Petition — Vorbeck v. Schicker

81-1018

In THE

Supreme Court of the Bnited States

Term 1981

Orricers WILLIAM J. Vorseck, Roy L. Perkins,

GeorGe RATTERMAN, WALTER OTTEN, GARY PERKINS,

JoserpH Brasser, and Tue St. Louis Po.ice AssociaTION,

a Not for Profit Organization,

Petitioners,

vs.

Joun A. Scuicxer, Jr., SUZANNE Hart, FREDERICK

N. WEATHERS, and James P. Conway, as the Board of

St. Louis Police Commissioners of the City of St. Louis,

Respondents.

PETITION FOR WRIT OF CERTIORARI

To The United States Court of Appeals

for the Eighth Circuit

LonDON, GREENBERG & FLEMING

LAWRENCE J. FLEMING

C. JoHN PLEBAN

1600 Boatmen’s Tower

100 North Broadway

St. Louis, Missouri 63102

(314) 231-8700

Attorneys for Petitioner

St. Louis Law Printing Co., Inc., 411 No. Tenth Street 63101 314-231-4477

QUESTION PRESENTED

Are the claims of St. Louis Police Officers that the personnel

regulations of the St. Louis Police Department are unconstitu-

tionally vague and chill certain of their constitutional rights a

judiciable controversy despite the fact that the named plaintiffs

have not been disciplined for violation of the regulations?

INDEX

Page

rs ccd dienes cecéewegendsenseses i

inn ccc euedabenenenesé iii

iad nied ekoneets eteedeceeeuse l

le EE I TE 5a on a a ee 1

Constitutional Provisions Involved .................. 2

EEE EE EP ee 3

Reasons for Granting the Writ ...................... 6

EEE EE ee oe 9

Appendix A - Opinion of U.S. Court of Appeals ...... A-l

TABLE OF AUTHORITIES

Doe v. Bolton, 410 U.S. 179 (1973) .............0005- 6,7

Bence v. Breier, 501 F.2d 1185 (7th Cir. 1974) ......... 8

Joseph v. United States Civil Service Commission, 554

F.2d 1140 (Dist. of Col. 1977) .............5.05- 8

O’Shea v. Littleton, 414 U.S. 488 (1974). ............. 6

Pierce v. Society of Sisters, 268 U.S. 510(1925)........ 6

No. 80-1982

In THE

Supreme Court of the United States

Term 1981

Orricers WILLIAM J. Vorseck, Roy L. Perkins,

GEorGE RATTERMAN, WALTER OTTEN, GARY PERKINS,

JoserPH Brasser, and Tue St. Louis PoLice AssociaTION,

a Not for Profit Organization,

Petitioners,

vs.

Joun A. Scuicxer, Jr., SUZANNE HART, FREDERICK

N. WEATHERS, and James P. Conway, as the Board of

St. Louis Police Commissioners of the City of St. Louis,

Respondents.

PETITION FOR WRIT OF CERTIORARI

To The Missouri Court of Appeals

Eastern District

Petitioners pray that a Writ of Certiorari be issued to review

the judgment of the Eighth Circuit Court of Appeals, entered in

this cause on October 1, 1981.

OPINIONS BELOW

The Opinion of the Eighth Circuit Court of Appeals, dated

October 1, 1981, is not yet reported, but is appended hereto as

Appendix A.

JURISDICTION

The judgment of the Eighth Circuit Court of Appeals was

entered October 1, 1981. Jurisdiction of this Court is invoked

under 28 U.S.C. §1254(1).

—

CONSTITUTIONAL PROVISIONS INVOLVED

Article III:

**Section 2. The judicial Power shall extend to all Cases, in

Law and Equity, arising under this Constitution, the Laws

of the United States, and Treaties made, or which shall be

made, under their Authority; - to all Cases affecting Am-

bassadors, other public Ministers and Consuls; - to all

Cases of admiralty and maritime Jurisdiction; - to Con-

troversies to which the United States shall be a Party: - to

Controversies between two or more States; - between a

State and Citizens of another State; - between citizens of

different States, - between Citizens of the same State

claiming Lands under Grants of different States, and be-

tween a State, or the Citizens thereof, and foreign States,

Citizens or Subjects.”’

Amendment V:

**No person shall be held to answer for a capital, or other-

wise infamous crime, unless on a presentment or indict-

ment, of a Grand Jury, except in cases arising in the land

or naval forces, or in the Militia, when in actual service in

time of War or public danger; nor shall any person be sub-

ject for the same offence to be twice put in jeopardy of life

or limb; nor shall be compelled in any criminal case to be a

witness against himself, nor be deprived of life, liberty, or

property, without due process of law; nor shall private

property be taken for public use, without just compensa-

tion.””

Amendment XIV:

**Section 1. All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are citizens

of the United States and of the State wherein they reside.

No State shall make or enforce any law which shall abridge

a Gon

the privileges or immunities of citizens of the United

States; nor shall any State deprive any person of life, liberty,

or property, without due process of law; nor deny to any

person within its jurisdiction the equal protection of the

laws.””

Amendment IX:

**The enumeration in the Constitution, of certain rights,

shall not be construed to deny or disparge others retained

by the people.”’

STATEMENT OF FACTS

The St. Louis Police Officers’ Association and several in-

dividual members of the St. Louis Police Department (ap-

pellants) brought this action for injunctive and declaratory

relief under 42 U.S.C. §1983 and 28 U.S.C. §2201, alleging that

certain provisions of the personnel regulations are unconstitu-

tional. The United States District Court for the Eastern District

of Missouri upheld the constitutionality of the provisions. On

appeal, the Eighth Circuit Court of Appeals held that the issues

presented to the District Court were not ripe for judicial deter-

mination.

The contested provisions are all found in §7.010, entitled,

‘Standards of Conduct.’’ These provisions and the constitu-

tional arguments made against their validity can be summarized

as follows:

Section 7.010(c) proscribes conduct ‘‘unbecoming to a

member of the Department.’’ Section 7.010(d) prohibits con-

duct ‘‘contrary to the good order and discipline of the Depart-

ment.’’ Section 7.010(e) prohibits any conduct ‘‘detrimental to

the public peace or welfare.’’ Appellants contend these provi-

sions are unconstitutionally vague because they contain no

guidelines as to what conduct is violative of the provisions and

— po

what conduct is not. Appellants are left to guess at what is

meant by ‘“‘unbecoming’’, ‘“‘good order’’, or ‘‘detrimental;”’

and are thus fearful of doing anything that might violate these

provisions.

Section 7.010(f) prohibits an officer from drinking alcoholic

beverages when off duty to an extent which would render him

**unfit for immediate duty.’’ Section 7.010(h) prohibits ‘‘[fjail-

ing to maintain good credit relations with creditors.’’ Ap-

pellants claim these provisions are unconstitutionally vague,

and also that they impinge on their right of privacy. The two

provisions leave to the police officers’ conjecture as to when he

has consumed too much alcohol, or exactly what is meant by

**good credit relations.” In addition, appellants feel these are

areas protected by their constitutional right of privacy.

Section 7.010(i) requires an officer to obtain permission of

the Police Board before accepting anything of value in settle-

ment from personal injury or property damages incurred in the

course of duty. Appellants allege that by not allowing police of-

ficers to settle their personal claims without permission of the

Police Board, appellants are denied their due process rights,

rights to their own counsel, and right to equal protection.

Section 7.010(n) proscribes leaving the city or county of St.

Louis for a period exceeding twenty-four hours without having

first obtained permission of the commanding officer. Ap-

pellants contend this provision violates their constitutional

rights to privacy and travel.

Section 7.010(q) prohibits an officer from leaving his

residence or place of confinement while on the sick list except to

obtain medical treatment or attention. Appellants claim this

provision invades a police officer’s right to freedom of move-

ment and right to privacy.

Section 7.010(w) subjects an officer to disciplinary action for

engaging in secondary employment without the permission of

~~ po

the Chief of Police. Appellants allege this provision is un-

constitutionally vague and overbroad.

Section 7.010(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. Appellants con-

tend this provision is unconstitutionally vague and unduly in-

terferes with their right of privacy.

The challenged provisions are applicable to all commissioned

members of the Department who may be disciplined by

punishments up to and including loss of pay, suspension or

dismissal for their violation.

Although none of the appellants in this action have been

disciplined under the provisions in issue, it was stipulated that

all police officers are subject to the provisions, and that in the

five year period prior to filing this lawsuit, twenty-four

members of the St. Louis Police Department had been disciplined

for violating §7.010(c), three for violating §7.010(d), five for

violating §7.010(e), two for violating §7.010(g), two for

violating §7.010(w), and three for violating §7.010(x).

The reasoning of the Eighth Circuit Court of Appeals for its

holding can be summarized as follows:

Appellants have failed to specify the kinds of activity that

they desire to engage in; therefore, the issues they raise are not

ripe for judiciable determination.

As to appellants’ vagueness claims, unless the court has

before it a vague application of the provisions, it will not look to

see if Lie provisions are vague.

_

REASONS FOR GRANTING THE WRIT

The Court In Holding The Issues Below Were Not Ripe for

Judicial Determination Acted In Conflict With Applicable

Supreme Court Decisions.

It is not a constitutional requirement that appellants be re-

quired to violate and await disciplinary action under the provi-

sions involved for the issues to be ripe for judicial determina-

tion. Doe v. Bolton, 410 U.S. 179, 188-189 (1973). In order for

there to be a judiciable controversy, it is necessary that the pro-

visions under attack operate directly against appellants and that

enforcement is likely to impose grave personal detriment. Pierce

v. Society of Sisters, 268 U.S. 510 (1925). Appellants’ injury can

not be contingent, it must be imminent and real. O’Shea v. Lit-

tleton, 414 U.S. 488, 494 (1974).

Doe v. Bolton, supra illustrates that appellant’s claims are

ripe for judicial determination. In Doe, Georgia’s criminal

abortion statutes were being challenged on constitutional

grounds by a woman who was denied an abortion under the

statutes, nine Georgis physicians, seven nurses, five clergymen,

and two social workers. One question that faced the Court was

whether the physicians presented a judiciable controversy. The

physicians involved never specified the activities that they

desired to engage in, but merely claimed that the statutes were

unconstitutional for vagueness, and because the statutes imper-

missably restricted the physicians right to practice their profes-

sion, and deprived them of due process. The Court held that the

physicians presented a judiciable controversy stating:

**The physician is the one against whom these criminal

statutes directly operate in the event he procures an abor-

tion that does not meet the statutory exceptions and condi-

tions. The physician-appellants therefore, assert a suffi-

ciently direct threat of personal detriment. They should

not be required to await and undergo a criminai prosecu-

tion as the sole means of seeking relief.”’

sa

Doe v. Bolton, supra at 188. The Court went on to say in Doe

that a key element which led to their conclusion was that the

Georgia criminal abortion statutes were not moribund. Jd.

Appellants’ claims in this case parallel those made by the

physicians in Doe. The police officer is the one upon v.*sm

these provisions directly operate, and in the event that any

police officer fails to meet the requirements of the provisions he

or she will be subject to punishment, including possible

dismissal. These provisions have been vigorously enforced in the

past, resulting in reprimands to fellow police officers. Ap-

pellants should not be forced to risk a similar fate in order to

challenge the constitutionality of these provisions. In short, the

injury to appellants is imminent and real.

The Eighth Circuit holds that for there to be a judiciable con-

troversy, a more concrete factual setting is needed than was pre-

sent in Doe. The court holds that appellants must specify the

kinds of activity that they desire to engage in. For example, if

appellants would wish to challenge the constitutionality of

§7.010(f), which prohibits an Officer from drinking alcoholic

beverages when off duty to an extent which would render him

‘unfit for duty,”’ their claim would have to read something like

this: ‘While off duty we desire to drink 5 3/4 beers with a gin

chaser.’’ Concerning appellants’ vagueness claims, the court

goes so far as to suggest that before this type of challenge can be

made, appellants must violate the provisions and be reprimanded

under them.

The reasoning of the Eighth Circuit is that because police 6/-

ficers may be subject to more restrictions than the average

citizen, a more specific factual setting is needed before ap-

pellants can challenge these provisions. The flaw in the court’s

reasoning is that it confuses the issues of ripeness with the

ultimate issue of whether or not the provisions are unconstitu-

tional. The demand for an even more concrete factual setting

with appellants’ vagueness claims rests with the court’s con-

fidence, that in the future, these provisions will not be applied

in a vague manner. The court in Bence v. Breier, 501 F.2d 1185,

(7th Cir. 1974), dispensed with this notion when it stated at page

1189 that: ‘ta vague regulation cannot be saved through pro-

spective proper application simply because the rule contains no

objective criteria for determining precisely what constitutes a

‘proper application’.’’

The court relies on United Public Workers v. Mitchell, 330

U.S. 75 (1947) for their holding that appellants did not present a

judiciable controversy. In Joseph v. United States Civil Service

Commission, 554 F.2d 1140 (Dist. of Col. 1977), the court

noted that the strict requirements for ripeness found in Mitchell

are not being followed by modern case law. The court in Joseph

stated: ‘‘that modern case law since Mitchell reflects a greater

judicial willingness to aid litigants faced with the necessity of

risking substantial harm in order to challenge the validity of

governmental action.’’ Joseph v. United States Civil Service

Commission, supra at 1151. In addition, the present situation is

distinguishable from that in Mitchell. Here there is concrete

evidence that the provisions have been enforced in the past

resulting in strict disciplinary action, whereas in Mitchell there

was no such evidence present.

~

CONCLUSION

For the foregoing reasons, this petition for a writ of certiorari

should be granted.

Respectfully submitted,

LONDON, GREENBERG & FLEMING

LAWRENCE J. FLEMING

C. JOHN PLEBAN

1600 Boatmen’s Tower

100 North Broadway

St. Louis, Missouri 63102

(314) 231-8700

Attorneys for Petitioner

APPENDIX

=.

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 80-1982

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,

Vv.

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.

Appeal from the United States District Court

for the Eastern District of Missouri

Submitted: June 18, 1981

Filed: October 1, 1981

Before ROSS, Circuit Judge, GIBSON, Senior Circuit Judge,

and ARNOLD, Circuit Judge.

GIBSON, Senior Circuit Judge.

The St. Louis Police Officers Association and several in-

dividual members of the St. Louis Police Department (ap-

pellants) brought this action for injunctive and declaratory

relief under 42 U.S.C. § 1983 and 28 U.S.C. § 2201 ef. 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 ra-

tional relation to any legitimate public interest. This is not a

class action suit.

A hearing was held on August 11-12, 198. 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 alcoholic

beverages when off duty to an extent which would render him

**unfit for immediate duty.”’

Subsection (h) prohibits ‘‘[flailing to maintain good credit

relations with creditors.”’

—_~ yn

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 ob-

tained 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 sccondary 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 af-

firm the judgment of the district court.'

Due process requires that a penal statute be ‘‘sufficiently ex-

plicit to inform those who are subject to it what conduct on

their part will render them liable to its penalties.”” Conally v.

General Construction Co., 269 U.S. 385, 391 (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.”’ Jd. at 393 (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

(1975). However, when administrative regulations such as those

applied to a police force are at issue, factors which are not rele-

vant 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 probiems presenied, iegisiatures 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 assess-

ment of the need to keep order.

Smith v. Goguen, 415 U.S. 566, 581 (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

(1976).

Vagueness and overbreadth are matters of degree and con-

text. See Broadrick v. Oklahoma, 413 U.S. 601, 615-16 (1973);

Bence v. Breier, 501 F.2d at 1188. The Supreme Court, in

Parker v. Levy, 417 U.S. 733 (1974), examined certain provi-

sions of the Uniform Code of Military Justice? and found that

? Articles 133 and 134 of the Code were challenged by Levy. Article

133 provides for the punishment of ‘‘conduct unbecoming an officer

and a gentleman,”’ while Art. 134 proscribes, inter alia, ‘‘all disorders

and neglects to the prejudice of good order and discipline in the armed

forces.”’

—

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.’’ Jd. at 756. 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 sec-

tion of a two and one-half million populated metropolitan

area. Their functions include riot control, traffic regula-

tion, 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. Jd. 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

wihhtG«a

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 with-

stand an attack on vagueness grounds, it does not follow

that the content is transferable to civilian police depart-

ment 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 ‘‘constitu-

tionally sufficient to withstand an attack on vagueness

grounds.”’’ Thus, the rule at issue had, of necessity, been un-

constitutionally vague.

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. 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 rights.’’ Garrity v. New Jersey, 385 U.S. 493,

500 (1967). To properly strike such a delicate balance requires

—_*

that the competing interests be crystallized into a form more

cognizable for decision than that now before us. There must be

a ‘“‘real and substantial controversy admitting of specific relief

through a decree of a conclusive character, as distinguished

from an opinion advising what the law would be upon a

hypothetical state of facts.’’ Aetna Life Insurance Co. v.

Haworth, 300 U.S. 227, 241 (1936).

The instant action is not a class action. The original plaintiffs

were seven individual police officers and one professional

association, the St. Louis Police Officers Association.

We can find no evidence in the record to support the Associa-

tion’s allegations either that it is unduly restricted or that its

function as an autonomous organization has been impaired by

the regulations. Testimonial evidence was presented by only

three of the individual plaintiffs. Two of those original plain-

tiffs have retired from the St. Louis police force and are no

longer subject to the regulations in issue. One of them was

dismissed from the case at the close of plaintiffs’ evidence.

None of the plaintiffs has ever been disciplined under the

regulations. The officers who testified did recall situations in

which they had been inconvenienced by the rules but none of

them articulated any protected activities from which they had

been deterred under the regulations.

One officer recalled that he had refused an offer for secon-

dary employment because he did not want to go through the

procedure that would have been necessary under the rules.

Another officer complained of having to go to his office every

time he wanted to leave the city or county. The third officer who

testified reported that he had been allowed to take his child to

an Out-of-state health clinic only on the condition that he bring

back a letter from the treating physician. In regard to the re-

quirement that officers receive permission to leave the city for

any period exceeding twenty-four hours, one officer reported

—_

that he had been forced on one occasion to alter his vacation

plans and another said that his vacation had cost him more

money than it otherwise would have. These are the only specific

examples given, in the record before us, of activities which have

been, in the past, actually affected by the regulations.

The officers posit that the rules, if carried to their limits,

might be enforced so as to unreasonably restrict the police of-

ficers’ constitutional rights. This is undoubtedly true. However,

this “‘hypothetical threat is not enought.’’ United Public

Workers v. Mitchell, 330 U.S. 75, 90 (1947). The United States

Supreme Court, in dealing with the issue of justiciability in

Federation of Labor v. McAdory, 325 U.S. 450, 461 (1944),

noted:

This Court is without power to give advisory opinions. It

has long been its considered practice not to decide abstract,

hypothetical or contingent questions, or to decide any con-

stitutional question in advance of the necessity for its deci-

sion, or to formulate a rule of constitutional law broader

than is required by the precise facts to which it is to be ap-

plied, or to decide any constitutional question except with

reference to the particular facts to which it is to be applied.

[Citations omitted.]

The Missouri Supreme Court has expressed its expectation, at

least in regard to the vagueness issue, that these police regula-

tions will be administered in a manner consistent with their

legitimate purpose. ‘‘We may legitimately assume that by

custom, usage and ‘experience’ a reasonable degree of ‘specificity’

has been afforded in the application of the regulations involved

here * * *.’’ Milani v. Miller, 515 S.W.2d 412, 418-19 (Mo.

1974). Unless we are presented with concrete evidence to the

contrary, we have no reason to doubt this construction by

Missouri’s highest court. ‘‘Although it is possible that specific

future applications * * * may engender concrete problems of

constitutional dimensions, it will be time enough to consider any

—"

such problems when they arise.’’ Seagram & Sons v. Hostetter,

384 U.S. 35, 52 (1966).

Embedded in the traditional rules governing constitu-

tional adjudication is the principle that a person to whom a

statute may constitutionally be applied will not be heard to

challenge that statute on the ground that it may con-

ceivably be applied unconstitutionally to others, in other

situations not before the Court. * * *

In the past, the Court has recognized some limited ex-

ceptions to these principles, but only because of the most

‘weighty countervailing policies.’

Broadrick v. Okiahoma, 413 U.S. at 610-11 (citiations omitted).

One of the “‘limited exceptions’’ is made to provide extra pro-

tection to first amendment rights. Jd. However, the officers

have not alleged, in specific terms, either that their first amend-

ment rights are in jeopardy or that they have been infringed.

Appellants allege that the broad sweep of the regulations

chills the exercise of their constitutional rights. They have not,

however, specified the kinds of activity that they desire to

engage in. ‘‘Allegations of a subjective ‘chill’ are not an ade-

quate substitute for a claim of specific present objective harm or

a threat of specific future harm * * *.’’ Laird v. Tatum, 408

U.S. 1, 13-14 (1972).

A federal court has no power to issue a judgment in a case

unless it involves an actual controversy between adverse parties

in an adversary proceeding. No exception is made for

declaratory judgments.’

* The Declaratory Judgment Act, 28 U.S.C. § 2201, expressly pro-

vides: “‘In a case of actual controversy within its jurisdiction * * * any

court of the United States, upon the filing of an appropriate pleading,

may declare the rights and other legal relations of any interested party

seeking such declaration, whether or not further relief is or could be

sought.’’ (Emphasis added.)

— A-10 —

‘[T]he federal courts established pursuant to Article III

of the Constitution do not render advisory opinions. For

adjudication of constitutional issues, ‘‘concrete legal

issues, presented in actual cases, not abstractions,’ are re-

quisite. This is as true of declaratory judgments as any

other field. United Public Workers of America v. Mitchell,

330 U.S. 75, 89, 67 S.Ct. 556, 564, 91 L.Ed. 754, 766

(1947). The difference between an abstract question and a

**controversy’’ contemplated by the Declaratory Judgment

Act is necessarily one of degree, and it would be difficult if

it would be possible, to fashion a precise test for determin-

ing in every case whether there is such a controversy.

Basically, the question in each case is whether the facts

alleged, under all the circumstances, show there is a

substantial controversy between parties having adverse

legal interests, of sufficient immediacy and reality to war-

rant the issuance of a declaratory judgment. Maryland

Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273,

61 S.Ct. 510, 511, 85 L.Ed. 826, 828 (1941).’ 22 L.Ed.2d at

117 and 118.

Golden v. Zwickler, 394 U.S. 103, 108 (1969).

In United Public Workers v. Mitchell, 330 U.S. 75 (1947), the

Supreme Court held that it could not adjudicate the claims of

federal employees that the Hatch Act, which prohibits federal

employees from engaging in certain political activities, was un-

duly restrictive. The Court found that the suit, with respect to

those employees who had not yet engaged in prohibited activity,

did not present a justiciable case or controversy. The Court

wrote:

It would not accord with judicial responsibility to ad-

judge, in a matter involving constitutionality, between the

freedom of the individual and the requirements of public

order except when definite rights appear upon the one side

and definite prejudicial interferences upon the other.

— A-ll —

Id. at 90 (footnote omitted).

Though the Supreme Court has relaxed somewhat its require-

ment that claimants must engage in prohibited activity in order

to present an actual! controversy, the injury still must be clearly

impending. Babbitt v. United Farm Workers National Union,

442 U.S. 289, 298 (1979); Regional Rail Reorganization Act

Cases, 419 U.S. 102, 143 (1974); Steffel v. Thompson, 415 U.S.

452, 459; Dombrowski v. Pfister, 380 U.S. 479, 486-89 (1965);

Pennsylvania v. West Virginia, 262 U.S. 553, 593 (1923).

The Supreme Court, in United Public Workers, supra,

to speculate about the kinds of activity the plaintiffs desired to

engage in and how serious the subsequent threat of enforcement

would be. 330 U.S. at 90. We likewise avoid speculation in the

instant case.

Appellants cite in their briefs to many cases where regula-

tions, with varying degrees of similarity to those at issue here,

were struck down as unconstitutional. However, not one of

those cases adjudicated claims which were made in the absence

of a concrete factual instance of enforcement as a framework

for the court’s decision.

We also wish to point out that appellants, in their briefs, have

in several instances recited an incorrect standard for review of

the regulations. For example, they urge that appellees must

show ‘‘a compelling state interest’’ for each of the regulations

and the appellees must provide evidence that the regulation at

issue protects that interest. Appellant’s brief at 21. They argue,

**The government is held to a strict standard in showing that

restrictions * * * must be related to the officer’s performance of

his duties.’’ Appellant’s brief at 22. They cite as authority the

case of Bruns v. Pomerleau, 319 F. Supp. 58, 65 (D. Md. 1970),

which held that ‘‘[iJn order to justify a state’s infringement, the

state has the burden of showing a compelling or sufficiently im-

portant government interest to justify the intrusion upon the

— A-12 —

constitutional right. * * * It is ‘[o}nly the gravest abuses, en-

dangering paramount interests [that] give occasion to permissi-

ble limitation.’ ”’

However, the standard for review of police regulations was

clarified in Kelley v. Johnson, 425 U.S. 238 (1976). The burden

of proof in this case would not be with the Police Commis-

sioners. The question that would now have to be asked is

‘‘whether [the plaintiffs] can demonstrate that there is no ra-

tional connection between the regulation, based as it is on the

county’s method of organizing its police force, and the promo-

tion of safety of persons and property.” Id. at 247. .

In summary, we hold that the dispute before us is not ‘‘ripe”’

for judicial resolution.

[D]ifferences of opinion or conflicts of interest must be

“*ripe for determination’’ as controversies over legal rights.

The disagreement must not be nebulous or contingent but

must have taken on fixed and final shape so that a court

can see what legal issues it is deciding, what effect its deci-

sion will have on the adversaries, and some useful purpose

to be achieved in deciding them.

Public Service Commission v. Wycoff Co., 344 U.S. 237,

243-44 (1952). Under the dictates of Article III of the United

States Constitution, we may not issue an advisory opinion in the

absence of a definite and concrete controversy.

Such opinions, such advance expressions of legal judgment

upon issues which remain unfocused because they are not

pressed before the Court with that clear concreteness pro-

vided when a question emerges precisely framed and

necessary for decision from a clash of adversary argument

exploring every aspect of a multi-faceted situation embrac-

ing conflicting and demanding interests, we have con-

sistently refused to give.

— A-13 —

United States v. Fruehauf, 365 U.S. 146, 157 (1961); see Cass

County v. United States, 570 F.2d 737, 739-41 (8th Cir. 1978).

In the situation here presented we are not dealing with the

public at large, but with a duly constituted police force that is

paramilitary in nature. As well stated in Kelley v. Johnson, 425

U.S. at 247:

The promotion of safety of persons and property is un-

questionably at the core of the State’s police power, and

virtually all state and local governments employ a uniformed

police force to aid in the accomplishment of that purpose.

Choice of organization, dress, and equipment for law en-

forcement personnel is a decision entitled to the same sort

of presumption of legislative validity as are state choices

designed to promote other aims within the cognizance of

the State’s police power. Day-Brite Lighting, Inc. v.

Missouri, 342 U.S. 421, 423 (1952); Prince v.

Massachusetts, 321 U.S. 158, 168-170 (1944); Olsen v.

Nebraska, 313 U.S. 236, 246-247 (1941). Having recogniz-

ed in other contexts the wide latitude accorded the govern-

ment in the ‘dispatch of its own internal affairs,’ Cafeteria

Workers v. McElroy, 367 U.S. 886, 896 (1961), we think

Suffolk County’s police regulations involved here are en-

titled to similar weight.

Again, we recognize that the regulations at issue here are cast

in broad terms. We also recognize that such breadth may lend

itself to excesses and arbitrariness in enforcement, but assume

that these regulations will, as a matter of legitimate governmen-

tal interest, be made more specific in their individual application

to concrete situations and thus be substantially limited in their

administration. No excesses have been demonstrated here. No

case or controversy has been pleaded. Therefore, we affirm the

judgment of the district court dismissing the action for the

reasons stated herein.

= Aié =

ARNOLD, Circuit Judge, concurring.

I think the complaint properly presents for adjudication the

claim that the challenged police regulations are unconstitutional

on their face. The St. Louis Police Officers Association, it

seems to me, is a proper party to assert this claim on behalf of

its members. I would affirm the judgment of the district court

dismissing on its merits the claim of facial unconstitutionality.

A state may demand of its police officers a more exacting stan-

dard of conduct than it could validly impose by criminal statute

on citizens in general. It is true, as the Court says, that our task

would be greatly aided if the controversy here were more con-

crete, but I would not hold that the courts are wholly without

power to consider the validity of these regulations on the pre-

sent record. In short, I would hold the regulations valid on their

face, without prejudice, of course, to any later claim that they

may be invalid as applied to particular persons or situations.

A true copy.

ATTEST:

CLERK, U. S. COURT OF APPEALS, EIGHTH

CIRCUIT.