Opposition Brief — Baron v. Meloni

—

Supreme Court, U.S.

FILED

NOV 27 1985

(4 Noy BSeF7BPAnion, st

licencia ieee iio

In The

Supreme Court of the United States

OCTOBER TERM, 1985

ROBERT G. BARON,

Petitioner,

vs.

ANDREW P. MELONI, INDIVIDUALLY AND AS SHERIFF

OF THE COUNTY OF MONROE, AND THE COUNTY OF

MONROE,

Respondents.

On Petition for a Writ of Certiorari

To the United States Court of Appeals

Second Circuit

BRIEF IN OPPOSITION OF RESPONDENT

COUNTY OF MONROE

Sienna

as

CHARLES R. VALENZA

Attorney for Respondent

39 West Main Street

Rochester, New York 14614

Telephone: (716) 428-5280

Nira T. Kermisch, Esq.

Of Counsel

ANE TING AR TRI DE ELT NERE LOE TARAS TOBA CAINE IN ORIN

Rochester, New (12105)

QUESTIONS PRESENTED

1. Whether two orders given to petitioner, a deputy sheriff,

prohibiting him from associating with the wife of a reputed ma-

fia leader violate petitioner’s First and Fourteenth Amendment

i ghts.

2. Whether orders given to petitioner not to associate with the

wife of a reputed mafia leader violate his rights to privacy.

er bok hua

Pees aN

i digs ae,

seg 4

en aa

ba ae

Os -

Serre eer

fis i Te al MSS a

ai pre es lg 1

iii

TABLE OF CONTENTS

Page

ci sied poseess bebe Wereccecccces i

Table of Authorities and Citations ................... v

ss ok needs bescdcacsccccecces l

I IIE so vcucccncecccoccccccccecess 6

Arguments Why the Writ Should be Denied ........... 6

Point I — The Orders Did Not Violate Petitioner’s

First and Fourteenth Amendment Rights......... 6

Point II — The Orders Did Not Violate Petitioner’s

ID iat candowwieveses bbeédud ecavees 14

Point III — The Decision Below Does Not Conflict

' with a Decision of Another Court of Appeals ..... 15

TABLE OF AUTHORITIES AND CITATIONS

Page

Arnett v. Kennedy 416 U.S. 134 ............. 0c cc cues 7

Broadrick v. Oklahoma 413 U.S. 601 ..............25. 8

Eisenstadt v. Baird 405 U.S. 438 ... 21... eee eee 14

Griswold v. Connecticut 381 U.S. 479 ... 2... 66... eee. 12,14

Kotay v. Fommeem 423 US. 2356 oo ccc ccccecedeeces 8, 15

Kerry v. Population Services 431 U.S. 678 at 684-685 ... 14

McAuliffe v. City of New Bedford 155 Mass. 216, 220 . . 7

RRCGRGR UV. HR TES Fes GBR oes ve sevesavevcbdesds 7

N.A.A.C.P. v. State of Alabama 357 U.S. 449 ......... 13

POD Se Fe CE hn heh ck cad ccccccccsaceess 12

Runyon v. McCrary 427 U.S. 160 (1976) .............. 13

U.S. Civil Service Comm. vy. Nat:eaal Assn. of Letter

Carriers AFL-CIO 93 S.Ct. 28860 ... 2.2... ee cee eee 7,8

Wilson v. Swing 463 F. Supp. 555 .... 2... cece cece 12

3» © ¢:.) + %. Bere 15, 16

oe PTT TT ere 9

York County Firefighters Assn. v. County of York Vir-

GE, GRE, Fae etn TURE OU sc ence dcccacecesuss 8

Zablocki v. Redhall 434 U.S. 374 at 385. ........0...... 14

In The

Supreme Court of the United States

OCTOBER TERM, 1985

ROBERT G. BARON,

Petitioner,

vs.

ANDREW P. MELONI, INDIVIDUALLY AND AS SHERIFF

OF THE COUNTY OF MONROE, AND THE COUNTY OF

' MONROE,

Respondents.

On Petition for a Writ of Certiorari

To the United States Court of Appeals

Second Circuit

a

~~

BRIEF IN OPPOSITION OF RESPONDENT

COUNTY OF MONROE

The respondent, County of Monroe, respectfully requests that

this Court deny the Petition for Writ of Certiorari, seeking re-

view of the judgment of the United States Court 0: Appeals for

the Second Circuit entered in this proceeding on August 12, 1985.

STATEMENT OF THE CASE

Petitioner, Robert G. Baron, was a deputy sheriff with the

Monroe County Sheriff's Office until his termination in 1980 fol-

lowing a hearing wherein he was found guilty of insubordina-

tion. The charges arose from two orders given to petitioner in

1978 not to associate with Linda Vaccaro, the then wife of a re-

puted mafia leader in Rochester, New York.

On April 20, 1978, petitioner’s patrol vehicle was seen in the

driveway of reputed mobster Angelo Vaccaro’s residence. At that

time his residence and his wife, Linda Vaccaro, were under sur-

veillance by the Organized Crime Task Force which observed the

petitioner at that house from 1:00 a.m. until 5:00 a.m., during

the hours when he was on duty.

The Task Force reported the matter to other law enforcement

officials who immediately contacted the Sheriff's office and an

investigation was conducted. When it was determined that Mr.

Baron did indeed spend a lengthy period of time, while on duty,

at the Vaccaro residence, he was ordered, on April 24, 1978, not

to associate with Linda Vaccaro. Petitioner claimed, at that time,

that he did not have any association with Linda Vaccaro, that he

did not know her or her last name, and only stopped at her house

to return a gold watch found at her workplace. In spite of the

order not to associate with Linda Vaccaro and his claim that he

did not know her, petitioner deliberately continued to associate

with her. He was observed on three separate occasions in her

company during the months of June and July of 1978. At that

time, a second order was given to him not to associate with her.

As a result of the disobeyance to the lawful orders, departmental

charges were filed agaiust him.

Petitioner then commenced a set of maneuvers which pushed

the hearing on the charges beyond the thirty day time in which it

was required to be heard, and then moved to dismiss the charges

on the ground that the hearing was not held within the required

time. Petitioner lost and took the matter all the way up to the New

York Court of Appeals which ruled against him on the ground

that he was the moving force behind the adjournments. At that

time he did not challenge the constitutionality of the orders given

to him.

While the matter was being litigated in the courts, petitioner

continued to associate with Linda Vaccaro and on April 13, 1979

a second set of charges was filed against him. Petitioner then

moved in court in an attempt to stay the proceedings and when he

lost he appealed, but never perfected his appeal. At that time

plaintiff also challenged, in State Supreme Court, the constitu-

tionality of ‘he orders given to him. Judge Pine ruled against him

and determined that the orders did not violate any of his rights.

‘While this set of charges was pending, it came to light that peti-

tioner was still associating and seeing Linda Vaccaro, who, on

March 22, 1980, was involved in an automobile accident while

driving petitioner’s Lincoln Continental. Thereafter, on March

24, 1980, a third set of charges was filed against Mr. Baron. A

hearing was then held on this last set of charges and once again

petitioner raised the argument, before the hearing examiner, that

the rules promulgated by the Sheriff were vague, broad and un-

constitutional and could not be enforced. The hearing officer ac-

cepted this argument as to two of the rules but rejected the argu-

ment that the orders, which prohibited petitioner from seeing

Linda Vaccaro, violated his civil rights. That was the second time

that the question of the constitutionality of the orders was raised,

argued and decided. Thereafter, the hearing officer found peti-

tioner guilty of insubordination. Sheriff Meloni then fired the

petitioner. Petitioner appealed from the decision of the Sheriff to

terminate him and also moved in court for an order to limit the

appeal to the question of the review of the termination of the peti-

tioner and to prohibit the arbitrator from ruling on the merits of

the case.

The court ruled that the review would be limited to the ques-

tion of the termination. The arbitrator found that the termina-

tion was proper, was neither arbitrary nor capricious, and was

based on good solid reasoning.

Petitioner then commenced this action in Federal Court. De-

fendants moved to dismiss, or in the alternative, for summary

judgment before Judge Telesca, and he granted the motion. Peti-

tioner then appealed and the Second Circuit reversed and re-

manded for discovery on the question of wer or not the or-

ders of April, 1978 and July, 1978 were valid in .Aarch of 1980.

Sheriff Meloni was deposed and gave, in great detail, the rea-

sons why the orders were valid.

Sheriff Meloni stated that petitioner's activities were of great

concern in the department and outside. The Sheriff testified that

in March, 1986, the investigation into the mob’s activities was

continuing, with the Sheriff's office actively participating, even

though the Task Force on Organized Crime had been disbanded.

(A-46) The Sheriff testified that Mr. Baron’s activities relative to

his relationship with Linda Vaccaro were affecting morale in the

department and that petitioner’s effectiveness was minimized as

he could not be assigned to certain duties as a result of this associ-

ation. He further testified that a deputy has an obligation not to

expose himself to associations with people who could exploit his

potential to gather information. (A-45)

Sheriff Meloni testified that even after Linda Vaccaro’s hus-

band had been convicted and incarcerated there was a reason for

the order that Mr. Baron not have a relationship with Mrs. Vac-

caro. The Sheriff explained that Linda Vaccaro was identified as

a person who had associations not only with, obviously, her hus-

band, Angelo, but other members of alleged organized crime in

this community, and that she continued to associate with alleged

mobsters and also visited her husband in jail during her associa-

tion with petitioner. (A-37) Sheriff Meloni stated that the associa-

tion was bringing discredit to the department and that Mr. Baron

was putting himself in a position of exploitation. The Sheriff tes-

tified that Mr. Baron had access to sensitive information. (A-38)

Petitioner did not dispute that the Monroe County Sheriff's

office was involved in investigations inio organized crime activ-

ity in 1980. Nor did he dispute that, as a deputy sheriff, he had

access to the criminal history files and the investigative files of

the Sheriff's office. (A 12-13)

Nor does petitioner dispute that, at the time of the accident in

March, 1980, Linda Vaccaro was still the wife of Angelo Vac-

-caro. Although Angelo Vaccaro had, at that time, just instituted

divorce proceedings against Linda, the two were legally married

until June, 1980. Petitioner does not dispute that Linda Vaccaro

was present at Angelo’s January, 1980, criminal trial, or that she

visited him during his incarceration.

The Sheriff also testified that he could not place petitioner in

the detective division or give him any investigative or organized

crime assignments. (A-13)

The respondents then brought a new motion for summary

judgment, which was granted by Judge Curtin. Petitioner ap-

Dealed and the Second Circuit affirmed on the decision of Judge

Curtin. Petitioner then filed this petition for Writ of Certiorari to

the United States Court of Appeals, Second Circuit.

SUMMARY OF ARGUMENTS

1. THE ORDERS DID NOT VIOLATE PETITIONER’S

FIRST AND FOURTEENTH AMENDMENT RIGHTS.

The government may regulate and restrict certain constitu-

tional rights of its employees. The regulations must meet a ra-

tional criteria to be upheld as constitutional.

2. THE ORDERS DID NOT VIOLATE PETITIONER’S

PRIVACY RIGHTS.

Right of privacy pertains to intimate family matters. Two

adults married to two others, respectively, do not fall under this

protection.

3. NO CONFLICT EXISTS BETWEEN THE CIRCUITS

REGARDING THESE QUESTIONS.

Petitioner attempts to rely on an Eleventh Circuit case to claim

that a conflict exists between the Second Circuit and the Eleventh

Circuit regarding the issues in this action. A review of the case

cited by petitioner clearly indicates that the Eleventh Circuit did

not decide the issues decided in this case.

ARGUMENTS WHY THE WRIT SHOULD BE DENIED

1. THE ORDERS DID NOT VIOLATE PETITION-

ER’S FIRST AND FOURTEENTH AMENDMENT

RIGHTS

Petitioner alleges that, as a deputy sheriff, he has the right to

free association with whomever he wishes and that an order

which limits his association violates his right to free association.

The Supreme Court recognized the right of government to reg-

ulate and restrict certain constitutional rights of its employees. In

the case of Meehan v. Macy 392 F.2d. 822, (cited with approval ‘n

Arnett Vv. Kennedy 416 U.S. 134), an employee who printed and

distributed defamatory Lampoon of Governor of Canal Zone

was subject to discharge for that conduct. The court, at page 832,

quoted Justice Holme’s ruling in the case of McAuliffe v. City of

New Bedford 155 Mass 216, 220 where he stated:

“The petitioner may have a constitutional right to talk poli-

tics, but he has no consiitutional right to be a policeman.”

The court in the Meehan case stated at 832:

“Courts are increasingly re-examining and considering the

issue whether and to what extent the Government’s preroga-

tive to employ or discharge permits it to regulate conduct of

its employees that would, in the absence of the employment

relationship, be »rotected from interference by the First

Amendment.” '

The court then continued:

“Government employees do, to some extent, have ‘lesser

rights’ than others have under the constitution, since they

may be required to suspend or refrain from certain activities

(e.g. political campaigning) that are embraced within the

constitutional rights of others, when such activities are rea-

sonably deemed inconsistent with their public status and

duties.”

It is not only important that government and its employees in

fact avoid practicing political activities, but it is also critical that

they appear to the public to be avoiding it, if confidence in the

system of representative government is not to be eroded to a di-

sastrous extent. United States Civil Service Commission v. Na-

tional Association of Letter Carriers AFL-CIO 93 S. Ct. 2880,

2890.

Justice White stated in upholding the constitutionaiity of the

Hatch Act, which bars federal employees from participating in

any political activity, a strong restriction on their First Amend-

ment right:

“Neither the right to associate nor the right to participate in

political activities is absolute in any event.”

In the case of York County Firefighters Assn. v. County of

York Virginia, et al. 589 F.2d. 775 (1978) a regulation prohibiting

belonging to a union by supervisors in a fire department was up-

held by the court as constitutional and the court stated at 778:

“. . a first amendment right to associate may be validly

limited where the limitation is necessary to a substantial and

legitimate state interest. An efficient fire department is a le-

gitimate and substantial interest because of the need of fire-

fighters to act quickly and efficiently . . . and the limitation

on membership, is necessary in order to forestall a division

of the supervisors loyalty between the union and their em-

ployer.” (emphasis supplied)

The court also found that the supervisors could belong to other

unions which would not create the problems cited.

In our case it is obvious that association with the wife of a re-

puted mob leader can create a conflict of interests and can have a

devastating effect on the public’s confidence in the department

and create a conflict of interests between the deputy and the de-

partment. !

In Kelley v. Johnson 424 U.S. 238, a regulation regulating hair

length of police officers, was upheld by the court on the ground

that:

“‘More recently, we have sustained comprehensive and sub-

stantial restrictions upon activities of both federal and state

employees lying at the core of the First Amendment. Civil

Service Commission v. Letter Carriers 413 U.S. 548; Broad-

rick v. Oklahoma 413 U.S. 601. If such state regulations may

survive such challenges based on the explicit language of the

First Amendment, there is surely even more room for re-

strictive regulations of state employees where the claim im-

plicates only the more general contours of the substantive

liberty interests protected by the Fourteenth Amendment.”

(Id 245)

In the Kelley case the court suggested that the state may have a

greater regulatory power over the activities of its police officers

by virtue of their special paramilitary nature, than the state

would have over its other employees. (at page 248-249)

The Kelley court established a rational criteria to be applied in

determining the constitutionality of the challenged orders rather

than a compelling state interest. Thus, if the orders are found ar-

bitrary it would constitute a deprivation of constitutional rights,

‘but if found to be rational, would be upheld as constitutional.

See also Yonker v. Gully $36 F.2d. 184.

In our case, the petitioner, a deputy sheriff, is challenging or-

ders forbidding him to associate with the wife of a leader of a

mafia faction involved in serious crimes, who was under surveil-

lance and charged with serious crimes and whose activities ap-

peared as headlines in the local newspapers.

The pvsposes of the challenged regulations are, among others:

(1) to insure public confidence in members of its law enforcement

body by avoiding the appearance of having deputy sheriffs ap-

pear to be conspiring with criminals, whether directly with the

criminals or through their close relatives; (2) to prevent exploita-

tion of the deputies; (3) to prevent the temptation to deputy sher-

iffs to look the other way when their criminal friends or their

friends’ relatives violate the law; (4) to prevent the temptation

and opportunity for deputy sheriffs to take bribes from crimi-

nais, either directly or through their close relatives; (5) to pre-

serve the integrity and effectiveness of the criminal judicial sys-

tem by preserving the credibility of deputy sheriffs’ testimony at

10

criminal trials; (6) to preserve the integrity of the department and

the individual officers therein; (7) to promote confidence by the

public in the Sheriff's office; and (8) to avoid any appearance of

impropriety in the Sheriff's office.

The purposes of the challenged orders rebut any claim that the

regulations are not rationally connected to the legitimate objec-

tives they seek to obtain. The regulations are designed to main-

tain an uncorrupt police force and to maintain public confidence

in its police force, to avoid the appearance of an impropriety on

the part of the police officers, and to prevent a situation where a

deputy may find himself in a position of conflict of interests, or

subject to pressure to provide sensitive information to his

friends.

The same reasoning applied to also and in particular, in 1980.

At that time, Sheriff Meloni took office and charge of a sheriff's

department which had just gone through a series of two years of

headlines in newspapers, in terms of alleged improprieties and

wrongdoings. Many deputies wanted to know what was going on

with Mr. Baron and why he was not being terminated. There was

a general consensus in the organization that things were moving

somewhat slowly with Mr. Baron. (A-44)

Sheriff Meloni testified as to what happened in the department

just prior to his taking over. He stated (A 55-58):

A. Well, as you know, the depariment had done a won-

derfnl job in bringing a lot of the alleged mobsters to trial

and conviction, and part of the process was some alleged

tampering with evidence, and that brought the beginning of

a series of allegations against the department, and it went

downhill from there: three deputies had been arrested for

burglary; another deputy had been arrested for stolen hub-

caps; there were stories and allegations about improprieties

as it related to how the mobsters who were in custody, fed-

eral witness custody in the jail, were handled; missing prop-

11

erty. This series went on and on by the Gannett press about

all of the kinds of things that were going on in the Sheriff's

Department.

Q. And that finally came to a head in what year?

ii A. In — It started in ’77; came to a head during the elec-

tion, obviously, of ’79, politically speaking anyways, and —

Q. So between ’77 and seventy — ’80.

A. °79.

Q. (continuing) — and December of ’79, all this —

A. Right, the headlines were — acknowledgements of al-

leged improprieties were headlining the Gannett press every

day. That took a terrible, terrible toll on the organization.

There was a great deal of distrust; our self-worth, our self-

image went to heli, and I took over, you know, a psychologi-

cally depressed organization after such a thing, but it was —

Q. Did you vow to —

A. My charge was and my campaign theme was to return

credibility and remove the cloud. And certainly, you know, I

—- I think, when you tatk about winning or losing, I didn’t

win the election; I think my predecessor lost it, and I think

that’s a better word to describe what happened.

Q. Your concern was to have a department that would be

A. — as clean as a hound’s tooth and no corner cutting.

One of the things that I have told every class of deputies that

I’ve ever recruited and hired since 1968 was basically that

f they are deputy sheriffs 24 hours a day; that I expect their

off-duty behavior to be as honorable and with as much in-

t tegrity, which is obvious to the community, as when they’re

on duty eight hours; that there’s no distinction between off-

duty and on-duty time as it relates to the image and espe-

iia alii

12

cially the perception they give the public. That speech I have

given to every sheriff's deputy, whether he be civil, jail or

police bureau, since I’ve been an undersheriff and handled

recruiting. And in that sense —-

Q. Was that speech also given to Deputy Baron?

A. Absolutely.

Q. And he was aware of it?

A. Absolutely.

Thus, the petitioner knew, as a condition of employment, that

his behavior off duty must also be beyond reproach.

The question also remains whether petitioner, who was mar-

ried at the time, had a constitutional right to “run around” with

Linda Vaccaro, who was married at that time, and whether such

right is a constitutionally protected right, and whether such right

would be a protected right even had they not been married to oth-

ers. In the case of Wilson v. Swing 463 F. Supp 555, two police

officers, a male and a female, were having an extra-marital af-

fair, and were directed not to see one another. They moved in

court alleging that their First Amendment rights were being vio-

lated. The court stated at 563:

“The court found that adulterous conduct may be restricted

as it casts a poor light on the department as a whole; the mo-

rale and discipline within the department could suffer as a

result of community disapproval. Adultery is not protected

by First Amendment guarantee of freedom of free associa-

tion (see Griswold v. Connecticut 381 U.S. 479; Poe v. Ull-

man 367 U.S. 497) nor by the Fourteenth Amendment.”

The courts have recognized the First Amendment right to en-

gage in association for the advancement of beliefs and ideals.

The right is protected because it promotes and may well be essen-

a

13

tial to the ‘effective advocacy of both public and private points of

view particularly controversial ones’ that the First Amendment is

designed to foster. N.A.A.C.P. v. State of Alabama 357 U.S. 449;

Runyan v. McCrary 427 U.S. 160.

In our case it is obvious that the association between Mr. Baron

and Mrs. Vaccaro was for purposes other than the exchange of

political or ideological ideas. Nor is petitioner claiming thai the

orders in any way inhibited him from joining with others to pro-

mote some psychological, political, scientific, cultural or reli-

gious beliefs. He was seeking instead the right to consort socially

and for other reasons perhaps with an individual whom he knew

had been the subject of police investigations and surveillance and

who has been for many years, even prior to his beginning his as-

sociation with her, associated with various leading mafia figures.

Such a right is not encompassed within the First Amendment

right of free association.

Petitioner has attempted on several occasions to interpose his

marriage, in July 1980, to Linda Vaccaro as a basis to his allega-

tions of interference with that relationship. However, until June

of 1980, long after the termination of petitioner from employ-

ment, Mrs. Vaccaro was still a married woman and, therefore,

could not be married to petitioner even if we believe the claim

that it was in March of 1980 that papers were served on Mrs. Vac-

caro to dissolve the marriage. From 1978 until June 1980, she was

married to another, as was Mr. Baron during part of that time. It

should be noted that in 1978 Mr. Baron specifically claimed that

he did not know who Linda Vaccaro was, that there was no rela-

tionship between them and that the incident on April 20, 1978 at

her home where he spent several hours, was for returning a gold

watch that she allegedly lost (even though it had never been re-

ported as lost). Strange as it may seem, even though Mr. Baron

did not know who she was, nor allegedly had any interest in her,

he still refused to obey lawful orders given to him and continued

14

to see this woman whom he “did not know” according to him,

and all that during a period of time when active efforts were be-

ing made to eliminate the mafia in the County of Monroe.

2. THE ORDERS DID NOT VIOLATE PETITION-

ER’S PRIVACY RIGHTS

The United States Supreme Court case wherein a constitu-

tional right of privacy was established was Griswold v. Connecti-

cut 381 U.S. 479. However, subsequent U.S. Supreme Court cases

have indicated that the right of privacy, as established in

Griswold, is a right to be free from government intrusion in inti-

mate matters pertaining to the family. Eisenstadt v. Baird 405

U.S. 438; Zablocki v. Redhali 434 U.S. 374 at 385; Kerry v. Popu-

lation Services 431 U.S. 678 at 684-685.

In the case at bar, the activity petitioner alleges is protected by

right of privacy, is his association, as a deputy sheriff, on or off

duty, with an individual whom petitioner knew to be the wife of a

leading mafia figure. Such activity is not an intimate family mat-

ter and is, therefore, not accorded constitutional protection un-

der the right of privacy.

It is true that petitioner eventually married Linda Vaccaro, but

such event took place years afte: the orders were issued and long

after he was terminated. Furthermore, by petitioner’s own ad-

mission, at the time the association with Linda Vaccaro began

both he and Linda Vaccaro were married to two different peopie.

Linda Vaccaro was attempting to reconcile with her husband and

petitioner claimed that he did not know who she was and had no

close relationship with her except for a mere acquaintanceship.

At the time the last set of charges was filed against petitioner,

Linda Vaccaro was still married to her mobster husband and,

therefore, no family relationship existed between petitioner and

Mrs. Vaccaro. The orders of 1978 were given at a time when nei-

15

ther petitioner, nor his wife, by their own admissions, thought of

being married and the violation and insubordination of the peti-

tioner took place continuously, over a three year period, when he

was not married to Linda Vaccaro, and when neither one of them

was free to marry the other. Thus the fact that in July of 1980,

long after petitioner was terminated, petitioner and Linda Vac-

caro were married does not create a privacy right violation. There

‘ must be in existence a family relationship at the time the alleged

violation of rights occurs.

But, even if the association with the wife of a leading mobster

is an activity that falls within the protection zone of privacy, the

petitioner must show that the order and regulations at issue are

arbitrary and irrational as per the test set forth in Kelley v. John-

son 425 U.S. 238 so as to create a violation of First and Four-

teenth Amendment rights of a government employee. This he

failed to do. Sheriff Meloni’s testimony, on the other hand,

clearly established, without contradiction, that the orders were

rational and even had compelling reasons, not only at the time

they were issued, but also in March of 1980 when petitioner was

charged with insubordination, which he admits.

3. THE DECISION BELOW DOES NOT CON-

FLICT WITH A DECISION OF ANOTHER

COURT OF APPEALS

Petitioner claims that the Second Circvit’s decision conflicts

with the decision adopted by the Eleventh Circuit in the case of

Wilson v. Taylor 733 F.2d. 1539. Petitioner claims that in that

case the court held that a police officer’s association with the

t woman he was dating was a constitutionally protected freedom

of association.

Petitioner’s interpretation of that case is erroneous. The Elev-

enth Circuit, in footnote 3 at page 1544, specifically stated that

a

16

their holding was a narrow one and that they do not hold that a

law enforcement officer may never be fired because of associa-

tions with others.

The court itself distinguished between the case of Wilson v.

Taylor and other cases by stating that in the Wilson case the City

of Winter Park made the only argument that dating was not pro-

tected under the First Amendment freedom of speech provision,

and thus the court found that dating in general is a protected

right.

The court stated that the City did not make the argument that

even if dating were protected under the freedom of association

provision of the First Amendment, a law enforcement officer’s

rights under that provision could be curtailed due to the nature of

police work. The court specifically stated:

“We choose not to render an advisory opinion on what con-

duct would be sufficient for termination of a police officer

who associates with certain felons, indicted individuals,

suspects, or their relatives.” (p. 1545)

Thus, it is clear that the Wilson court, did not address the issue

which is central to our case, namely whether a police officer may

date the wife of a mobster, either before or after the mobster’s

conviction, when the wife keeps in close touch, not only with the

husband, but also with other reputed organized crime members.

Thus, it is clear that there is no conflict between the two circuits

and petitioner’s reliance on Wilson is misplaced.

17

CONCLUSIONS

The Second Circuit upheld the decision of Judge Curtin, who,

based on Sheriff Meloni’s testimony, which was uncontradicted,

found that based on the facts in this particular case the orders

given to petitioner not to associate with the wife of a mafia leader

‘were reasonable at the time he was brought up on charges for the

third time for insubordination. Inasmuch as Sheriff Meloni’s tes-

timony was not contradicted and the orders were found reason-

able, the Second Circuit was correct in affirming the decision.

The Second Circuit's decision applies to narrow circumstances

and to specific facts, but even if its application was broad, it does

not create new law as there are numerous decisions which have

held that police officers behavior off duty may be curtailed and

no conflict arises between the various circuits on this question.

Based on the above, it is respectfully submitted that the Peti-

tion for a Writ of Certiorari should be denied.

CHARLES R. VALENZA

Monroe County Attorney

NIRA T. KERMISCH

Deputy County Attorney

(Counsel of Record)

Attorney for Respondent