized language, as indicated above, has been liberalized to permit blocking in the back of the head instead of tapering.

3. Sideburns shall be neatly trimmed, not to exceed one inch in width, and shall not extend beyond the bottom of the ear lobe.

4. Members shall be clean shaven upon reporting for duty and shall remain clean shaven throughout their tour of duty. Beards, bushy sideburns, and eccentric hair styles are forbidden. Diagrams of the above-mentioned styles are being distributed with this order. It shall be the duty of the Chief Officers to see that the Company Officers enforce these Rules and Regulations.²

The substance of these rules resulted from certain recommendations submitted to Chief Smith³ by a special Rules and Regulations Committee which he appointed and which was composed of a Chief Officer, a Captain, a Lieutenant, an Engineer and a Private. Chief Smith subsequently adopted these recommendations and, shortly after written notice thereof was published, the regulations were changed to permit the box cut.

At the non-jury trial of this case which began on July 5, 1973, and which was later resumed and concluded on July 19, 1973, there was adduced conflicting evidence as to the safety ramifications of hair length. Plaintiffs' case in this regard consisted of the following: (1) the testimony of Fire Private Donald G. Ellis, the substance of which was that in his personal opinion there was no rational relationship between the grooming code and performance by firefighters; (2) the demonstration by Fire Private Lee Ellis that sideburns extending below the ear would not necessarily interfere with the seal of the gas mask specifically adopted for firefighting use; (3) the testimony of Fire Private Johnny M. Sirmans that firemen were allowed to wear wigs but that the wigs were required to conform to regulations even if the fireman were totally bald and could yank his wig off when the alarm sounded; (4) the testimony of short-haired Private Rembert F. Arnold that his long-haired co-participants in the Certified Smokediver's program at the Florida State Fire College performed equally as well as he did in obtaining the Smokediver's Certificate and that some of the co-participants had hair almost down to their shoulders.

A summary of defendants' evidence which supports the conclusion that there was a rational connection between personal safety and hair length is as follows: (1) the testimony of Yarbrough's immediate superior, Lieutenant Shrewsbury, that in his personal opinion long sideburns would have a tendency to interfere with the seal of the gas mask and that long hair per se would cause problems from the "flash standpoint"; (2) the testimony of now retired Chief Hubbard, with 44 years of firefighting experience, that long hair would be much more prone to catching fire; (3) the testimony of Navy Chief Petty Officer H. P. Underwood that long sideburns could interfere with the seal of a gas mask according to the size of the individual's face since gas masks were standard in size and that long hair on the back of the head could cause a gradual loosening of the gas mask head straps thereby affecting the adequacy of the seal; (4) the testimony of present Chief William E. Smith, with 42 years of firefighting experience, that the longer the hair and sideburns the more chance there was for inward leakage in the gas mask; and (5) the submission into evidence of two firefighting industry articles⁴ involving empirical studies of the specific relationship between facial hair and sideburns and gas mask leakage that concluded that the leakage rate significantly increased as the amount of facial hair and/or length of sideburns increased. Both sides agreed that the direct effect of breakage of the seal of the gas mask was the increased susceptibility to smoke inhalation which in turn could potentially result in substantial impairment in effectiveness and even severe illness or death. The crux of this discussion is simply that no conclusive determination can be made as to the effect of longer hair styles on the personal safety of firemen and this Court is unwilling to interfere with the reasonable conclusions of the responsible officers in the Fire Protection Division that there is a rational relationship between longer hair and personal safety of its firemen. In addition, it should be emphasized that the evidence indicated an uncontroverted demonstrable link between the personal safety of the firemen as it related to their effectiveness to fulfill their firefighting duties and the public safety, in that when firemen become overcome with smoke as a result of leakage in their gas masks, greater burdens are imposed on the other members of the unit who have to take up the slack created by the debilitation of the overcome fireman. This creates additional hazards to the remaining firemen, lessens their effectiveness and in turn thereby affects the conceded public interest in the alacritous extinguishing of fires.

The second basis for this Court's conclusion that the hair regulation sub judice does not encroach upon constitutional freedom of expression is the firm conviction that it is not the function of the judiciary to interfere with a fire chief's reasonable notion as to what is necessary to maintain discipline within a "quasi-military" organization for which he is responsible and which is dedicated to the protection of the public and its property. There is only one case which this Court has found which deals with the constitutional validity of a fireman's haircut regulation, although, by analogy, there are several policemen's haircut regulation cases that bear on the holding in the case at bar. The firemen's haircut regulation case is Lindquist v. City of Coral Gables, 323 F.Supp. 1161 (S.D. Fla.1971), from which no appeal was apparently taken. That case struck down the Coral Gables, Florida, firemen's regulation. Even though this Court is not bound by ...