Petition for Writ of Certiorari — Daniels v. City of Arlington
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1 Supreme Court, U.S.
as FILED
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01 187 JUL 302008
IN THE
SUPREME COURT OF THE UNITED STATES
*
GEORGE DANIELS,
Petitioner,
V.
CITY OF ARLINGTON, TEXAS AND THERON BOWMAN, CHIEF
OF POLICE, ARLINGTON, TEXAS,
Respondents
*
On Petition for Writ of Certiorari to the
United States Court of Appeals for the Fifth Circuit
e
PETITION FOR WRIT OF CERTIORARI
e ‘
James A. Pikl John W. Whitehead
(Counsel of Record) Steven H. Aden
JAMES A. PIKL, P.C. THE RUTHERFORD INSTITUTE
P.O. Box 2939 1445 East Rio Road
McKinney, Texas 75070 Charlottesville, Virginia 22901
Telephone: (214) 544-7000 Telephone: (804) 978-3888
July 30, 2001
'
segs arenes os oe 6 ae
QUESTIONS PRESENTED FOR REVIEW
A General Order of the Police Department of Arlington, Texas
prohibits officers from wearing symbols on their uniforms unless the
symbol is approved by the Chief of Police in his personal,
unfettered and unreviewable discretion. Sgt. George Daniels, a
highly-decorated 14-year veteran of the force, chose to wear a tiny
gold cross on his uniform shirt and asked the Chief for approval.
Although he had allowed and even encouraged numerous other
ormaments and pins to be worn in the past, the Chief refused to
allow the cross. Daniels continued wearing the cross and was fired
for insubordination. _The Fifth Circuit held the General Order
constitutional and found that Daniels’ firing did not violate his First
Amendment rights of free speech, association or freedom of
religious expression. Petitioner presents the following questions:
1. Is the Pickering standard for determining the existence and
scope of a public employee’s right of free speech applicable to
symbolic religious speech?
2. Is the Pickering standard applicable where a supervisory
official enjoys unfettered discretion to censor or permit any form of
symbolic speech by an employee of his department, including
matters of “public concern” such as religious speech?
3. Does the “incidental effect” test of Oregon Employment
Div. v. Smith apply to a claim of religious discrimination in
government employment, where the presence of free speech, free
exercise and right of association claims amounts to a “hybrid right,”
and where numerous exemptions to a uniform policy are granted for
non-religious reasons, making administrationof the order a “system
of individualized exceptions?”
-ii-
PARTIES TO THE PROCEEDINGS
George Daniels, Petitioner _
Represented by James A. Pik
JAMES A. PIKL, P.C.
P.O. Box 2939
McKinney, Texas 75070-1408
Telephone: (214) 544-7000
Steven H. Aden
THE RUTHERFORD INSTITUTE
P.O. Box 7482
Charlottesville, Virginia 22906-7482
Telephone: (804) 978-3888
City of Arlington, Texas, Respondent
Theron Bowman, Chief of Police, Respondent
Represented by Frank Waite
Assistant City Attorney
Arlington, Texas
200 West Abram Street
Arlington, Texas 76010-7103"
Telephone: (817) 265-3311
There are no known parent or subsidiary entities to these
parties.
TABLE OF CONTENTS
Questions Presented for Review ....................... i
Sr ae ii
I ise inca cau bbb aswdlereuke rears Vv
Petition for Writ of Certiorari ...................00005e l
Opinions and Orders Below ... 0.0.2.0... cccccccccccce l
IEE nt boo cd knee occ e diced ovedacous l
Constitutional and Statutory Provisions .................. 2
GETS Sao ea earning Pe 3
EN Cis at and Cu'stotadew che lice Lares ce 3
REET SRS eye Bi venting cane 4
IIS Gaya onc osd nc cou eccue bes aka Bis 8
Reasons for Granting the Writ......................... 9
I. CERTIORARI SHOULD BE GRANTED TO RESOLVE
A SPLIT AMONGTHE CIRCUIT CouRTS OVER THE
APPROPRIATE STANDARD FOR DETERMINING
WHETHER SYMBOLIC SPEECH BY A PUBLIC
EMPLOYEE “MATERIALLY AND SUBSTANTIALLY
INTERFERES” WITH THE EMPLOYER’S FUNCTION .... 9
-iv-
II. THE PETITION SHOULD BE GRANTED TO RESOLVE
A CONFLICT AMONGTHECIRCUITS RELATINGTO
THE APPLICATION OF THE OREGON EMPLOYMENT
Div. v. SMITH “NEUTRALITY” REQUIREMENT TO
MUNICIPAL PROHIBITIONS ON SYMBOLIC
RELIGIOUS EXPRESSION BY UNIFORMED PUBLIC
SN a eridcr cn ai od 6 ok ep 5 Gani ok, 14
Ill. THE PETITION SHOULD BEGRANTED TO ADDRESS
THE FIFTH CIRCUIT COURT. OF APPEALS’
RADICAL AND CONSTITUTIONALLY UNTENABLE
DECLARATION THAT THE EXPRESSION OF ONE’S
RELIGIOUS FAITH IS NOT A “MATTER OF PUBLIC
CONCERN” WITHINTHEMEANINGOF COMNICK V.
IV. THE PETITION SHOULD BE GRANTED TO ADDRESS
THE IMPORTANT AND NOVEL QUESTION OF
WHETHERA MUNICIPALPOLICYTHAT GRANTSA
SUPERVISORY OFFICIAL UNBRIDLED DISCRETION
TO CENSOR ANY FORM OF SYMBOLIC SPEECH BY
AN EMPLOYEE OF His DEPARTMENT, INCLUDING
“PUBLIC CONCERN” SPEECH, Is
UNCONSTITUTIONALLY OVERBROAD ............ 22
-V-
TABLE OF CITED AUTHORITIES
Case Authority
Abel v. Town of Orangetown, 759 F.Supp. 161
PEDIC. 1 Eee 25
Altman v. Minn. Dept. of Corr., 251 F.3d 1190 (8"
CHENG 6 SIGE RES ee 19, 20
Board of Educ. of Westside Comm. Schs. v. Mergens,
Po ee Fe ee eS ere re re re re 21
Brown v. Polk County, 61 F.3d 650 (8™ Cir. 1995) ...... 20
Burnside v. Byars, 363 F.2d 744 (5™ Cir. 1966) .......... 9
Doak ¢. Gove, 531 US. TEGO cienees eaneeivssizes 27
Cantwell v. Connecticut, 310 U.S. 296 (1940) ....9, 10, 12
Capitol Square Rev. & Advis. Bd. v. Pinette, 510
U.S. 1307 (1993) ...... endRonepeeecasbgenscares ai, de
Celotex Corp. v. Catrett, 477 U.S. 317 (1986) ......... 18
Church of the Lukumi Babalu Aye, Inc. v. Hialeah,
WES Tc) er ere rea ree ate y Pee re 15-17
City of Boerne, Texas v. Flores, 521 U.S. 507 (1997) .... 15
-Vi -
City of Lakewood v. Plain Dealer Publishing Co.,
Gap Lie COPED «606405 a0kenesackbebsdesess 24-26
Connick v. Myers, 461 U.S. 138 (1983) ........... passim
Daniels v. City of Arlington, Texas, et al., 246
Fg Se rrr rr passim
Dunn v. Carroll, 40 F.3d 287 (8 Cir. 1994) ........ 10, 11
Dwen v. Barry, 483 F.2d 1126 (2™ Cir. 1973) .......... 12
Florida Star v. B.J.F., 491 U.S. 524 (1989) ............ 17
Fraternal Order of Police Newark v. City of Newark,
170 F.3d 359 (3™ Cir. 1999), cert den., 528 U.S. 817
ry te Rp pany as 16, 17
Freedman v. Maryland, 380 U.S. 51 (1965) ........ 10, 12
FW/PBS, Inc. v. City of Dallas, 493 U.S. 215
(EDIE 0.00465 ¢nuyedac¥ames bieabseaeenas 4, 23-24
Good News Club v. Milford Central School, 121
DAR, BOW GN ia tied ca cock einbanel teens 21, 22
Green v. Polunsky, 229 F.3d 486 (5® Cir. 2000) ........ 16
Hernandez v. Commissioner, 490 U.S. 680 (1989) ...... 12
Lamb's Chapel v. Center Moriches Union Free Sch.
EID... Fa CB. TORUQGOND 0 wine vedececivsewedes 21,22
-Vii-
Leonard v. City of Columbus, 705 F.2d 1299 (11" Cir.),
cert. den., 468 U.S. 1204 (1984) ..........205-- eee 11
Ohio Citizen Action v. City of Seven Hills, 35
F.Supp.2d 575 (N.D. Ohio 1999) ..... 6.6... eee eee 25
Olmstead v. United States, 277 U.S. 438 (1928) ........ 26
Oregon Employment Div. v. Smith, 494 U.S. 872
1. PAP errr yor or rrrerrrrret rere passim
Pickering v. Bd. of Educ. of Will Township,
391 U.S. SE3 (IDES) 2. cc ccccdccccccccscccesces passim
Rankin v. McPherson, 483 U.S. 378 (1987) ...... 12, 13, 20
Rosenberger v. Rectors & Visitors of the Univ. of
Virginia, 515 U.S. 819 (1995) ..........-5055 19, 21, 22
Rutan v. Republican Party, 497 U.S. 62 (1990) ......... 26
Saia v. New York, 334 U.S. 558 (1948) ............ 25, 26
Shahar v. Bowers, 114 F.3d 1097 (11™ Cir. 1997) ....... 20
Summum v. Callaghan, 130 F.3d 906 (10" Cir. 1997) ... 25
Tinker v. Des Moines ISD, 393 U.S. 503 (1969) ......... 9
Tucker v. California Dep't of Education, 97 F.3d 1204
OO” Cie. 1GGG) co cacvscdedeccccccccccccsceseeds 12, 19
-Vili-
United States Department of Justice v. F.L.R.A., 955
PG ID ws aso Netceu sen cddd 2edecodcs 20
United States v. Nat'l Treas. Employees’ Union, 513
PN: 6 60s n5 06s cdediadvshdcetaiey th0«KKe 19
Vojvodich v. Lopez, 48 F.3d 879 (5" Cir. 1995) ..... 11,12
Waters v. Churchill, 511 U.S. 661 (1994) ....... 10, 11, 14
Widmar v. Vincent, 454 U.S. 263 (1981) ........... 21, 22
Constitutional Provisions, Statutes and Rules
UNITED STATES CONST. AMEND.I .................. 2,8
UNITED STATES CONSTITUTION, AMEND. XIV ........... 8
The Civil Rights Act of 1871, 42 U.S.C. § 1983......... 3,8
Title VII of the 1964 Civil Rights Act, 42 U.S.C. §
BOI, o vviicne via0 4s Cb ba twntin dhe ch 4, 8,9
ae Oe: | TRO is eS AM cstleds i tite 2
Be Uh, GONE id bcacdccnbck in dc bE A BE 8
PUD. R. Ase. PROC: GOIN 5 fo 6s Seed Cet d vu : 2
POA, Sis 6658s sok CHAS hse ks AK 18
Ss
~ix-
LOCAL RULE INTERNAL OPERATING PROCEDURE FOR
THE FIFTH CIRCUIT, LOCAL RULE 35 ................200. 2
SUPREME COURT RULE 10(a).... 0.2.0... cee ceeu. 11, 16
ag Ry 5 nee 2
TEXAS CONSTITUTION, Article I], §3 ........... oe 8
TEXAS CONSTITUTION, Article I, § 3a .................. 8
TEXAS CONSTITUTION, Article I,§6................05. 8
TEXAS CONSTITUTION, Article I,§8 ................405. 8
Texas Commission on Human Rights Act, TEXAS
LABOR CODE ANN. § 21.001 ef seq. ..............00 000 8
PETITION FOR WRIT OF CERTIORARI
TO THE HONORABLE CHIEF JUSTICE AND
ASSOCIATE JUSTICES OF THE SUPREME COURT OF
THE UNITED STATES:
GEORGE DANIELS respectfully petitions this Honorable
Court for a writ of certiorari to review the decision of the United
States Court of Appeals for the Fifth Circuit in Daniels v. City of
Arlington, Texas, et al., decided on April 9, 2001 and reported
at 246 F.3d 500, affirming the decision of the United States District
Court for the Northern District of Texas that granted summary
judgment in favor of Respondents as to all claims and all parties.
OPINIONS AND ORDERS BELOW
The opinion of the United States Court of Appeals for the Fifth
Circuit in Daniels v. City of Arlington, dated April 9, 2001, is
reported at 246 F.3d 500 and set forth m Appendix A. The
unreported order of the Fifth Circuit denying reconsiderationand en
banc review, dated May 1, 2001, is set forth in Appendix B. The
unreported memorandum opinion of the United States District
Court for the Northern District of Texas, granting summary
judgment to Respondents, dated October 6, 2000, is set forth in
Appendix C. The unreported memorandum opinion of the District
Court denying partial summary judgment to Petitioner, dated
September 21, 2000, is attached as Appendix D. The unreported
Judgment of the District Court, dated October 6, 2000, disposing
of all claims as to all parties hereto, is attached as Appendix E.
JURISDICTIONAL STATEMENT
The decision of the United States Court of Appeals for the Fifth
Circuit was entered on April 9, 2001. Appendix (“App.”) at Al.
ai ty |
2
A petition for rehearing en banc was considered as a petition for
reconsideration and overruled by the FifthCircuit on May 1, 2001."
Thus, Petitioner had until July 30, 2001 to file this Petition.
The opinion and Final Judgment of the District Court were
entered on October 6, 2000. The Final Judgment disposed of all
claims and all parties to the proceeding below, and hence
constituted a final judgment within the meaning of FeD. R. APP.
Proc. 4(a)(1)(A). Timely Notice of Appeal was filed by Petitioner
on October 13, 2000.
The Supreme Court has ‘pilictiges to review the judgment in
question on wnt of certiorari n accordance with 28 U.S.C. §
1254(1).
CONSTITUTIONAL AND STATUTORY PROVISIONS
UNITED STATES CONST. AMEND. I, Freedom of Speech, Press
and Association:
Congress shall make no law respecting anestablishment
of religion, or prohibiting the free exercise thereof; or
abridging the freedom of speech, or of the press; or the
right of the people peaceably to assemble, and to petition
the Government for a redress of grievances.
' Under SUPREME COURT RULE 13.3, the Fifth Circuit treats
petitions for rehearing en banc as petitions for rehearing. LOCAL
RULE INTERNALOPERATING PROCEDURE FOR THE FIFTH CIRCUIT,
LOCAL RULE 35, Handling of Petition by the Judges; Panel Has
Control: “A petition for rehearing en banc is treated as a petition for
rehearing by the panel if no petition is filed.”
3
42 U.S.C. § 1983, Civil action for deprivation of rights:
Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any State or
Territory or the District of Columbia, subjects, or causes to
be subjected, any citizen of the United States or other
person within the jurisdiction thereof to the deprivation of
any rights, privileges, or immumities secured by the
Constitution and laws, shall be liable to the party injured in
an action at law, suit in equity, or other proper proceeding
for redress....
STATEMENT OF THE CASE
Introduction.
Sergeant George Daniels, a highly-decorated sergeant in the
Arlington Police Department, wanted to wear a tiny gold cross on
his uniform shirt as a symbolic statement of his Christian beliefs.
Daniels requested that the Chief exercise his discretion to allow
Daniels to wear his cross pin, as he had for several other non-
religious symbolic adornments. The Chief refused Sergeant
Daniels’s request. Daniels then began wearing the pin anyway.
The Chief told Daniels to remove the pin from his shirt or face
termination. Daniels declined to remove the cross and was fired for
Petitioner George Daniels raises two constitutional issues in this
action. First, he asserts a “facial” challenge, arguing that Arlington
Police General Order 205.02(C)(2)(c) is unconstitutional because
it grants unfettered discretion to a government official to decide,
a
4
based solely oncontent, the nature of permissible speech that may
be engaged in by citizens who are public employees.”
Second, Petitioner asserts an “as-applied” challenge, alleging he
has been the victim of intentional religious discrimination. Petitioner
presented evidence showing Chief Kunkle previously allowed
numerous other types ofpins and ribbons to be worn on the uniform
shirts of Arlington police officers, but censored Petitioner’s speech
purely based on its religious content. All such evidence was ignored
by both the District Court and the Court of Appeals.
Based on the above, Petitioner asserts a violation of his civil
rights, and that he was wrongfully discharged from his job in
violation of the First Amendment, Title VII and Texas state law, and
is thus entitled to judgment of wrongful discharge and
commensurate damages.
Factual History.
The following facts were proved by the submission of the
Petitioner in the trial court below, and are substantially
uncontroverted by Respondents.
Petitioner George Daniels was employed by the City of
Arlington, Texas as a police officer on August 5, 1985. He was,
and is, a devout evangelical Christian. R.A. at 116. As part of his
faith, Sgt. Daniels believes he is obligated to proclaim the Lordship
of Jesus Christ to everyone he meets. As a police sergeant, Daniels
held positions that required him to wear departmental uniforms as
his regular working attire. R.A. at 117.
In accordance with his religious beliefs, Sgt. Daniels chose to
wear a tiny, 1/4-inch gold cross on his police uniform shirt as
2 See FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 223 (1990),
authorizing facial constitutional challenges in cases such as this one.
5
symbolic speech conveying his status as a Christian. Daniels
believed that wearing the cross allowed him to symbolically
proclaim his faith and reach out to others in his community, to fulfill
his commitment to Christ, and to identify and thus associate with
other Christians holding the same beliefs.
Arlington Police Department General Order No.
205.02(C)(2)(c) provides:
No button, badge, medal, or similar symbol or item not
listed in this General Order will be worn on the uniform shirt
unless approved by the Police Chief in writing on an
R.A. at 117 (hereafter “General Order”). A Christian cross is not
a listed item in the General Order. There exist no guidelines —
written or unwritten, official or unofficial — for the exercise of the
Chief's discretion while implementing the General Order. Instead,
the General Order expressly allows Arlington’s police chief to
exercise his unfettered discretion in deciding, on a case-by-case
basis, what pins or other ornamentation can be worn on the uniform
shirts of officers in the department. R.A. at 597.
ChiefDavid Kunkle previously allowed and encouraged officers
in his department to wear various forms of omamentation not listed
in the general order, including DARE (“Drug Abuse Resistance
Education”) and other anti-drug program pins, CLEAT (i.e., union)
pins, Mexican flag pins, red ribbons, and Russian/Muscovite police
pins. R.A. at 435, 482-84, and 534-35. The red ribbons were
supplied to the department by a community group, the Arlington
Medical Auxiliary, to commemorate the slaying of Federal Drug
Agent Enrique Camerena. See Appendix G, Arlington Police
Department Informational Memo from Police Chief Kunkle
regarding “Red Ribbon Week.” dated October 19, 1990. Chief
6
Kunkle stated officers were “encouraged to wear or display a red
ribbon during the week to show their support for Red Ribbon
Week and their commitment to lead a drug-free lifestyle.” Jd.
Ata Non-Supervisory Employee Representatives’ Meeting on
January 9, 1997, officers were instructed as follows:
Earrings, Knives, and Pins: ....As to pins or other uniform
accouterments, only those items specified in General
Orders are permitted. Deputy Chief Shipp is having a
survey conducted to see what officers have been wearing
(which now must be removed) and all items will be
reviewed by command staff to determine whether or not
they will be allowed on a case by case basis. Police
officers must accept that their appearance must be
professional and neutral and inoffensive to public
sensibilities. Even seemingly inoffensive religious
symbols are not to be worn where they can be viewed
by the public because they may indicate to others
hostility to their own religious beliefs.
See Appendix F.
In January 1998, Daniels began the process of seeking formal
approval from the Chief to wear the cross as an exception to the
“no pins” policy. On July 1, 1998, Daniels had a conference with
the Chiefin which he asked for permission to wear the cross on his
uniform shirt. The Chief acknowledged in testimony that he could
have granted Daniels’s request as an exception to the “no-pins”
policy had he simply chosen to do so. R.A. at 494-96. Instead,
the Chiefrefused to grant Daniels an exception to the policy, stating
that he believed the cross “might offend someone,” and that he
wanted his officers to remain “neutral,” presumably as it related to
religious-oriented speech and appearance. R.A. at 126, 435-36.
eerie lila,
7
Daniels chose to wear the cross on his uniform shirt anyway
because to remove it, for him, would be a public denial of his faith,
and because he believed the Chief's refusal to grant his request
infringed his right to free expression and was thus not a “lawful”
order he was duty-bound to obey. R.A. at 118.
On August 10, 1998, the Chief issued a memorandum to
Daniels telling him to remove the cross from his uniform. Daniels
continued to believe this admonition from the chief was not a
“lawful” order, and he refused to obey it. On August 24, 1998, the
Chief issued a second memorandum to Daniels, this time threatening
Daniels with termination from the department for insubordination if
Daniels refused to comply. Again, believing this order was not a
“lawful” order, Daniels declined to obey it. Jd.
In September 1998, the department began formal disciplinary
proceedings which ultimately resulted in Daniels’ termination from
the police force. The sole basis for Daniels’ termination was his
refusal to quit wearing the cross on his uniform, and his refusal to
obey orders requiring him to cease that activity. R.A. at 13, 139.
In the District Court, Respondents offered no evidence that the
wearing of a tiny gold cross suchas that worn by Sergeant Daniels
in any way interfered with the operations or mission of the police
department, implicated public policy or safety concerns, or
otherwise disparaged the name, position, abilities, authority or
faimess of the person wearing it or of the police department as a
whole. On the other hand, Sergeant Daniels offered credible proof
treatment. R.A. at 440, 482-84, and 534-35.
Procedural History.
Daniels filed the action below against the City and the Chiefof
Police.’ He sued for violation of his federal rights under the First
and Fourteenth Amendments to the United States Constitution, the
Civil Rights Act of 1871, 42 U.S.C. §§ 1983, 1985(3), and Title
VII of the 1964 Civil Rights Act, § 2000e et seg. He also brought
state law claims for wrongful termination based on the City’s
violation of the TEXAS CONSTITUTION, Article I, §§ 3, 3a, 6 and
8, and for violation of the Texas Commission on Human Rights Act,
TEXAS LABOR CODE ANN. § 21.001 ef seq., which prohibits
intentional discriminationinemployment based onreligious practices
and beliefs. Sergeant Daniels sought a declaratory judgment that
Arlington General Order 205.02(C\(2)(c) was unconstitutional on
its face and as applied, as well as monetary damages in the form of
back pay, front pay, pre-judgment and post-judgment interest, and
attorney’s fees and costs.
The case was initially filed in Texas State District Court. Before
proceedings commenced in state court, the case was removed to
the United States District Court under federal-question jurisdiction,
28 U.S.C. § 1331. The District Court dismissed all of Daniels’s
claims by granting the City’s motion for summary judgment. App.
C. The court rejected Petitioner’s claim of overbreadth by
incorporating its earlier order denying Petitioner partial summary
judgment on that issue. App. D.
Petitioner timely appealed to the Fifth Circuit, which affirmed
the judgment. App. A. The appeals court ruled that Sgt. Daniels’
__ symbolic use of the cross to express his faith was not a “matter of
public concern” within the meaning of Connick v. Myers, 461 U.S.
> Respondent Police Chief Bowman was named a defendant as
the successor to Chief David Kunkle.
9
138 (1983). 246 F.3d at 503-04. “The content of [Daniels’]
speech — symbolic conveyance ofhis religious beliefs — is intensely
personal in nature.” Jd. at 504. “Its form melds with the authority
symbolized by the police uniform, running the risk that the city may
appear to endorse Daniels's religious message.” Jd. The court also
credited the District Court’s conclusion that “the no-pins policy
does not target religion but only incidentally affects Daniels’
individual religious practice, and thus is acceptable under
[Employment Div. v.] Smith.” Id. at 505. For similar reasons,
the Fifth Circuit rejected Petitioner’s Title VII claim, holding that
Sgt. Daniels failed to demonstrate that reasonable accommodation
was not offered. Jd. at 506.
REASONS FOR GRANTING THE WRIT
I. CERTIORARI SHOULD BE GRANTED TO RESOLVE A
SPLIT AMONG THE CIRCUIT COURTS OVER THE
APPROPRIATE STANDARD FOR DETERMINING
WHETHER SYMBOLIC SPEECH BY A PUBLICEMPLOYEE
“MATERIALLY AND SUBSTANTIALLY INTERFERES”
WITH THE EMPLOYER’S FUNCTION
For over thirty years it has been settled law in a number of
different speech contexts that if“‘there is no finding and no showing
that engaging in the forbidden conduct would ‘materially and
substantially interfere with the requirements ofappropriate discipline
in the operation of the [government agency],’ the prohibitioncannot
be sustained.” Tinker v. Des Moines ISD, 393 U.S. 503, 509
(1969), citing to Burnside v. Byars, 363 F.2d 744, 749 (5™ Cir.
1966).
10
Even the exercise of religion may be at some slight
inconvenience in order that the state may protect its
citizens from injury.... The state is likewise free to regulate
the time and manner of solicitation generally, in the interest
of public safety, peace, comfort or convenience.
Cantwell v. Connecticut, 310 U.S. 296, 307 (1940) (emphasis
supplied). This Court has further held that the censor bears the
burden of proof to show constitutionality (i.e., a strong justification
for censorship) once a prima facie case of constitutional impact is
made. Freedman v. Maryland, 380 U.S. 51, 58-60 (1965).
The Arlington General Order exemplifies a constitutional
infirmity found in other prior restraints reviewed by this Court: there
is no evidence showing any real threat to the administration or
mission of the government justifying the restraint. Because of this,
it invites discrimination — however tacit and subtle — against
viewpoints expressed by particular symbols, such as the religious
viewpoint expressed by Sergeant Daniels’ cross pin.
The Fifth Circuit’s approach to symbolic speech by uniformed
public employees is in direct conflict with that of the Eighth Circuit.
In a case directly on point, the Eighth Circuit upheld the right of
firefighters to exercise their constitutional freedoms at work. In
Dunn v. Carroll, 40 F.3d 287 (8® Cir. 1994), several uniformed
firefighters were suspended from work for refusing to remove
court upheld the suspensions on summary judgment. The Eighth
Circuit reversed, finding that the city failed to show how wearing the
pins disrupted the workplace or otherwise negatively impacted any
legitimate governmental interest. 40 F.3d at 293. The Eighth Circuit
also held summary judgment inappropriate because fact issues
conceming motive and intent of the employer existed in the case.
Id. Cf. Waters v. Churchill, 511 U.S. 661 (1994) (plurality)
11
(reversing summary judgment for factual determination whether
employee was fired for protected or unprotected speech).
Moreover, the Eighth Circuit rejected the notion that an
unconstitutional order could be grounds for dismissal:
While the District portrayed the crucial conduct as
insubordination, earlier case law persuades us that we must
go further and examine the propriety of the order Dunn
disobeyed.... [T]he Eleventh Circuit [had] held that refusing
to obey an order that implicates an employee’s First
Amendment rights is not a sufficient reason for disciplining
the employee, even ina paramilitary organization such as a
police or fire department [citing Leonard v. City of
Columbus, 705 F.2d 1299, 1303-05 (11™ Cir.), cert.
den., 468 U.S. 1204 (1984).
Dunn, 40 F.3d at 291. There thus exists a conflict between the
Circuits on the issue of application of the standards set forth in
Pickering v. Bd. of Educ. of Will Township, 391 U.S. 563
(1968) and Waters, supra, to symbolic expression by uniformed
municipal officers. SUPREME CouRT RULE 10(a).*
‘ Daniels is also in conflict with other precedent within the Fifth
Circuit itself. In Vojvodich v. Lopez, 48 F.3d 879 (S®* Cir. 1995), a
deputy sheriff spoke out and campaigned against his current boss in
an election for a new sheriff. He was demoted after his boss won
re-election. The deputy sued, claiming his rights of free speech were
violated by the demotion. The Fifth Circuit reversed a grant of
summary judgment for the city, stating: “In the present case...
Sheriff Lopez has failed to allege that the deputy’s political activities
had any effect whatever on [the department’s] operations.” Looking
to the Pickering balancing factors, the court held “there is simply no
(continued...)
12
In Rankin v. McPherson, 483 U.S. 378, 388 (1987), the
Court confirmed that in the absence of evidence that speech by a
government worker on a matter of public concem “interfered with
the efficient functioning of the office,” disciplinary action resulting
from that speech was unconstitutional.
All the way back to Cantwell. State of Connecticut, supra,
this Court has observed this sound policy rationale:
When clear and present danger of riot, disorder,
interference with traffic upon the public streets, or other
immediate threat to public safety, peace, or order, appears,
the power of the state to prevent or punish is obvious.
Equally obvious is it that a state may not unduly suppress
free communication of views, religious or other, under the
guise of conserving desirable conditions. -
310 U.S. at 308. The burden of proof rests with the state to
demonstrate its restrictions are necessary to the fulfillment of
important governmental interests, and reasonably targeted to
achieving or promoting those interests. Freedman v. Maryland,
_ 380 US. at 58-60; Hernandez v. Commissioner, 490 U.S. 680,
699 (1989) (burden to prove disruption justifying restrictions on
constitutional rights is on the government/censor); Tucker v.
California Dep’t of Education, 97 F.3d 1204, 1209-1210 (9"
Cir. 1996); Dwen v. Barry, 483 F.2d 1126, 1130-31 (2 Cir.
‘(...continued)
countervailing state interest to weigh against the employee’s First
Amendment rights.” Vojvodich, 48 F.3d at 886. Why the Fifth
Circuit in Daniels ignored its own very recent precedent is unknown.
It is, however, obvious that its decision in Petitioner’s case is directly
contrary to its decision in Vojvodich.
13
1973). It is undisputed that the City has come forward with
absolutely no evidence that it is attempting to further a legitimate
governmental interest, or that the General Order is reasonably
targeted to fulfill such a purpose.°
The Court in Waters v. Churchill, supra, addressed the
constitutionally mandated scope of investigation an employer must
undertake before disciplining an employee for arguably protected
speech or expression. The plurality held that an employer must
undertake a reasonable investigation of the speech or conduct
involved, and only ifthe employer then reasonably believes that the
speech is not protected may the employer fire the employee without
further action. However, if the employer finds the speech is
protected, then the employer must "tread lightly" and ensure that the
Connick factors justify discipline. 511 U.S. at 677-78.
The Court stressed in Waters, "In many situations the
government may have to make a substantial showing that the speech
is, in fact, likely to be disruptive before it may be punished."
Waters, 511 U.S. at 674 (citing Connick, supra, Rankin, supra,
and Pickering, supra). Justice Souter, in concurrence, voiced the
same concem:
* It is possible the City may someday come forward with evidence
that its officers wearing cross pins would “negatively impact” its
mission of serving and protecting the public; doubtful, but possible:
However, there is no such proof in this record, and the Court simply
cannot “assume” that such facts exist in the absence of evidence.
Indeed, Daniels argued that no such proof exists, and the City has
(so far) failed to deny or counter that argument with any evidence
whatsoever. It is thus the better presumption, especially on summary
judgment, to presume that no such evidence will ever exist, and rule
accordingly. The lower courts thus erred in overruling Daniels’ “no
evidence” motion for summary judgment, and should have granted
that motion on the record presented. FED.R.CIV.P. 56(e).
~
14
A public employer who did not really believe that the
employee engaged in disruptive or otherwise punishable
speech can assert no legitimate interest strong enough to
justify chilling protected expression.
511 U.S. at 684 (Souter, J., concurring). Waters thus reiterates
and confirms the basic premise that before a goverment employer
may discipline its employees for arguably protected speech, that
speech must be disruptive of the employer's mission or activities.
"When someone who is paid a salary so that she will contribute to
an agency's effective operation begins to do or say things that
detract from the agency's effective operation, the government
employer must have some power to restrain her." Waters, 511
U.S. at 675 (emphasis supplied). In Petitioner’s case, the City has
come forward withno evidence or cogent argument that the speech
and conduct engaged in by Sergeant Daniels crosses this bare
minimum threshold, and the City did not meet even the lesser
burden of satisfying the first stage of the analysis articulated in
Waters.
Inarguably, the General Order is not narrowly drawn to effect
an articulated, important government mterest. It is plainly aimed
only at suppression of expression. The City has not argued (much
less proven) that public safety, employee loyalty, department
functionality, or the preservation of public peace and order justify
the General Order. Rather, the City has only argued (but again not
proven) “conservation of desirable conditions” as the goal of its
enforcement. The General Order is unconstitutional. Because the
Court of Appeals failed to properly apply the Pickering standard
to require that Respondents demonstrate how Petitioner’s speech
would “materially or substantially disrupt” the police department’s
function, creating a conflict within the Circuits, certiorari should be
granted.
15
Il. THE PETITION SHOULD BE GRANTED TO RESOLVE A
CONFLICT AMONG THE CIRCUITS RELATING TO THE
APPLICATION OF THE OREGON EMPLOYMENT DIV. V.
SMITH “NEUTRALITY” REQUIREMENT TO MUNICIPAL
PROHIBITIONS ON SYMBOLIC RELIGIOUS EXPRESSION BY
UNIFORMED PUBLIC SERVANTS.
The Court of Appeals wrongly concluded that because the
General Order only “incidentally affects Daniels’s individualreligious
practice” it is “acceptable under [Oregon Employment Div. v.]
Smith.” 246 F.3d at 505, App. at A9. This is demonstrably
incorrect. The ruling in Smith has been strictly limited by
subsequent Supreme Court cases to apply only in situations where
a single Constitutional nght is implicated by the challenged
restriction. City of Boerne, Texas v. Flores, 521 U.S. 507, 513
(1997).’ Therefore, since it is clear that Daniels has brought a so-
called “hybrid” Constitutional challenge to the General Order,
Smith is inapposite. The Court of Appeals’ invocation of that
precedent was error.®
* Oregon Employment Division v. Smith, 494 U.S. 872 (1990).
’ Such a “single right” case might have been brought if Daniels’
speech was not religious in nature. Here, however, Daniels’
freedom of speech, his freedom of association, and his freedom to
exercise his religion are at issue, making Smith off point.
* In recent years several members of this Court have called for
rebriefing and reconsideration of the Smith precedent, mostly
because that case is not only confusing but also possibly incorrect in
its Constitutional analysis. See, e.g., the dissenting opinion of
Justices O’Connor and Breyer in City of Boerne v. Flores, 521 U.S.
507, 544-49 (1997), and the concurring opinions of Justices Souter,
(continued...)
16
Furthermore, the General Order is not a “neutral law of general
application,” and therefore the “incidental burden” standard of
Smith cannot apply. There is ample evidence in the record that the
Chief was far from neutral in his application of the General Order,
and that he in fact discriminated against Sergeant Daniels on the
basis of the religious nature of the symbolic speech he sought to
express. See Church of the Lukumi Babalu Aye, Inc. v. City of
Hialeah, 508 U.S. 520 (1993) (city ordinance against animal
sacrifice facially neutral but factually discriminatory against Santerian
religion; ordinance declared unconstitutional). The unbridled
discretion placed in the Chief by the General Order precludes the
order from having “general application,” because the existence of
such discretion fosters an environment where the regulation may be
applied in anuneven manner based on the personal preferences of
the current chief and the particular speech at issue (which is what
happened here).
The Court of Appeals cited for its reasoning only to a recent |
decision ofits own court, a decision which conflicts with earlier and
better-reasoned precedent from other circuits, thus creating yet
another conflict in the circuits. SUPREME COURT RULE 10(a). The
Fifth Circuit cited to Green v. Polunsky, 229 F.3d 486 (5™ Cir.
2000), for the proposition that inmates who desired to wear beards
as part of their religious faith could not do so even though other
inmates with medical conditions were given such permission. Even
§(...continued)
O’Connor and Blackmun in Church of the Lukumi Babalu Aye,
Inc. v. Hialeah, 508 U.S. 520, at 570-71 (1993). The present case
may provide this Court with a prime opportunity to re-evaluate Smith
after full briefing of the issues relevant to these type cases. The
main, troublesome issue under Smith is squarely and cleanly
presented here.
a ae
nd Legh bene de
17
if Green were germane and good law (which it is not), it is indirect
conflict with the Third Circuit’s decision in Fraternal Order of
Police Newark v. City of Newark, 170 F.3d 359 (3™ Cir. 1999),
cert den., 528 U.S. 817 (1999), which held that once the
government makes an exception for medical conditions, it has no
“Jegitimate interest” in not allowing a similar exception based on
religious belief. Newark, 170 F.3d at 366-67.
The Newark decision is the better reasoned one for several
reasons. First, it is difficult to determine which exceptions are
“legitimate” and whichare not if goverment officials have unbridled
discretion to decide, on a case-by-case basis, which will be
allowed. Pretext and blatant discrimination can far too easily infect
such a system of restraint.
Second, as with any “legitimate” restriction, the goverment
must be attempting to advance some important state interest. If
some people may engage in behavior that is contrary to that interest,
then in the common seismical words of Justice Kennedy, “a law
_ Cannot be regarded as protecting an interest 'of the highest order’...
when it leaves appreciable damage to that supposedly vital interest
unprohibited.” Church of the Lukumi Babalu Aye, 508 U.S. at
547, quoting Florida Star v. B.J.F.,491 U.S. 524 (1989) (Scalia,
J., concurring in part and concurring in judgment). Said differently,
if some persons are allowed to act “contrary to” an important
interest sought to be protected (regardless of reason or motive),
then the interest is — by definition — no longer being “protected.”
Therefore, one cannot enforce the prohibition against those who
also seek to act contrary to the interest albeit with differing (perhaps
religious) motives without risking unconstitutional viewpoint
Here, it is undisputed that other officers of the Arlington police
department wore various omamentationon their uniforms during the
18
same time period Sergeant Daniels sought to wear his cross.? And
regardless of whether the Chiefgave his express written consent, his
verbal consent, his tacit “look the other way” consent, or was just
blind to the fact that numerous pins were being conspicuously worn
by his officers, it is still true that any supposed and hypothetical
““nterest of the highest order” sought to be protected by the General
Order was not being protected. It is thus constitutionally suspect
that Daniels’ behavior was singled out for special, disparate
treatment under the guise of “advancing” that interest.'° The refusal
% On summary judgment, the Court must accept these facts, and
their reasonable presumptions, as true. FED.R.CIV.PROC. 56(c);
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). This means
our analysis must consider that the Chief had expressly and
intentionally allowed these other pins to be worn (albeit not in
writing), since that is a reasonable presumption from the facts
presented, irrespective of the Chief’s denial. Pointedly, the jury
could disregard the Chief’s recent, self-serving and contrary
testimony, and find that Chief Kunkle had expressly authorized these
other pins.
The Court of Appeals faulted Daniels for not bringing forth
evidence (other than Daniels’ own affidavit) that these other pins had
been worn. But under controlling law, Daniels affidavit was
sufficient to overcome the City’s motion (Celotex, 477 U.S. at 324),
and Daniels “need not also depose his witnesses or obtain their
affidavits to defeat a summary judgment motion asserting only that
he has failed to produce any support for his case. It is the
defendant's task to negate, if he can, the claimed basis for the suit.”
Celotex, 477 U.S. at 328 (White, J., concurring).
'0 Interestingly, the Court of Appeals faulted Sergeant Daniels for
seeking express leave to wear his cross pin. The court said Daniels
was not given disparate treatment because no other officers’
requests to wear their pins had been denied, and thus the Chief had
(continued...)
19
of the Fifth Circuit to recognize that the regime of standardless
discretion established by the General Order was a quintessential
“system of individualized exceptions” under Smith, creating a split
of authority within the Circuits over the meaning of Smith, warrants
review by this Court.
III. THE PETITION SHOULD BE GRANTED TO ADDRESS THE
FIFTH CIRCUIT COURT OF APPEALS’ RADICAL AND
CONSTITUTIONALLY UNTENABLE DECLARATION THAT
THE EXPRESSION OF ONE’S RELIGIOUS FAITH IS NOT A
“MATTER OF PUBLIC CONCERN” WITHIN THE MEANING
OF CONNICK V. MYERS.
The Court of Appeals held that Daniels’ speech was not a
matter of “public concern.” Daniels, 246 F.3d at 503-04, App. at
A6. This is contrary to Supreme Court authority, and conflicts with
other Circuit Courts’ definitions of the term “public concem.” _
This Court has held that speech related to issues of religion or
religious belief is a matter of “public concern.” United States v.
Nat'l Treas. Employees’ Union, 513 U.S. 454, 466, 473 (1995)
(federal employees’ speech, including one employee’s public
lectures on the Quaker religion, held protected as “matter of public
concern”); Rosenberger v. Rectors & Visitors of the Univ. of
Virginia, 515 U.S.819, 845-46 (1995). This view is held by other
'(...continued)
not discriminated against Daniels by denying his request. 246 F.3d
at 507, App. at Al3. This misses the point. The discrimination did
not come about from denial of Daniels request when other requests
had been granted. The discrimination came about from the Chief.
allowing other pins to be worn, but not allowing Daniels to wear his
cross. Whether or not other formal requests had been made is totally
irrelevant.
20
federal circuit courts as well. See, e.g., Tucker v. California
Dep't of Education, 97 F.3d at 1209-10; Altman v. Minn. Dept.
of Corr., 251 F.3d 1190, 1202 (8" Cir. 2001) (state employees’
non-verbal religious statement in opposition to sexvai orientation
sensitivity seminar, consisting of silently reading their Bibles during
class, held protected speech); Brown v. Polk County, 61 F.3d
650, 658 (8 Cir. 1995) (supervisor’s religious speech in
workplace such as prayer and quoting Bible verses held protected
speech); Shahar v. Bowers, 114 F.3d 1097 (11 Cir. 1997) (én
banc) (assuming state employee’s decision to hold herself out as
“married” to fellow lesbian and engage m religious mariage
ceremony was protected speech).
Not only was its conclusion faulty, but the Fifth Circuit’s
analysis also runs counter to the proper analysis of the “public
concern” issue. This Court described the proper analysis in
Connick v. Myers, supra. There, the Court did not undertake the
impossible task of attempting to determine how a statement might
be a matter of public concern, as the lower courts did here. Rather,
it looked at the individual statements themselves, and sought to
determine whether they were of importance or interest only to other
employees of the department (and hence of private concern). If
not, such statements are matters of “public concer,” basically by
default. Connick, 461 U.S. at 147-48. Cf. Rankin, supra, at 386
(comment regarding personal wish that a would-be assassin had
succeeded in killing the president was “plainly a matter of public
concern,” even though uttered by sheriff's department employee).
No tenable argument can be made that the speech of Sergeant
Daniels was of concern only to members of the Arlington police
department (as would be, for instance, a union pin, cf. United
States Department of Justice v. F.L.R.A., 955 F.2d 998, 1006
(5 Cir. 1992)). Rather, it is undisputed that Sergeant Daniels
intended his speech to reach members of the public at large, for
21
their benefit, making that speech (under Connick) a matter of
“public concern” as a matter of law. A full Pickering analysis was
thus required. The lower courts refused to undertake such an
analysis, and thereby erred.
The FifthCircuit’s notionthat Daniels’ speech “melded” with his
job is likewise faulty. The court seemed to believe that simply
because Daniels’ speech was “intensely personal in nature” this
meant there was some risk that citizens may perceive that message
as the City’s “endorsement” of Daniels’ religious beliefs. This
cannot be correct because it is backwards. If such speech is as
“intensely personal” as the Panel suggests, this makes it /ess likely
— not more likely — that members of the public would view it as the
“officially-endorsed” position of the City. The Fifth Circuit and
Respondents simply cannot have it both ways: the cross is so
intensely personal as to elude a Pickering analysis, but is so public
that it might be perceived as some sort of “officialendorsement” of
Christianity by the City.
If the Fifth Circuit’s test is the correct one, then all speech by
government employees while at work would be legally suppressible
simply because it could be couched as “intensely personal” speech
which may be viewed as the employer’s “endorsement” of that
employee’s beliefs. This certainly does not give the public much
credit for intelligence, since it assumes members of the public cannot
distinguish between “private” and “official” statements. '!
'' The Supreme Court has rejected the notion that public confusion
can convert private speech into government endorsement of religion
six times in the last twenty years, and has never held to the contrary.
See Widmar v. Vincent, 454 U.S. 263 (1981); Board of Educ. of
Westside Comm. Schs. v. Mergens, 496 U.S. 226 (1990); Lamb’s
Chapel v. Center Moriches Union Free Sch. Dist., 508 U.S. 384
(1993); Capitol Square Rev. & Advis. Bd. v. Pinette, 510 U.S.
(continued...)
22
Recently inGood News Club v. Milford Central School, 121
S.Ct. 2093, 2104 (2001), Justice Thomas, writing for the majority,
reiterated this important principle from Rosenberger, 515 U.S. at
839: “the guarantee of neutrality is respected, not offended, when
the government, following neutral criteria and evenhanded policies,
extends benefits to recipients whose ideologies and viewpoints,
including religious ones, are broad and diverse.” When Chief
Kunkle told Sergeant Daniels that he could not wear his cross
because the Chief wanted his officers to remain “neutral,” he was
not treating religion in a neutral manner whatsoever. The First
Amendment requires “neutrality” as between religion and non-
religion. Good News Club, 121 S.Ct. at 2097; Widmar v.
Vincent, 454 U.S. at 273; Capitol Square v. Pinette, supra;
Lamb’s Chapel, 508 U.S. at 393; Rosenberger, 515 U.S. at 839.
If this were truly a neutral policy, then no pins that have any sort of
personal, religious or national connotation would be permitted. If
a tiny cross pin is to be regarded by the public as an official police
endorsement of Christianity, then wearing a Mexican flag pin ought
to be seen by the public as an official police endorsement of loyalty
to Mexico over the United States. This sounds ridiculous, but that
is exactly the point.
It is ludicrous to assume that thinking members of the public
cannot distinguish personal jewelry fromofficialornamentation. The
Chiefdid not fear “establishment of religion.” Rather, he feared that
religious jewelry might “offend” certain members of the public (his
fears totally untethered to any facts, studies, complaints, etc.), and
he acted on his own personal prejudices. Freedom of speech is
protected by the Constitution even when (perhaps especially when)
"(...continued)
1307 (1993); Rosenberger, supra; Good News Club, supra.
23
the speech might offend. Why are government workers removed
from the ranks of those of us who may freely speak?
In the Pickering analysis the court is obliged to undertake,
there is no “weight” on the City’s side of the scales; all the current
evidence favors Sergeant Daniels. Because the lower courts did
not properly identify Daniels’ religious speech as addressing a
matter of public concer in contravention of the Supreme Court’s
historic protection of religious speech, and because a proper
Pickering analysis was thus not undertaken, certiorari should be
granted to rectify the Fifth Circuit’s radical departure from the
Court’s free speech jurisprudence.
IV. THE PETITION SHOULD BE GRANTED TO ADDRESS
THE IMPORTANT AND NOVEL QUESTION OF
WHETHER A MUNICIPALPOLICYTHAT GRANTS A
SUPERVISORY OFFICIALUNBRIDLED DISCRETION
TO CENSOR ANY FORM OF SYMBOLIC SPEECH BY
AN EMPLOYEE OF His DEPARTMENT, INCLUDING
“PUBLIC CONCERN” SPEECH, Is
UNCONSTITUTIONALLY OVERBROAD
Although the arguments on this issue consumed a great deal of
the briefs of the parties below, both the District Court and the Court
of Appeals failed to address whether the unbridled discretion
contained in the General Order renders that regulation
unconstitutionally overbroad.
In FW/PBS, Inc. v. City of Dallas, this Court said:
While prior restraints are not unconstitutional per se... any
system of prior restraint... comes to this Court bearing
a heavy presumption against its constitutional
validity... [A]n ordinance which... makes the peaceful
24
enjoyment of freedoms which the Constitution guarantees
contingent upon the uncontrolled will of an
[government] official — as by requiring [permission]
which may be granted or withheld in the discretion of such
Official — is an unconstitutional censorship or prior
restraint upon the enjoyment of those freedoms.
493 U.S. 215, 225-26 (1990) (emphasis supplied). Justice White
articulated the rule perfectly:
Unbnidled discretion with respect to the criteria used in
deciding whether or not to grant a license is deemed to
convert an otherwise valid law into an unconstitutional prior
restraint.... That rule reflects settled law with respect to
licensing in the First Amendment context.
FW/PBS, 493 U.S. at 246 (White, J., concurring and dissenting)
(emphasis supplied).
Numerous Supreme Court cases have consistently held that
when a government regulation vests unbridled discretion in a
government official to restrict the speechof citizens (as the Arlington
General Order admittedly does), that regulation fails constitutional
muster as being overbroad. “At the root of this long line of
precedent is the time-tested knowledge that in the area of free
expression a licensing statute placing unbridled discretion in the
hands ofa government official or agency constitutes a prior restraint
and may result in censorship.” City of Lakewood v. Plain Dealer
Publishing Co., 486 U.S. 750, 782 (1988). The regulation
imposed by the City of Arlington lacks standards which are the
“guideposts that check the licensor and allow courts quickly and
easily to determine whether the licensor is discriminating against
disfavored speech.” Plain Dealer, 486 U.S. at 758.
25
In Plain Deaier, the City of Lakewood, Ohio passed an
ordinance giving the mayor “unbridled discretion” to deny permits
for placing newspaper stands on public property. The Supreme
Court never reached the first amendment freedom-of-the-press
issue presented. The case was decided solely on the discretion
given to the mayor unilaterally to make permit decisions. That
discretion caused the ordinance to be facially unconstitutional:
[A] law or policy permitting communication in a certain \
manner for some but not for others raises the specter of
content and viewpoint censorship. This danger is at its
zenith when the determination of who may speak and
who may not is left to the unbridled discretion of a
government official. As demonstrated above [citing
numerous cases], we have often and uniformly held that
such statutes or policies impose censorship on the public or
the press, and hence are unconstitutional, because without
standards governing the exercise of discretion, a
government official may decide who may speak and
who may not based upon the content of the speech or
viewpoint of the speaker. Therefore, even if the
government may constitutionally impose content-neutral
prohibitions on a particular manner of speech, it may not
condition that speech on obtaining a license or permit
from a government official in that official's boundless
discretion.
Plain Dealer, 486 U.S. at 763-64 (emphasis supplied) (citations
omitted). See also Summum v. Callaghan, 130 F.3d 906 (10"
Cir. 1997) (lack of guidelines “strongly suggests” the potential for
arbitrary conduct and viewpoint discrimination); Ohio Citizen
Action v. City of Seven Hills, 35 F.Supp. 2d 575, 577 (N.D.
26
Ohio 1999) (same); Abel v. Town of Orangetown, 759 F.Supp.
161, 165 (S.D.N.Y. 1991) (same).
This rule is not new. InSaia v. New York, 334 U.S. 558, 561
(1948), this Court held:
The right to be heard is placed in the uncontrolled
discretion of the Chief of Police. He stands athwart the
channels of communication as an obstruction whichcan be
removed only after criminal trial and conviction and lengthy
appeal. A more effective previous restraint is difficult to
As in these prior cases — and for the same reason— the General
Order here at issue offends the Constitution. “[T]he Constitution
requires that the city establish neutral criteria to insure that the
licensing decision is not based on the content or viewpoint of the
speech being considered.” Plain Dealer, 486 U.S. at 760. The
City of Arlington has not done this.
In the District Court, the City argued that because it was acting
as “employer” and not as “government” a different standard should
apply to its restrictions. Not so. “The First Amendment prevents
government, except in the most compelling circumstances, from
wielding its power to interfere with its employees’ freedom to
believe or associate, or to not believe and not associate.” Rutan v.
Republican Party, 497 U.S. 62, 76 (1990) (emphasis supplied).
“Government as employer” enjoys no special exemption from the
Constitution.
One reasonunbridled discretion is unconstitutional relates to the
very reason we have a Constitution and bill of rights in the first
place: We, the people, do not trust the government. We have never
allowed the great power of the state, which is so potentially
destructive of our civil rights, to reside in the hands of lone
27
bureaucrats unless its exercise is subject to express, articulated due
process standards informing that exercise. We have never trusted
government officials to be wise, knowing and balanced in their
control of the power we are of necessity required to yield to them,
and historically we have excellent reasons to not trust them. See
Olmstead v. United States, 277 U.S. 438, 478 (1928)
(“Experience should teach us to be most on our guard to protect
liberty when the Government’s purposes are beneficent”).
The main reason for the requirement of standards is that citizens
want their courts to be able to conduct enlightened review of the
exercise of discretion vested in government officials. This task can
only be intelligently undertaken if such discretion is bounded by
objective, reviewable criteria or standards.'? Here, it is undisputed
that Arlington Police General Order 205.02(C)(2)(c) allows
“unbridled discretion” to reside in the Chief of Police. The refusal
of the Fifth Circuit to acknowledge that such a regime of
standardless discretion is a constitutional infirmity that is redressable
via a Pickering analysis merits review by the Supreme Court.
CONCLUSION
This case presents in stark relief the problem that Oregon
Employment Div. v. Smith was bound to foster. Here, a
government agency argues that it has a “law of general applicability”
which allows a goverment official the unfettered discretion to
'2 In the recent election contest between President Bush and then-
Vice President Gore, the decision of this Court to halt the Florida
recounts came down to the problem of standardless discretion vested
in the county canvassing boards. Such unfettered discretion resulted
in a violation of the equal protection clause of the Fourteenth
Amendment. See Bush v. Gore, 531 U.S. 98 (2000)(per curiam).
28
discriminate and censor speech based purely on viewpoint, and to
thus squelch the constitutional rights of citizens to freely speak,
exercise their religion, and associate. Since it is “generally
applicable,” the government argues it may enforce the regulation
and censor speech arbitrarily, discriminatorily, and totally free from
judicial scrutiny even ifthe speech at issue has no potential for harm
or disturbance of any kind.
The City, naturally, denies any motive of religious hostility. But
that is just the point. It is impossible for us to determine the Chief's
true motives or to determine whether the City has implemented and.
enforced the General Order for lawful or unlawful purposes.
Motives are inherently difficult things to prove. That is why this
Court has held on numerous prior occasions that before the
government mayrestrict Constitutional rights, (a) its means of doing
so must be truly “generally applicable,” and (b) the restraint must be
bounded by articulated, objective criteria so that its imposition may
be scrutinized by the courts to determine whether it is being used as
a device to foster a legitimate end, or as a charade to censor
contrary viewpoints and unpopular speech. The City of Arlington
has met neither of these requirements.
But an even greater danger is exposed by this case. Smith is
being read by the lower courts as a proclamation that as long as a
law can be pigeonholed into the category of being of “general
applicability,” the government is relieved of its obligation to show
that the law actually fosters and protects a legitimate governmental
interest. Surely this Court did not mean Smith to be read in such
a superficial, knee-jerk manner. Given the history of strong
protection for religious speech in the constitutional jurisprudence
created by this Court, and given that this Court is the final guardian
of our precious constitutional rights, there is no way any decision of
this Court should be read to sanction such unbridled government
“license” to restrict those rights without the government being
29
required to demonstrate, first, the existence of a legitimate,
important state interest, and second, that its selected means is at
least reasonably related to the goal of furthering that interest.
Indeed, any such reading of Smith could result in a city passing an
ordinance prohibiting all speech that discussed political parties or
candidates. Such a law would undoubtedly be of “general
applicability,” but would also be so foreign to our constitutional
jurisprudence as to be laughable.
But this is no laughing matter. Here, we have exactly that type
of regulation. The City of Arlington has seen fit to allow its police
chief the unfettered discretion to decide what, if any, speech may
be engaged in by his officers. Depending upon who the Chief
happens to be, this General Order could be used to censor either
no speech or all speech of any type — political, religious, or even
safety-related. The City should be required to show some
legitimate purpose, some sound reason, why one whole segment of
the population (police officers who wish to express their faith)
should be prohibited from engaging inspeech that is freely exercised
by every other segment of the population. Government censorship
cannot be condoned simply because the government assures us its
motives are pure and its ends legitimate.
The lower courts are likely misreading Smith, and this is a grave
problem. On the other hand, if they are reading Smith correctly,
then we have aneven greater problem. The Fifth Circuit’s reading
of Smith is contrary to the very idea of constitutional rights, since it
allows the government — the very entity which the Constitution was
designed to rein in— complete and unfettered license to restrict or
destroy those rights with the stroke of apen. This Court should
30
grant certiorari in this case m order to either clarify Smith, or
toaddress which aspects of Smith remain viable law.
Respectfully submitted,
James A. Pikl
Counsel of Record
JAMES A. PIKL, P.C.
P.O. Box 2939
McKinney, TX 75070-1408
Tel.: (214) 544-7000
John W. Whitehead
Steven H. Aden
THE RUTHERFORD INSTITUTE
P.O. Box 7482
Charlottesville, VA 22906-7482
Tel.: (804) 978-3888
Attomeys for Petitioner
George Daniels
July 30, 2001
Page | of 1
TABLE OF APPENDICES
Daniels v. City of Arlington, 246 F.3d 500 (5" Cir.
2001), No. 00-11191, Decision of the United States Court
of Appeals for the Fifth Circuit, April 9, 2001 ........ Al
Daniels v. City of Arlington, United States Court of
Appeals for the Fifth Circuit, No. 00-11191, Order
Treating the Petition for Rehearing En Banc as a Petition
for Panel Rehearing and Denying Petition for Panel
Rehearing, filed May 1,2001 .................... Bl
Daniels v. City of Arlington, United States Dist. Ct. for
the N. Dist of Texas (Ft. Worth Div.), No. 4:99-CV-549,
Order Granting Defendants’ Motion for Summary
Judgment filed October 6, 2000 .................. Cl
Daniels v. City of Arlington, United States Dist. Ct. for
the N. Dist of Texas (Ft. Worth Div.), No. 4:99-CV-549,
Order Denying Plaintiffs Motion for Partial Summary
Judgment filed September 21,2000 ............... Di
Daniels v. City of Arlington, United States Dist. Ct. for
the N. Dist of Texas (Ft. Worth Div.), No. 4:99-CV-549,
Judgment dated October 6, 2000 .................. El
Minutes, Non-Supervisory Employee Representatives’
ee , a ee ccecees Fl
ArlingtonPolice Dept. Informational Memo Regarding Red
Ribbon Week, dated October 19, 1990 ............ Gl
Al
GEORGE DANIELS, Plaintiff-Appellant, versus CITY OF
ARLINGTON, TEXAS; THERON BOWMAN, Chief of
Police, Arlington, Texas, Defendants-Appellees.
No. 00-11191 (Summary Calendar)
UNITED STATES COURT OF APPEALS FOR THE
FIFTH CIRCUIT
246 F.3d 500
April 9, 2001, Decided
Before HIGGINBOTHAM, WIENER, and BARKSDALE,
Circuit Judges.
[*501]
WIENER, Circuit Judge:
Plaintiff-Appellant George Daniels appeals two nulings
by the district court in this First Amendment employment case:
the denial of his motion for partial summary judgment, and the
grant of summary judgment in favor of Defendants-Appellees,
the City of Arlington and its police chief (collectively, "the
city"). Finding Daniels's claims to be meritless, we affirm the
ruling of the district court.
I. FACTS AND PROCEEDINGS
Damels was an Arlington police officer for thirteen
years. While working in a plainclothes position, he began
wearing on his shirt a small, gold cross pin ("the pin") as a
symbol of his evangelical Christianity. He continued to wear
the pin after he was reassigned to a uniformed position, which
A2
brought him into conflict with Arlington Police Department
General Order No. 205.02(C)(2)(c) ("the no-pins policy"). The
General Order, as revised m November 1997, states that: "No
button, badge, medal, or similar symbol or item not listed in
this General Order will be worn on the uniform shirt unless
approved by the Police Chief in writing on an individual basis."
Daniels requested in writing that then-Police Chief
David Kunkle make an exception to the policy and allow him
to continue wearing the pin on his uniform Kunkle declined,
writing to Daniels that "I have not authorized any non-
department related pins and I do not intend to do so." Daniels
refused Kunkle's order to remove the pin from his uniform shirt
and did not respond to the police chief's offer of
accommodations, which included: (1) wearing a cross ring or
bracelet instead of the pin; (2) wearing the pin under his
uniform [*502] shirt or collar; or (3) transferring to a non-
uniformed position, where he could continue to wear the pin on
his shirt. Daniels declined these alternatives and ultimately was
fired for insubordination.
Daniels sued, claiming that the no-pins policy is
unconstitutional on its face, and that he had been the victim of
intentional religious discrimination. The district court rejected
Daniels's claims: It denied his motion for partial summary
judgment on the facial challenge to the regulation and granted
the city's summary judgment motion, dismissing the remainder
of Daniels's claims. He timely perfected his appeal of both
decisions.
Il. ANALYSIS
A. Standard of Review
This case is on appeal from a denial of partial summary
judgment and dismissal on summary judgment. Therefore, we
review the record de novo, applying the same standard as the
A3
district court. nl A motion for summary judgment is properly
granted only if there is no genuine issue as to any material fact.
n2 An issue is material if its resolution could affect the
outcome of the action. n3 In deciding whether a fact issue has
been created, the court must view the facts and the inferences
to be drawn therefrom in the light most favorable to the
nonmoving party. n4
nl Morris v. Covan World Wide Moving, Inc., 144 F.3d 377,
380 (Sth Cir. 1998); see also Bradshaw v. Pittsburg Indep. Sch.
Dist., 207 F.3d 814, 816 (Sth Cir. 2000) ("For purposes of
appellate review, the ‘inquiry into the protected status of speech
is one of law, not fact.) (quoting Kirkland v. Northside Indep.
Sch. Dist., 890 F.2d 794, 797 (Sth Cir. 1989) (quoting Connick
v. Myers, 461 U.S. 138, 148 n.7, 75 L. Ed. 2d 708, 103 S. Ct.
1684 (1983))). n2 Fed. R. Civ. P. 56(c); Celotex Corp. v.
Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548
(1986). n3 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248,
91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). n4 Olabisiomotosho
v. City of Houston, 185 F.3d 521, 525 (Sth Cir. 1999).
The standard for summary judgment mirrors that for judgment
as a matter of law. nS Thus, the court must review all of the
evidence in the record, but make no credibility determinations
or weigh any evidence. n6 In reviewing all the evidence, the
court must disregard all evidence favorable to the moving party
that the jury is not required to believe, and should give
credence to the evidence favoring the nonmoving party as well
as to the evidence supporting the moving party that is
uncontradicted and unimpeached. n7
A4
n5 Celotex, 477 U.S. at 323. n6 Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 120 S. Ct. 2097, 2102, 147 L. Ed.
2d 105 (2000). [**5] n7 120S. Ct. at 2110.
B. Facial Challenge to the No-Pins Policy
Daniels asserts that Arlington Police Department
General Order No. 205.02(C)(2)(c), one of many provisions
regulating uniform standards for Arlington police, is an invalid
prior restraint of speech protected by the First Amendment. He
contends that the order is overbroad, impermissibly giving the
police chief unfettered discretion to determine what expression
may be displayed on an officer's uniform.
This argument is unavailing. As the district court
correctly noted, "[a] police officer's uniform is not a forum for
fostering [*503] public discourse or expressing one's personal
beliefs." The Supreme Court has upheld appropriate
restrictions on the First Amendment nights of government
employees, specifically including both military and police
uniform standards. n8 We reached the same conclusion in a
case closely analogous to this one, United States Dep't of
Justice v. Federal Labor Relations Auth. ("FLRA"), in which
we upheld department regulations prohibiting border patrol
agents from wearing union pins on their uniforms. n9
n8 See, e.g., Goldman v. Weinberger, 475 U.S. 503, 89 L. Ed.
2d 478, 106 S. Ct. 1310 (1986) (upholding against First
Amendment challenge military uniform regulation barring
wearing of yarmulke); Kelley v. Johnson, 425 U.S. 238, 47 L.
Ed. 2d 708, 96 S. Ct. 1440 (1976) (upholding police uniform
and grooming standards). n9 955 F.2d 998 (Sth Cir. 1992).
AS
The city argues that the deferential rational review
standard should be applied to the Arlington Police
Department's no-pins policy, a test it surely passes. nl0 We
need not decide whether that is the singularly applicable test,
however, because the no-pins policy survives even the stricter
standard for reviewing restrictions on government employee
speech promulgated by the Supreme Court in Pickering v. Bd.
of Educ. n11 The Pickering standard balances "the interests of
the [employee], as a citizen, in commenting upon matters of
public concern and the interests of the State, as employer, in
promoting the efficiency of the public services it performs
through its employees." n12
nl0 See, e.g., Kelley, 425 U.S. at 239. n11 391 U.S. 563, 88 S.
Ct. 1731, 20 L. Ed. 2d 811 (1968). n12 Jd. at 568; see also
Connick v. Myers, 461 U.S. 138, 75 L. Ed. 2d 708, 103 S. Ct.
1684 (1983). Several circuit courts have applied the Pickering
test to public employee claims mvolving religious speech or
the free exercise of religion. See, e.g., Lumpkin v. Brown, 109
F.3d 1498, 1500-01 (9th Cir. 1997); Brown v. Polk County,
Iowa, 61 F.3d 650, 658 (8th Cir. 1995) (en banc), cert. denied,
516 U.S. 1158, 134 L. Ed. 2d 189, 116 S. Ct. 1042 (1996)
("[Pickering] dealt with free speech rather than the free
exercise of religion, but because the analogy is such a close
one, and because we see no essential relevant differences
between those rights, we shall endeavor to apply the principles
of Pickering to the case at hand."); Baz v. Walters, 782 F.2d
701, 708 (7th Cir. 1986).
In FLRA, we assumed that the speech involved was a
matter of public concem, then applied the Pickering balancing
test and concluded that the government's interest in promoting
the efficiency of the services provided by its employees
eens
A6
outweighed the employees’ interest in engaging in the protected
speech. nl3 We found that "a law enforcement agency's anti-
adomment policy is [ ] entitled to deference when weighing the
s interest against the employee's interest under the
Pickering/Connick [v. Myers] First Amendment test." nl4
We have used two tests, both derived from Connick, to
determine whether speech relates to a “legitimate public
concern." nl5 Daniels fails both. The first, the citizen-
employee test, turns on whether a public employee "speaks not
as a citizen upon matters of public concern, but instead as an
employee upon matters only of personal interest." nl6 The
second evaluates the content, form, and context of a [*504]
given statement. None of these three factors favors Daniels's
others -- obviously is a matter of great concern to many
members of the public, in this case it simply is not a matter of
A7
“public concern" as that term of art has been used in the
constitutional sense. n19
n15 Kennedy v. Tangipahoa Parish Library Bd. of Control, 224
F.3d 359, 366 (Sth Cir. 2000). n16 Id. (quoting Connick, 461
U.S. at 147). n17 See, e.g., County of Allegheny v. ACLU, 492
U.S. 573, 106 L. Ed. 2d 472, 109 S. Ct. 3086 (1989). n18 See
Schenck v. United States, 249 U.S. 47, 52, 63 L. Ed. 470, 39 S.
Ct. 247 (1919) ("The character of every act depends upon the
circumstances m which it is done. The most stringent
protection of free speech would not protect a man in falsely
shouting fire m a theatre and causing a panic.") (citation
omitted). n19 Contrast the religious message Daniels seeks to
convey with the Supreme Court's characterization of the school
funding question at issue in Pickering:
The question whether a school system requires
additional funds is a matter of legitimate public
concern on which the judgment of the school
administration, including the School Board,
cannot, in a society that leaves such questions
to popular vote, be taken as conclusive. On
such a question free and open debate is vital to
informed decision-making by the electorate.
391 U.S. at 571-72.
Because Daniels's communication of his personal
religious views through the pin is not speech addressing a
"legitimate public concer," the departmental policy does not
offend the First Amendment. Application of the Pickering
test is thus precluded. n20 Yet, even were we to
follow the path we blazed in FLRA and assume arguendo that
A8
Daniels's speech does involve a public concem, we would
reach the same result. In FLRA, we held that "it is reasonable
to conclude that allowing border patrol agents to wear union
pins would interfere with an appearance to the public of
neutrality and impartiality, which is important to the mission
of all law enforcement agencies." n21
n20 See Connick, 461 U.S. at 146 (concluding that if
employee's speech "cannot be fairly characterized as
constituting speech on a matter of public concem, it is
unnecessary for us to scrutinize the reasons for her discharge");
Teague v. City of Flower Mound, 179 F.3d 377, 383 (Sth Cir.
1999). n21 955 F.2d at 1007.
Although it is true that unions are secular and religions
sectarian, the analogy between Daniels's case and FLRA is
tight. As recognized in FLRA, the city through its police chief
has the right to promote a disciplined, identifiable, and
impartial police force by maintaining its police uniform as a
symbol of neutral goverment authority, free from expressions
of personal bent or bias. The city's interest in conveying neutral
authority through that uniform far outweighs an officer's
interest in wearing any non-department- related symbol on it.
Daniels's facial challenge to the no-pins policy fails. [*505]
C. Grant of the City's Motion for Summary Judgment
Having reviewed de novo the legal claims Daniels
asserts on appeal, we affirm the district court's decision to
1. First Amendment
For the reasons already discussed, the district court
found that Arlington Police General Order No. 205.02(C)(2)(c)
as applied to Daniels did not infringe his constitutional nghts
of free speech, expression, or association. The court also found
that the no-pins policy is facially neutral and generally
applicable, and only incidentally burdens Daniels's free
exercise of his religion. Therefore, concluded the court, the rule
is acceptable under the teaching of Employment Div., Dep't of
Human Resources of Oregon v. Smith. n22
On appeal, Daniels appears to focus on a single
sentence in which the district court stated: "Plaintiff's argument
that wearing a cross on his police uniform is mandated by his
religion is wholly without merit." Daniels is correct in arguing
that it is improper for a court to assess what activities are
mandated by religious belief. n23 Particularly when read in
context with the court's pronouncement as a whole, we do not
view this sentence as a comment on Daniels's religious beliefs,
but rather as a rejection of the merits of his legal claim. Even
if the court's perhaps-unfortunate phrasing allows for Daniels's
interpretation, however, it does not undercut the validity of the
conclusion that the no-pins policy does not target religion but
only incidentally affects Daniels's individual religious practice,
and thus is acceptable under Smith.
n23 See id. at 887 (waming that "courts must not presume to
determine the place of a particular belief in a religion or the
plausibility of a religious claim").
Al0
Our conclusion that Daniels has not justified an
exception to the police department's no-pins policy is
analogous to the one we reached in rejecting a Muslim prison
inmate's complamt after he was denied an exemption from the
Texas prison policy requiring all inmates to be clean-shaven,
even though wearing a beard was a tenet of his faith. n24 After
noting that the grooming policy of the prison has a legitimate
penological justification, we found that the policy does not
violate Muslim prisoners' free exercise of religion, but "merely
removes or reduces one of many avenues by which they may
manifest their faith." n25 The same is equally true of Daniels's
complaint: The no-pins policy serves a_ legitimate
govemmental purpose in the context of uniformed law
enforcement personnel, and Daniels undoubtedly has myriad
altemative ways to manifest this tenet of his religion.
n24 See Green v. Polunsky, 229 F.3d 486 (Sth Cir. 2000).
Inmates with medical conditions precluding shaving were
allowed to wear short beards. n25 Jd. at 491.
2. Due Process and Title VII
The district court found that Daniels "presented no
admissible evidence to suggest that he was terminated for the
purpose of suppressing his rights protected by the First
Amendment." The court therefore rejected his Due Process and
Title VII 26 claims. Daniels contends that the
accommodations offered by the city were unreasonable,
presenting a fact issue on his Title VII claim. He also argues
that he raised a fact issue as to Chief Kunkle's [*506]
motivation, and whether Kunkle discriminated against religious
speech.
All
We agree with the district court that Daniels presented
no evidence that he had been terminated to suppress his First
Amendment rights. Therefore, no genuine issue of material fact
exists as to his claims under the Due Process Clause. n27 As
for his Title VII claims, we find that Daniels met that statute's
requirements for establishing a prima facie case of religious
discrimination, having produced summary judgment evidence
that (1) he had a bona fide religious belief that conflicted with
an employment requirement; (2) he informed his employer of
this belief} and (3) he was discharged for failing to comply
with the conflicting employment requirement. n28 With a
prima facie case established, the burden shifted to the employer
to show that it was unable reasonably to accommodate
Daniels's religious needs without undue hardship. n29 This the
city has done.
n27 See, e.g., Bishop v. Wood, 426 U.S. 341, 350, 48 L. Ed. 2d
684, 96 S. Ct. 2074 (1976); Williams v. Texas Tech Univ.
Health Scis. Ctr., 6 F.3d 290, 294 (5th Cir. 1993). n28 Weber
v. Roadway Express, 199 F.3d 270, 273 (5th Cir. 2000); Turpen
v. Mo.-Kan.-Tex. R.R. Co., 736 F.2d 1022, 1026 (5th Cir.
1984). n29 Turpen, 736 F.2d at 1026; see also Ansonia Bd. of
Educ. v. Philbrook, 479 U.S. 60, 68, 93 L. Ed. 2d 305, 107 S.
Ct. 367 (1986) ("By its very terms the statute directs that any
reasonable accommodation by the employer is sufficient to
meet its accommodation obligation.").
Al2
The only accommodation Daniels proposes is
unreasonable and an undue hardship for the city as a matter of
law. A police department cannot be forced to let individual
officers add religious symbols to their official uniforms. The
record shows, furthermore, that Daniels failed to respond to the
police chief's reasonable offers of accommodation. He cannot
reject the city's good-faith efforts at accommodation because
he did not fulfill his duty of cooperation. n30
n30 See, e.g., Brener v. Diagnostic Ctr. Hosp., 671 F.2d 141,
146 (Sth Cir. 1982) (‘Although the statutory burden to
accommodate rests with the employer, the employee has a
correlative duty to make a good faith attempt to satisfy his
needs through means offered by the employer.").
Finally, Daniels raised no fact issue as to Chief
Kunkle's motivation. The undisputed facts show the opposite
of pretext: The chief never denied that the cross is a religious
symbol. The parties disagree only as to whether such symbols
are appropriate accoutrements for police uniforms. Daniels's
Title VII claim fails.
3. Equal Protection
Daniels also contends that genuine fact issues exist as
to whether the city discriminated against religious speech by
allowing other forms of symbolic speech. Daniels testified that
he had seen, or heard about, many items of ornamentation worn
on uniforms during his thirteen years with the Arlington Police.
Former Chief Kunkle stated that before the no-pins order
became effective in November 1997, he had approved pins
promoting programs in which the city or police department
directly participated, such as the DARE anti-drug campaign. In
Al3
1990, Kunkle had encouraged officers to wear red ribbons
commemorating the 1985 slaying of federal drug agent Enrique
Camarena. Daniels also points to his own affidavit, in which he
Stated that he attended a supervisory meeting in January 1997,
in which Kunkle said he would not authorize the wearing of
cross pins on uniforms because they "might offend someone."
n31
ttt tee e ee eee eee Footnotes- ---------------
n31 A contemporaneously prepared summary of a January 9,
1997, employee representatives’ meeting states that any
ized pins were ordered removed: "Police officers must
accept that their appearance must be professional and neutral
and inoffensive to public sensibilities. Even
inoffensive religious symbols are not to be worn where they
can be viewed by the public because they may indicate to
others hostility to their own religious beliefs."
[*507] The district court nevertheless found that Daniels failed
to produce any competent summary judgment evidence that the
city discriminated against religious speech while allowing
other forms of symbolic speech. In fact, the court found that
the evidence showed Daniels was the only officer in the
Arlington Police. Department who had applied for an exception
to the no-pins policy since its enactment. Viewing the facts and
their inferences in the light most favorable to Daniels, we are
convinced that he has not proven any disparate treatment or
shown that any non-Christian pin request was approved or
otherwise handled differently from his. He has created no
genuine issue of material fact on this point.
4. Texas Laws and Constitution
Al4
The district court rejected Danie 's argument that the
police chiefs order to remove his pin from his uniform was
nlawfal under Texas law. The court held that the state
constitution and laws, including the Texas Commission on
Human Rights Act ("TCHRA"), afford Daniels no greater
protection on his claims than does federal law, and that he was
properly terminated for insubordination after refusing to
comply with the chief's order.
Daniels assigns error to these conclusions, the
Texas Supreme Court has held that the TCHRA is modeled on
Title VII of the federal Civil Rights Act, and should be
interpreted in the same manner. n32 Daniels's civil rights
cims under the state constitution are similarly unavailing
because tort damages are not recoverable for violations of the
Texas Constitution. n33
ssecssenoessnewees Footnotes- --------°7777777"
n32 See Chevron Corp. v. Redmon, 745 §.W.2d 314, 316 (Tex.
1987, no writ); see also Dallas Fire Fighters Ass'n v. City of
Dallas, 885 F. Supp. 915, 927 (N.D. Tex. 1995); Grant v. Joe
Myers Toyota, Inc., 11 S.W.3d 419, 423 (Tex. App. -- Houston
[14th Dist.] 2000, no pet.) (evaluating TCHRA religious
accommodation claim by applying federal interpretations of
Title VI). n33 See Gillum v. City of Kerrville, 3 F.3d 117, 122
(Sth Cir. 1993) (“Texas courts have not recognized a violation
of Article I, Section 8, as an actionable constitutional tort."),
Favero v. Huntsville Indep. Sch. Dist., 939 F. Supp. 1281, 1296
(S.D. Tex. 1996), aff'd, 110 F.3d 793 (Sth Cir. 1997) (rejecting
claim for damages under Tex. Const. art. I, § 6); City of
Beaumont v. Bouillion, 896 S.W.2d 143, 147 (Tex. 1995, writ
denied) ("We hold there is no implied private right of action for
damages arising under the free speech and free assembly
sections of the Texas Constitution.").
snwaccceessoesees End Footnotes- ---------777777"
III. CONCLUSION
We discern no merit in any of Daniels's assignments of error.
A police department does not violate the First Amendment
when it bars officers from adoming their uniforms with
individually chosen adornments, even when those decorations
include symbols with religious significance. Therefore, the
decision of the district court is
AFFIRMED.
Bl
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-11191
GEORGE DANIELS
Plaintiff - Appellant
V.
CITY OF ARLINGTON, TEXAS; THERON BOWMAN,
Chief of Police Arlington, Texas
Defendants - Appellees.
Appeal from the United States District Court for the
Northern District of Texas, Fort Worth
ON PETITION FOR REHEARING EN BANC
(Opinion 4/9/01, 5 Cir., : F.3d )
Before HIGGINBOTHAM, WIENER, and BARKSDALE,
Circuit Judges.
PER CURIAM:
(X) Treating the Petition for Rehearing En Banc as a Petition for
B2
Panel Rehearing, the Petition for Panel Rehearing is DENIED. No
member of the panel nor judge in regular active service of the court
having requested that the court be polled on Rehearing En Banc
(FED. R. App. P. and 5™ Cir. R. 35), the Petition for Rehearing En
Banc is DENIED.
( ) Treating the Petition for Rehearing En Banc as a Petition for
Panel Rehearing, the Petition for Panel Rehearing is DENIED. The
court having been polled at the request of one of the members of
the court and a majority of the judges who «.. in regular active
service not having voted in favor (FED. R. App. P. and 5™ Cir. R
35), the Petition for Rehearing En Banc is DENIED.
ENTERED FOR THE COURT:
ls/
United States Circuit Judge
Cl
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
GEORGE DANIELS )
)
VS. ) CIVIL ACTION NO.
) 4:99-CV-549-Y
CITY OF ARLINGTON, TEXAS )
ET AL. )
ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT
Pending before the Court is Defendants’ Motion for
Summary Judgment, filed April 20, 2000 [doc. # 22-2]. Having
carefully considered the motion, response, and reply, the Court
finds that the motion should be GRANTED.
The Court makes the following findings and conclusions:
1. For the reasons stated in this Court’s Order Denying
Plaintiff's Motion for Partial Summary Judgment, filed September
21, 2000, the Court finds that no genuine issue of material fact
exists as to the constitutionality of the application of the City of
ArlingtonPolice Department’s “no-pins” policy to the plamtiffunder
the freedom of speech, expression, and association clauses of the
First Amendment. The Court concludes that Plaintiff's speech was
not a matter of public concern, and thus not entitled to First-
Amendment protection under the standard set forthin Pickering v.
Board of Education, 391 U.S. 563 (1968).
C2
2. The Court further finds that the application of the no-
pins policy to Plaintiff did not violate rights under the Free Exercise
Clause. In Employment Division, Department of Human
Resources of Oregon v. Smith, 494 U.S. 872 (1990), the
Supreme Court ruled that no violation of the Free Exercise Clause
occurs where an otherwise valid law or policy of general
applicability interferes with a religious practice, provided the burden
is not the object of the law but merely an “incidental effect.” See id.
at 878-79. Courts have relied upon Smith to uphold neutral
governmental dress regulations that interfere with public employees’
First Amendment rights to freely exercise their religion. See, e.z.,
Seabrook v. City of New York, No. 99CIV. 9134 (HB), 1999
WL 694265 (S.D.N.Y. Sept. 7, 1999), aff’d, 210 F.3d 355 (2
Cir. 2000) (upholding policy requiring female correctional officers
to wear pants in violation of their religious faith). The courts
routinely have afforded great deference to law-enforcement and
military regulations whose incidental effects burden the exercise of
religious practices. See, e.g., Goldman v. Weinberger, 475 U.S.
503, 507 (1986); Kelley v. Johnson, 425 U.S. 238, 247 (1976).
The Court concludes that Arlington’s‘ ins” policy does
not, on its face, implicate Plaintiff's free-exercise rights. As applied,
the policy only incidentally burdens those rights. Plaintiff's argument
that wearing a cross on his police uniform is mandated by his
religion is wholly without merit.
3. The Court agrees with Defendants that Plaintiff has
failed to come forward with any competent summary judgment
evidence to suggest that Plaintiff's termination was motivated by a
desire to curtail his exercise of his constitutional rights. This Court
already has held that the chief of police may have unfettered
discretion to determine what types of speech, if any, may be
expressed as part of the police officer’s uniform. Plaintiff has
C3 -
presented no admissible evidence to suggest that he was terminated
for the purpose of suppressing his nghts protected by the First
Amendment. For this reason, the Court concludes that no genuine
issue of material fact exists as to Plaintiff's claims under the Due
Process Clause and under Title VII of the Civil Rights Act. “No
rational factfinder could conclude that the [city’s] action was
discriminatory. . . . [T]he plaintiff created only a weak issue of fact
as to whether the employer’s reason was untrue and there [is]
abundant and uncontroverted independent evidence that no
discrimination [has] occurred.” Reeves v. Sanderson Plumbing
Prods., 120 S. Ct. 2097, 2109 (2000).'
4. The Court concludes that Plaintiff's claim under the
Equal Protection Clause is without merit. There is no competent
discriminated against religious speech while they allowed other
forms of symbolic speech. The evidence shows that Plaintiff was
the only officer in the Arlington Police Department who ever
applied for an exception to the no-pins policy.
5. The Court concludes that Plaintiff's conspiracy claim
under 42 U.S.C. § 1985 fails because t does not allege that
Plaintiff was the subject of racial animus. See Deubert v. Gulf
Fed. Sav. Bank, 820 F.2d 754, 757 (5" Cir. 1987).
6. The Court concludes that Plaintiff is not afforded any
greater protection under the Texas constitution or under Texas law.
The Court holds that the police chief's order requiring Plaintiff to
1 Consequently, Plaintiff's claims fell under the Texas Commission
on Human Rights Act. See Chevron Corp. v. Redmon, 745 S.W.2d
314, 316-17 (Tex. 1987).
C4
remove his pin from his uniform was a lawful order. Plaintiff's
termination for insubordination after refusing to comply with that
order was therefore proper.
Therefore, for the reasons stated above, the Court finds
that Defendants’ Motion for Summary Judgment is GRANTED.
All claims im the above-styled and numbered cause are hereby
DISMISSED WITH PREJUDICE.
SIGNED October 6, 2000.
/s/
TERRY R. MEANS
UNITED STATES
DISTRICT JUDGE
D1
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
GEORGE DANIELS
CIVIL ACTION NO.
4:99-CV-549-Y
VS.
CITY OF ARLINGTON,
TEXAS, ET AL.
Or OQ Or Or 7?
ORDER DENYING PLAINTIFF’S
Pending before the Court is Plaintiff's Motion for Partial
Summary Judgment, filed February 14, 2000 [doc. #11-11].
Having carefully considered the motion, response, and reply, the
Court finds that the motion should be DENIED.
I. FACTS
Plaintiff George Daniels was employed by the City of
Arlington, Texas (“City”), as a police officer from August 1985 to
September 1998. In 1997, Plaintiff, who considers himself a
devout evangelical Christian, beganto wear a small, gold cross on
his shirt while working ina plain-clothes position. In January 1998,
Plaintiff was reassigned to a position that required him to wear a
uniform. He sought and was denied approval by the police chief to
wear the cross orhis uniform. Nevertheless, Plaintiff continued to
wear the cross while on active duty. Some time later, Plaintiff was
notified that he was in violation of the “‘no-pins” policy issued by the
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City’s chief ofpolice inGeneral Order No. 205.02(C)(2)(c), which
reads:
: No button, badge, medal, or similar symbol or item
not listed in this General Order will be worn on the
uniform shirt unless approved by the Police Chief
in writing on an individual basis.
(Def.’s App. at 4.) In addition to the written notification, the chief
of police gave Plaintiff several warnings and finally an order to
remove the cross from his uniform. The chief of police also
provided Plamtiff with several permissible alternative to
express his faith, including wearing a cross on a ring or bracelet or
agreeing to a reassignment toa plain-clothes position. After Plaintiff
refused to remove the cross from his uniform, he was terminated in
September 1998.
Inthe present motionfor partial summary judgment, Plaintiff
seeks a limited judgment by the Court that General Order No.
205.02(C)(2)(c) of the Arlington Police Department is
unconstitutional on its face as an mvalid prior restraint of speech
protected by the First Amendment. Plaintiff alleges that the general
order is overbroad, giving the police chief unfettered discretion to
determine what types of individual expression may be displayed on
an Officer’s uniform.
Il. SUMMARY JUDGMENT STANDARDS
Summary judgment is proper when the record establishes
that no genuine issue as to any material fact exists, and the moving
party 1s entitled to judgment as a matter of law. Fed. R. Civ. P.
56(c); Hill v. London, Stetelman, & Kirkwood, Inc., 906 F.2d
204, 207 (5" Cir. 1990). To determine whether an issue of
material fact exists, the Court must first consult the applicable
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substantive law to ascertain what fact issues are material to the
disposition of the case. Lavespere v. Niagara Mach. & Tool
Works, 910 F.2d 167, 178 (5" Cir. 1990), cert. denied, 114 S.
Ct. 171 (1993). The Court must then review the evidence
presented, viewing the facts and inferences drawn from those facts
in the light most favorable to the nonmoving party. Newell v.
Oxford Management Inc.,912 F.2d 793, 795 (5" Cir. 1990);
Medlin v. Palmer, 874 F.2d 1085, 1089 (5™ Cir. 1989).
However, the Court’s function is not to weigh the evidence and
determine the truth of the matter, but to determine whether there is
a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 249 (1986). Where the movant bears the burden of
proof on a claim or defense, he must establish all elements of the
claim or defense to prevail on summary judgment. Western Fire
Ins. Co. v. Copeland, 651 F. Supp. 1051, 1053 (S.D. Miss.
1987), aff'd, 824 F.2d 970 (5" Cir. 1987).
When the moving party has carried its summary judgment
burden, the respondent “must do more than simply show there is
some metaphysical doubt as to the material facts.” Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585
(1986). The respondent must produce evidence, not merely
argument, in response to a movant’s properly supported motion for
summary judgment. See Foval v. First Nat'l Bank of
Commerce, 841 F.2d 126, 129 (5" Cir. 1988); Martin v. John
W. Stone Oil Distrib., Inc., 819 F.2d 547, 549 (5" Cir. 1987).
III. DISCUSSION
Government, in its role as government, is severely restricted
by the First Amendment from placing restraints on speech. But
when government acts as employer, the constraints of the First
Amendment are less severe. In Pickering v. Board of Education,
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391 U.S. 563 (1968), the Supreme Court delineated the
constitutional restraints that exist on a public employer’s authority
to terminate employees for the type or content of their speech. The
Pickering test requires the Court to balance “‘the interests of the
[employee], as citizen, in commenting upon matters of public
concern and the interests of the State, as employer, in promoting
the efficiency of the public services it performs through its
employees.” Id. at 568. Additionally, a public employee’s speech
is entitled to First Amendment protection only when that speech
involves a matter of public concern.' See Connick v. Myers 461
U.S. 138, 146 (1983) (“When employee expression cannot be
fairly considered as relating to any matter of political, social, or
other concern to the community, govemment officials should enjoy
wide latitude in managing their offices, without intrusive oversight by
the judiciary in the name of the First-Amendment.”).
The purpose of the Pickering balancing test is to ensure the
“effective and efficient fulfillment of [the govemment’s]
responsibilities to the public.” Id. at 150. “To this end, the
government, as anemployer, must have wide discretion and control
over the management of its personnel and intemal affairs.” Id. at
151. Particularly relevant to this concern is the nature of the
! For purposes of ruling on the present motion for partial
summary judgment, the Court need not decide whether Plaintiff's
speech involved a matter of public concern as opposed to a matter
of personal interest. Plaintiff's motion seeks only a declaratory
judgment that General Order No. 205.02(C\(2Xc) is an
unconstitutionally overbroad restriction of speech, regardless of its
application. See Scott v. Meyers, 191 F.3d 82, 86 (2™ Cir. 1999);
but See Wilson v. City of Littleton, 732 F.2d 765, 769 (10" Cir.
1984) (holding First Amendment did not protect police officer who
wore black shroud across his badge to mourn death of officer from
another town; not a matter of public concern).
DS
employment relationships that would be jeopardized by the speech:
“when close working relationships are essential to fulfillmg public
responsibilities, a wide degree of deference to the employer’s
judgment is appropriate.” Id.
The Supreme Court has emphasized that the state-interest
element of the Pickering test “focuses on the effective functioning
of the public employer’s enterprise.” Rankin v. McPherson, 483
U.S. 378, 388 (1987); see also Jones v. Collins, 132 F.3d 1048,
1053 (5" Cir. 1988) (“[T]he employee’s interest in ‘commenting on
matters of public concern’ must outweigh the public employer’s
interest ‘in promoting the efficiency of the public services iv’
performs through its employees.””) (quoting Pickering).
General Order No. 205.02(C)(2)(c) ofthe Arlington Police
Department prohibits officers from wearing any button, badge,
medal, or similar symbol on the uniform shirt without first obtaining
written approval from the police chief. Obviously, the general order
on its face restricts officers’ expression on all subjects, involving
matters of both public and private concern. The general order also
gives the police chief unfettered discretion to determine what
symbols, if any, may be worn on the uniform shirt. The Court must
decide whether the general order, on its face, is unconstitutional
under the Pickering standard.
In Goldman v. Weinberger, 475 U.S 503 (1986), the
Supreme court upheld the application ofan Am Force regulation to
a Jewish serviceman who was prohibited from wearing a yarmulke
while in uniform.” The Court stated that deference should be given
to military uniform regulations when a public employee’s First
Amendment rights are at issue. Id. at 507. The Court deferred to
the “professional judgment of the Air Force . . . that the traditional
. The regulation prohibited servicemen from wearing headgear
while indoors. See Goldman, 475 U.S. at 505.
|
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outfitting of personnel in standardized uniforms encourages the
subordination of personal preferences and identities in favor of the
overall group mission. Uniforms encourage a sense of hierarchical
unity by tending to eliminate outward individual distinctions except
for those of rank.” Id. at 508. The military’s need for “instinctive
obedience, unity, commitment, and esprit de corps” outweighed the
servicemen’s interest in exercising his religious beliefs. Id. at 507.
The Fifth Circuit has applied Goldman to uphold
disciplinary actions against INS agents who wore union lapel pins
on their uniforms. See United States Dept. of Justice v. FLRA,
955 F.2d 998 (5 Cir. 1992). The court held that a law
enforcement agency’s anti-adomment policy is entitled to deference
when weighing the government’s interest against the employee’s
interest under the Pickering standard. See Id. at 1006. The court
found that “allowing border patrol agents to wear union pins while
on duty would create factionalism, interfere with discipline and
create an appearance of partiality.” Id. The court held that the
INS’s interest in promoting the efficiency of the border patrol
outweighed the agents’ interest in wearing union pins while on duty,
justifying the “minimal intrusion” of the free-speech rights of union
employees.’ See Id. at 1007.
Other courts have recognized the interest of a governmental
entity in preserving the appearance of impartiality. See Thomas v.
Whalen, 51 F.3d (1285 (6% Cir. 1995) (upholding disciplinary
action against police officer who made unauthorized public
presentations on behalf of political Organization while in uniform);
Paulos v. Breier, 507 F.2d 1383 (7 Cir. 1974) (recognizing and
protecting interest of municipality in preserving nonpartisan police
. The court concluded that the agents could continue to
express their support for unions “in myriad other ways.” FLRA, 955
F.2d at 1007.
D7
force and appearance thereof); Detroit Fire Fighters Ass'n,
Local 334 v. City of Detroit, 508 F. Supp. 172 (E.D. Mich.
1981) (permitting city to restrict public appearance of uniformed
fire-fighters to advocate defeat of proposed character amendment),
Connealy v. Walsh, 412 F. Supp. 146, 158 (W.D. Mo. 1976)
(upholding juvenile court’s ban on partisan bumper stickers on
employee cars).
Courts also have upheld numerous police grooming
regulations on the basis that they were rationally related to the
promotion of safety of persons and property. See, e.g., Quinn v.
Muscare, 425 U.S. 560 (1976); Weaver v. Henderson, 984 F.2d
11, 13 (1* Cir. 1993); Hottinger v. Pope Cty., 971 F.2d 127 (3
Cir. 1992); Rathert v. Village of Peotone, 903 F.2d 510 (7 Cir.
1990); Marshall v. District of Columbia Gov’t, 559 F.2d 726
(D.C. Cir. 1976).
In the present case, the city asserts that symbols such as
union pins and religious emblems worn ona police officer’s uniform
can create factionalism and the appearance of partiality to those
persons who do not share that officer’s political or religious beliefs.
The Court concludes that the city’s interest in fostering the
appearance of a neutral police force is entitled to great deference.
Moreover, the City’s interest outweighs its officers’ interest in
expressing matters of public concern by wearing symbols on their
uniforms. A police officer’s uniform is not a forum for fostering
public discourse or expressing one’s personal beliefs. The City has
a strong interest in preventing the appearance of endorsing
particular viewpoints or religious beliefs. Succinctly stated, a
uniform with a cross, a star, a crescent, or a political button
attached to it is not a “uniform.”
: See Webster’s Ninth New Collegiate Dictionary 1290 (9°
ed. 1991) (“of the same form with others: conforming to one rule or
D8
The Court further concludes that the general order is only
a minimal intrusion on the First Amendment rights of police officers.
The regulation does not prohibit officers from wearing religious
symbols apart from their uniforms while on active duty. For
example, the regulation does not prohibit an officer’s wearing a
religious symbol on his ring or on his bracelet. Although wearing
sucha symbol in this manner would be just as visible and meaningful
as wearing the cross on his shirt, the expression is more readily
interpreted by others as a personal statement rather than as an
official endorsement by the government.
The Court finally concludes that the grant of unfettered
discretion afforded the police chief under the general order is
constitutionally permissible. Plaintiff has cited no precedent
suggesting that the government, when acting as employer must
follow a set of quasi legislative guidelines to ensure that its
administrative decisions satisfy the requirements of the First
Amendment. Indeed, to ensure effective administrationofthe police
department, the police chief must have final discretion to determine
what shall constitute the uniform of the department.’ The sole
authority of the police chief to make exceptions to the general rule
is wholly consistent with his administrative role. That role permits
him to determine what speech, if any, may be expressed as part of
the police officer’s uniform.
Therefore, for the reasons stated above, Plaintiff's Motion
for Partial Summary Judgment is DENIED.
mode: CONSONANT”).
. See, e.g., Goldman, 475 U.S. at 509 (“the desirability of
dress regulations in the military is decided by the appropriate military
officials, and they are under no constitutional mandate to abandon
their considered professional judgment.”).
D9
SIGNED: September 21, 2000.
/S/
TERRY R. MEANS
UNITED STATES DISTRICT JUDGE
El
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
GEORGE DANIELS
CIVIL ACTION
4:99-CV-549-Y
VS.
CITY OF ARLINGTON,
TEXAS, ET AL.
QP Q Gr Or r «Or
FINAL JUDGMENT
Pursuant to the order issued this same day, and Federal
Rule of Civil Procedure 58,
It is hereby ORDERED, ADJUDGED, and DECREED
that all claims in the above-styled and numbered cause are
DISMISSED WITH PREJUDICE. All costs under 28 U.S.C. §
1920 shall be borne by the plaintiff.
SIGNED: October 6, 2000.
/S/
TERRY R. MEANS
UNITED STATES DISTRICT JUDGE
Fl
Excerpt of Minutes of Non-Supervisory Employee
Representatives’ Meeting, January 9, 1997,
page 3 (emphasis added)
Earrings, Knives, and Pins: Male commissioned personnel wear of
earrings is not consistent with the professional image the department
wishes to portray and are therefore prohibited while the employee
is on duty or is acting ma law enforcement capacity. Similarly, the
folding knives that some officers have begun using that clip to the
pocket and are exposed to view are prohibited. All knives must be
in a scabbard or concealed within a pocket. As to pins or other
uniform accouterments, only those items specified in General
Orders are permitted. Deputy Chief Shipp is having a survey
conducted to see what officers have been wearing (which now
must be removed) and all items will be reviewed by command
staff to determine whether or not they willbe allowed on a case
by case basis. Police officers must accept that their
appearance must be professional and neutral and inoffensive
to public sensibilities. Even seemingly inoffensive religious
symbols are not to be worn where they can be viewed by the
public because they may indicate to others hostility to their
own religious beliefs.
Gl
ARLINGTON POLICE DEPARTMENT
INFORMATIONAL MEMO
TO: ALL POLICE PERSONNEL
FROM: DAVID M. KUNKLE, CHIEF OF POLICE
REF: RED RIBBON WEEK
DATE: OCTOBER 19, 1990
Sunday, October 21, 1990 is the beginning of Red Ribbon Week,
a week that commemorates the brutal slaying of Federal Drug
Agent, Enrique Camerena, in 1985. During this week, citizens all
across the country will demonstrate their commitment to leading a
drug free lifestyle by wearing red ribbons.
The Police Department has been supplied with Red Ribbon Week
ribbons, courtesy of the Arlington Medical Auxiliary. Each
employee is encouraged to wear or display a red ribbon during the
week to show their support for Red Ribbon Week and their
commitment to lead a drug-free lifestyle. Ribbons will be
distributed to the receptionist in I.$.B. and Administration, both
patrol briefing areas, and the Training Center.
DEPOSITION
EXHIBIT
a es
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