# Foley v. Connelie

> District Court, S.D. New York · July 8, 1976 · 419 F. Supp. 889

URL: https://www.frixlaw.com/law-library/cases/9704192

## Case

- **Full name:** Edmund FOLEY, Individually and on Behalf of All Other Persons Similarly Situated, Plaintiff, v. William G. CONNELIE, Individually and in His Capacity as Superintendent of the New York State Police, and A. S. Smith, Individually and in his/her Capacity as Director of Personnel of the New York State Police, Defendants
- **Court:** District Court, S.D. New York
- **Decided:** July 8, 1976
- **Citations:** 419 F. Supp. 889; 14 Fair Empl. Prac. Cas. (BNA) 593; 13 Empl. Prac. Dec. (CCH) 11,603; 1976 U.S. Dist. LEXIS 14230
- **Precedential status:** Published
- **Opinion:** Dissent by Mansfield
- **Judges:** Mansfield, Pollack, Werker
- **Cited by:** 5 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9704192

## Opinion text

MANSFIELD, Circuit Judge
(dissenting).
There is not a shred of evidence in the record of this case to indicate, much less prove, that a properly tested, selected and trained resident alien would be less competent than a citizen to perform the duties of a New York state trooper, which admittedly are paramilitary in nature, or that members of the plaintiff class would present a poorer security risk or be less loyal to the State than citizens in the performance of those duties. On the contrary, this country has in practice considered resident aliens not only to be qualified but obligated to perform analogous duties in our armed services. The State of New York has failed completely to sustain its heavy burden under the Equal Protection Clause of demonstrating that the exclusion of noncitizens from service as state policemen is necessary to protect some substantial state interest. Accordingly, I must respectfully dissent.
It is as close to hornbook law as constitutional law can ever be that resident aliens are no longer a group bereft of the protection of the Equal Protection Clause or other provisions of the Constitution. On the contrary, because of their vulnerability to discrimination based on their minority status and their inability to protect their interests through the political process, resident aliens are entitled under the Equal Protection Clause to a careful judicial examination of any efforts to deny them their rights. “[Classifications based on alienage, like those based on nationality or race, are inherently suspect and subject to close judicial scrutiny. . . . Accordingly, . ‘the power of a state to apply its laws exclusively to its alien inhabitants as a class is confined within narrow limits.’ ” Graham v. Richardson, 403 U.S. 365, 372 , 91 S.Ct. 1848, 1852 , 29 L.Ed.2d 534 (1971), quoting Takahashi v. Fish & Game Comm’n, *900 334 U.S. 410, 420 , 68 S.Ct. 1138 , 92 L.Ed. 1478 (1948) (footnotes omitted). The strict judicial scrutiny under which the Equal Protection Clause places such classifications demands, of course, that the classification be supported by a substantial state interest and be no broader than necessary to protect that interest.
“The Court has consistently emphasized that a State which adopts a suspect classification ‘bears a heavy burden of justification,’ McLaughlin v. Florida, 379 U.S. 184,196 [ 85 S.Ct. 283, 290 , 13 L.Ed.2d 222 ] (1964), a burden which, though variously formulated, requires the State to meet certain standards of proof. In order to justify the use of a suspect classification, a State must show that its purpose or interest is both constitutionally permissible and substantial, and that its use of the classification is ‘necessary . to the accomplishment’ of its purpose or the safeguarding of its interest.” In re Griffiths, 413 U.S. 717, 721-22 , 93 S.Ct. 2851, 2855 , 37 L.Ed.2d 910 (1973) (footnotes omitted).
The fact that the Constitution demands solicitous protection of the rights of resident aliens is once again illustrated by the very recent decision in Hampton v. Mow "Sun Wong, 426 U.S. 88 , 96 S.Ct. 1895 , 48 L.Ed.2d 495 (1976), where the Supreme Court upheld a challenge, brought under the Fifth Amendment’s Due Process Clause, to a U.S. Civil Service Commission rule barring aliens from most federal civil service positions. While the Court acknowledged the “paramount federal power over immigration and naturalization,” id. at 100 , 96 S.Ct. at 1904 , and therefore applied a less stringent standard of review to this federal rule than it would to state rules affecting aliens challenged under the Equal Protection Clause, it nonetheless found the government interests advanced in support of the rule insufficient to justify its “impact on an identifiable class of persons who, entirely apart from the rule itself, are already subject to disadvantages not shared by the remainder of the community,” id. at 102 , 96 S.Ct. at 1905 , and accordingly held the rule deprived aliens of liberty without due process of law.
This heightened protection of resident aliens’ interests reflects the realization that they should not be treated as distasteful intruders upon our society but rather as welcome participants in it, even though they lack the full political rights reserved for citizens. “Resident aliens, like citizens, pay taxes, support the economy, serve in the Armed Forces, and contribute in myriad other ways to our society. It is appropriate that the State bear a heavy burden when it deprives them of employment opportunities.” Id., 413 U.S. at 722 , 93 S.Ct. at 2855 . To this might be added that they are, like citizens, obligated to obey the laws of this land. The fact that an individual bears the status of resident alien does not, therefore, imply that he rejects the laws and values of the United States; indeed, even those aliens who most fervently support those laws and desire to become citizens must, with relatively few exceptions, remain in the status of resident alien for five years before becoming eligible for naturalization. 8 U.S.C. § 1427 (a). Thus they are often unable, simply by the stroke of a pen and the taking of an oath, to “give up” their status immediately or change it to that of American citizen. The record in this case gives no indication that the named plaintiff is not in precisely this situation. 1
The majority opinion gives lip service to these established principles but then seeks to circumvent their application to the present case by reasoning that the citizenship requirement for the position of state policeman is exempt from the demanding standard of review applied to other classifications based on alienage. The basis for this approach is said to be certain language in Sugarman v. Dougall, 413 U.S. 634 , 93 S.Ct. 2842 , 37 L.Ed.2d 853 (1973), where, in the course of ruling that the ban of aliens from civil service employment contained in *901 N.Y.Civil Service Law § 53(1) violated the Equal Protection Clause, Justice Blackmun, writing for eight members of the Supreme Court, stated that the Court would not review so severely a citizenship requirement of
“persons holding state elective or important nonelective executive, legislative, or judicial positions, for officers who participate directly in the formulation, execution, or review of broad public policy perform functions that go to the heart of representative government.” Id. at 647, 93 S.Ct. at 2850.
When such positions were involved, Justice Blackmun continued, the State would only be required to make the lesser showing that “citizenship bears some rational relationship to the special demands of the particular position,” id., quoting Dougall v. Sugarman, 339 F.Supp. 906, 911 (S.D.N.Y.1971) (Lumbard, J., concurring).
When this language quoted from Sugar-man is viewed in the light of the Court’s reasoning behind it, the class of executive officers to which it would apply is clearly a narrow one. The Court’s suggestion that the State might prescribe citizenship for some offices without a showing of special need was expressly based upon the State’s obligation “to preserve the basic conception of a political community.” Dunn v. Blumstein, 405 U.S. 330, 344 , 92 S.Ct. 995, 1004 , 31 L.Ed.2d 274 (1972). Voting and legislating are paradigmatic examples of participation in a political community; to require that aliens, by definition persons not members of that political community, be allowed to exercise these functions would be to erode beyond recognition the concept of a political system and of citizenship. Similarly, some high executive officials, such as governors, cabinet members, and heads of agencies, necessarily possess such broad delegated powers that they inevitably and properly act “politically” by making basic policy choices which shape the future of the political community, in this instance the State of New York. Though such top policy-making officials are, of course, ultimately under the control of the voters and legislators, as a practical matter such officials are properly acting as leaders of the political community and thus may reasonably be required to be members of it. These are the persons to whom the Sugarman opinion referred as those who might reasonably be required to be citizens. See also In re Griffiths, supra, 413 U.S. at 729, 93 S.Ct. at 2858 (“one so close to the core of the political process as to make him a formulator of government policy”.)
Important as are state policemen — and for that matter other policemen — to the security and well being of the State, their proper function is neither political nor policy-making. Their task is not to elect or legislate but to enforce the law. The governmental policy implemented by them is set out, in considerable detail, in the criminal laws of New York, which it is their duty to enforce. In carrying out that clearly-defined policy the state policeman performs duties which for the most part are essentially ministerial in nature, e. g., the patrolling of highways and guarding of other areas to prevent crime and detect violators; the protection of state officials and buildings; the control of vehicular traffic on state highways; the furnishing of emergency first aid; searches for missing persons; the investigation of crimes, suspected or committed, in response to complaints or for other reasons; the making of arrests and execution of warrants; the interrogation of suspects, arraignment of defendants, and the collection and furnishing of evidence, including expert testimony.
In the performance of these and other similar duties policemen, of course, are not automatons. They do exercise some discretion in law enforcement which may, in particular situations, be said to rise to the level of limited, interstitial policymaking, see generally K. Davis, Police Discretion (1975). However, their activities can hardly be regarded as a political function going “to the heart of representative government.” Sugarman v. Dougall, supra, 413 U.S. at 647, 93 S.Ct. at 2850 . New York State itself recognizes that the individual state policeman is not properly a law or policy-maker compa *902 rabie to a legislator or high executive official; he is not given free rein, but rather is controlled by a chain of command and organization which the State itself describes as “para-military.” (Connelie affidavit, ¶ 4). See also 9A N.Y.C.R.R. § 478.7 (regulation emphasizing importance of discipline in state police force).
In short, whatever the range of offices ultimately held to be embraced within those so intimately connected with the State’s political processes that the State may, without showing a compelling need, simply mandate that they be filled by citizens only, the position of state policeman, being one which involves the application of settled state law rather than the formulation of new law or policy, is not one of them. Since Sugarman v. Dougall, supra, thus provides no basis for lessening the stringent standard to be applied upon judicial review of the statutory disqualification of noncitizens from the State police force, the State must bear the heavy burden of showing that the disqualification is necessary to safeguard a substantial or compelling state interest. See In re Griffiths, supra, 413 U.S. at 721-22, 93 S.Ct. 2851 ; Graham v. Richardson, supra, 403 U.S. at 375 , 91 S.Ct. 1848 . No such showing has been made in this case.
The issue boils down to whether the disqualification of aliens from the force is in any sense necessary to assure that the New York State Police will faithfully perform their duties. The State attempts to provide the necessary link by suggesting that the alien’s presumed loyalty toward his country of nationality and his possible partiality toward his fellow aliens may create a conflict of interest in a variety of situations as, for example, when a noncitizen state policeman is called upon to assist federal authorities in enforcing immigration laws, to defend the State against insurrection, or to provide protection for foreign dignitaries at the 1980 Winter Olympics at Lake Placid. 2
The State’s assumption that a noncitizen state policeman might show partiality toward his fellow aliens may be arguable as a matter of sociological and psychological speculation, but it is no more plausible in theory than the opposite assumption: that the noncitizen state policeman would be especially careful to enforce the laws against fellow aliens, not only to avoid any appearance of partiality but also to prevent the alien lawbreaker from bringing disgrace upon all aliéns, including the policeman. Or, it might simply be assumed that noncitizen and citizen policemen will not differ in their attitudes and diligence in enforcing the laws against all persons, much as black and white police officers do not appear to differ appreciably in their attitudes toward police problems, including racially-related ones. See J. Wilson, Thinking About Crime 106 (1975). In the present case, all of these theories remain precisely that: just theories. Even if we assume them to be plausible as a matter of general speculation, none is supported by any empirical evidence in the record.
Were the classification created by the state legislature in its enactment of § 215(3) of the Executive Law not to be viewed as a “suspect” one according to clear Supreme Court decisions, e. g., Sugarman v. Dougall, supra ; In re Griffiths, supra; Graham v. Richardson, supra, the legislature might escape the stricter standard of review necessitating judicial intervention and rely upon one of these theories as a ground for upholding its action according to the looser rational basis criterion. See, e. g., Williamson v. Lee Optical Co., 348 U.S. 483, 488-89 , 75 S.Ct. 461 , 99 L.Ed. 563 (1955); Railway Express Agency Inc. v. New York, 336 U.S. 106, 109-10 , 69 S.Ct. 463 , 93 L.Ed. 533 (1949). See generally Developments in the *903 Law — Equal Protection, 82 Harv.L.Rev. 1065, 1082-87 (1969). However, since the State has here acted to exclude a minority accorded special protection by the Equal Protection Clause, the State must assume the heavy burden of coming forward with evidence that its assumption is not merely plausible but rests on a foundation of fact rather than of speculation. The State has not even attempted to make such a showing to support its idea that a resident alien would be less likely than a citizen to live up to his oath as a policeman to enforce the law against all persons, alien or otherwise.
The State’s failure to make the réquired showing is not remedied by the majority opinion’s citation of a hodge-podge of statutes and other materials concerning various aspects of the legal status of aliens. Far from showing as the majority argues, that a permanent resident alien suffers from a “limbo of loyalty,” these materials, insofar as they are relevant at all to the present case, point toward the conclusion that permanent resident aliens are, as a group, as law-abiding and loyal as citizens and could be safely employed as state troopers. The majority notes, for instance, that aliens are subject to deportation. However, deportations of permanent resident aliens — the plaintiff class in this case — are exceedingly rare, so rare that it is impossible to say that a permanent resident alien’s potential deportability poses any obstacle to his employment. In 1975, some 4.2 million aliens were permanent residents of the United States. 1975 Annual Report of the Immigration and Naturalization Service 112. During the year, only 1,716 aliens who had entered the country with such an “immigrant” status were deported or required to leave the country. Id. at 98. See also Sugarman v. Dougall, supra, 413 U.S. at 645, 93 S.Ct. 2842 .
The majority’s reference to the Selective Service laws seemingly to suggest a Congressional judgment that permanent resident aliens may pose security problems — is also misguided. The provision cited, 31 C.F.R. § 1611.2 (a), excludes from the draft only aliens temporarily present in the United States: diplomats, students, business or pleasure travelers, and the like. See id.; 8 U.S.C. § 1101 (a)(15). The permanent resident aliens who are the plaintiff class in this case are subject to the draft to the same extent as citizens, see 50 U.S.C.App. § 453; 31 C.F.R. § 1611.1 (a)(2), (3), (4); Sugarman v. Dougall, supra, 413 U.S. at 645, 93 S.Ct. 2842 , which suggests that Congress does not perceive the same security risks from the aliens involved here that is suggested by the majority. The status of enemy aliens in wartime mentioned by the majority is simply irrelevant to this case. If hostile relations existed between the United States and a particular alien’s country of nationality, this could be taken into account as part of the “individualized determination” of the alien’s eligibility for employment permitted by Sugarman v. Dougall, supra, 413 U.S. at 646-47, 93 S.Ct. 2842 . See In re Griffiths, supra, 413 U.S. at 722 n. 11, 93 S.Ct. 2851 . But the statute presently under review does not limit the disability of permanent resident aliens to those unusual situations where a conflict of loyalties might conceivably exist. Rather, it bars all resident aliens from the state police, including those who have immigrated to the United States from countries which have long enjoyed the most cordial relations with this nation. We may, for instance, take judicial notice that the possibility of a war between the United States and Ireland (the homeland of the named plaintiff) is exceedingly slim.
Finally, by noting that aliens may “claim the diplomatic protection” of their country of nationality, the majority seemingly seeks to imply that they would somehow be immune from dismissal for improper performance of their duties as policemen. Nothing, of course, could be further from the truth. The “diplomatic protection” involved is merely a foreign consulate’s inquiry into a situation involving one of its nationals, not the immunity from prosecution reserved for accredited diplomats. Aliens, other than accredited diplomats, are regularly prosecuted if they break the laws, and would *904 similarly be subject to dismissal from their police posts on proper grounds.
No doubt there are some resident aliens whose backgrounds might reasonably create doubt as to their dedication to the laws of the State, just as there are citizens whose backgrounds would provide similar suspicions. Under authority provided by the state legislature, see N.Y. Exec. Law § 215 (3), Superintendent Connelie of the State Police already employs selection procedures to weed out citizen applicants who appear unsuitable for police work. These same selection and training procedures, applied equally to all applicants, would provide the State with the means of assuring that only those aliens whose loyalty and suitability for police work were not questionable would become members of the State Police force. 3 Such a case-by-case determination of the qualifications of particular applicants, as opposed to the flat ban on noncitizens now employed by the State, was implicitly approved by the Supreme Court in Sugarman v. Dougall, supra, 413 U.S. at 646-47, 93 S.Ct. at 2850 :
“[W]e do not hold that, on the basis of an individualized determination, an alien may not be refused, or discharged from, public employment, even on the basis of noncitizenship, if the refusal to hire, or the discharge, rests on legitimate state interests that relate to qualifications for a particular position or to the characteristics of the employee.” (Emphasis added)
Once on the State Police force, a noncitizen trooper would, of course, be subject to the same chain of command and disciplinary sanctions as his citizen counterparts to assure that he faithfully performed his duties. The fact that requirements of citizenship for policemen, while not uncommon, are hardly universal among the states underlines the conclusion that such individual evaluations of noncitizen applicants and the normal discipline of State Police are likely to fully protect the State’s interest in having a loyal and diligent State Police force. 4
. Counsel for the plaintiff advises that the plaintiff is, in fact, presently ineligible for naturalization because he has not yet met the five-year residency requirement, and that he will be too old to apply for the State Police after he has been naturalized. (Reply Brief, p. 10).
. It can easily be doubted how often even these potential conflicts are likely to arise. Though the State, for instance, stressed at oral argument the difficulties which might arise if a noncitizen state policeman were required to arrest illegal aliens, the affidavit by Superintendent Connelie states that the more than 3,000 members of the force made only 200 such arrests in 1974. Other potential conflicts seen by the State — for instance, those perceived from having noncitizen troopers provide security at the Winter Olympics — are clearly avoidable through avoiding assignment of noncitizen troopers to such duties.
. The fact that the applicant for the State Police must undergo background checks and rigorous selection procedures distinguishes this case from United States v. Gordon-Nikkar, 518 F.2d 972 (5th Cir. 1975), and Perkins v. Smith, 370 F.Supp. 134 (D.Md.1974), appeal docketed, 426 U.S. 913 , 96 S.Ct. 2616 , 49 L.Ed.2d 368 (1974), where the courts upheld citizenship requirements for jurors. Given the fact the jurors must, of necessity, be selected through rather expedited procedures, the only method the State has of safeguarding its interest in having jurors with demonstrated knowledge of and dedication to the laws they are to apply is by relying on the naturalization procedures. There is no reason to believe, however, that the State Police selection procedures would be less effective than the naturalization procedures in determining if a given noncitizen applicant understands and is likely to support faithfully the laws of the nation and the State, insofar as this can ever be determined through such procedures.
. Besides New York 23 states have statutory requirements of citizenship for members of the State Police. See, e. g., Ariz.Rev.Stat.Ann. § 38-201; Mich.Stat.Ann. § 4.434; R.I.Gen. Laws § 42-28-28 (1956). Twenty-six states, e. g., California, Maryland, and Wisconsin, have no apparent statutory citizenship requirement, although some of these states may have established such a requirement through rule or regulation. A spot survey conducted by the Federal Bureau of Investigation at the request of this court indicated that citizenship was required by the majority of the police agencies surveyed, although not by the California State Highway Patrol, and the police departments of Boston, Mass, and New Haven, Conn. At the least, this data indicates that the importance of citizenship requirements for policemen is subject to different appraisals in various states and localities. Given the heavy burden of proof resting on New York in this case, the fact that a number of police agencies forego such citizenship requirements without apparent injury to their interests casts considerable doubt on the necessity for, and thus the constitutionality of, the requirement.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9704192. Public record. Not legal advice.