Opposition Brief — Daniels v. City of Arlington

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n ee Supreme Court, U.S. |

Lo FILED

.

No. 01-187 AUG 29 2001

of OF THE CLERK

In The Bu ocicetond THE CL

Supreme Court of the United States

¢

GEORGE DANIELS,

Petitioner,

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

‘

RESPONDENTS’ BRIEF IN OPPOSITION

+

FRANK WaItTE

Assistant City Attorney

Counsel of Record

EliZABETH LUTTON

Assistant City Attorney

BARBARA Heptic

Assistant City Attorney

Post Office Box 231

Arlington, Texas 76004-0231

(817) 459-6878

(817) 459-6897 (FAX)

Arlington City Attorney’s Office

Counsel for Respondents

City of Arlington, Texas and

Theron Bowman, Chief of Police,

Arlington, Texas

COCKLE LAW BRIFF PRINTING CO, (800) 225-6464

OR CALL COLLECT (402) 342-2831

TABLE OF CONTENTS

Page

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EE bs dw Wek ha kaw See de ASA RAN ees ee aa iii

PRR TIUNTE GOR BRUM GP ak sks cag cd ecnacvese 1

SUMMARY OF RESPONDENTS’ ARGUMENT...... 3

REASONS FOR DENYING THE PETITION FOR

_. __: CER Seep car re re ae earn Pe ee rer ee 3

I. The Decision is Consistent With This Court’s

Prior Holding That a “Rational Basis” Standard

is Applicable for Reviewing Restrictions on the

Appearance of Uniformed Military and Police

PP ee ers sr re ere ee ree 3

II. The Fifth Circuit Assumed Arguendo That Peti-

tioner’s Religious Expression Was a Matter of

Public Concern Protected Under Pickering ..... 5

III. Petitioner Misstates the Law By Confusing Stan-

dards for Reviewing Government Censorship

With Standards for Justifying Speech Restriction

On Government Employees ................... 6

IV. The “Rational Basis” Analysis of Employment

Division, Department of Human Resources of Ore-

gon v. Smith Was Properly Applied to Peti-

tioner’s Free Exercise of Religion Claim....... 8

PRI i £4 Ween wh cde eh eas Reh a ene uae 12

ii

TABLE OF AUTHORITIES

Page

Cases

Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60 (1986) .... 11

Board of Educ. v. Mergens, 496 U.S. 226 (1990) .......

Brown v. Hot, Sexy and Safer Productions, Inc., 68

F.3d S25 (lst Cie, SORSE ciscws vamesecsencesnasscene 9

Burnside v. Byars, 363 F.2d 744 (5th Cir. 1966) ........ 7

City of Lakewood v. Plain Dealer Publishing Co., 486

U.S. 750 (2906) .. .<sxssusassbaneeuaeeasuaeeeeeaaans 7

Connick v. Myers, 461 U.S. 138 (1983)..... 3, 4, 5, 6, 7, 8

Employment Division, Department of Human

Resources of Oregon v. Smith, 494 U.S. 872

(1990) .......0s<800s seweeeeee eee eeen ea aenan 8, 9, 10

Goldman v. Weinberger, 475 U.S. 503 (1986)....... 4,5, 8

Hernandez v. Commissioner, 490 U.S. 680 (1989)....... 11

Kelley v. Johnson, 425 U.S. 238 (1976)............... 4,5

Kissinger v. Board of Trustees, 5 F.3d 177 (6th Cir.

19OS) . . 0.0 cccndcanh agua ieels Cee nena a aoe 9

Miller v. Reed, 176 F.3d 1202 (9th Cir. 1999) ......... 10

Pickering v. Board of Educ., 391 U.S. 563 .

(2968) . . «i s000456 Gan cae es 3, 4, 5, 6, 7, 8

Swanson v. Gutherie Indep. Sch. Dist., 135 F.3d 694

(20th Cie, S008)... os. ccktasewatcctitesseuse canmevee’ 9

Tinker v. Des Moines Indep. Sch. Dist., 393 U.S. 503

(20GB) . . oo wonsouscenscuewcenehan Auer een —nceEeeas 7

United States Dep't of Justice v. Federal Labor Rela-

tions Auth., 955 F.2d 998 (5th Cir. 1992)............ +

ill

TABLE OF AUTHORITIES - Continued

Page

United States v. Board of Educ., 911 F.2d 882 (3rd

TCLS Lah rca eaiak cb eases cubes aons cca 11

Vandiver v. Hardin County Bd. of Ed., 925 F.2d 927

Rs nS be 4 hedge sadn GAs sno bie abdeen'e 9

Waguespack v. Rodriguez, 220 B.R. 31 (Bankr. W.D.

ans Case A ASN SWS Ans 5444s take nan ees 9

Warner v. City of Boca Raton, 64 FSupp.2d 1272

Sgn vnaubehe cus ecedsscdsaccbacesas 9

Waters v. Churchill, 511 U.S. 661 (1994)............... 7

Unrtep States CONSTITUTION

First Amendment United States Constitution .... passim

FOREWORD

Citations to the Record on Appeal before the Fifth

Circuit will be referred to as “Rec.” followed by the page

number to which the reference is made. Citations to the

Appendix attached to the Petition for Writ of Certiorari

will be referred to as “App.” followed by the page

number to which the reference is made.

RESPONDENTS’ BRIEF IN OPPOSITION

Respondents City of Arlington, Texas and Theron

Bowman, Chief of Police, Arlington, Texas, request that

this Court deny the Petition for Writ of Certiorari (“Peti-

tion”) of George Daniels (“Petitioner”) seeking review of

the Fifth Circuit’s opinion in this case reported at 246 F.3d

500 (5th Cir. 2001).

STATEMENT OF THE CASE

Petitioner’s Statement of the Case, Question Pre-

sented for Review, and Reasons for Granting Review

contain two significant misstatements of fact.

First, contrary to Petitioner’s rendition, the evidence

in the summary judgment record does not show that the

Police Chief ever approved or allowed items of personal

symbolic expression to be worn by uniformed police offi-

cers. The record reflects that the City has a written policy

which is intended to strictly control the appearance of

uniformed police officers — it includes the so-called “no-

pins” policy. [Rec. 208-212.] The Chief enforced these

restrictions by meeting with employees and personally

emphasizing the importance of a professional public

image. [App. F1.] Moreover, there is no evidence that the

Chief approved, or even had knowledge of the various

personal items Daniels says he saw, or heard about, being

worn by various officers during his thirteen years of

employment. The Chief did not, and would not, approve

any item that was not related to law enforcement. [Rec.

299.] Daniels was the only officer to make a written

request to wear a personal item. [Rec. 295.] While his

request was denied, he failed to show that the Chief had

given approval to any other officer to wear a personal

item on his uniform. Petitioner admitted that he had no

personal knowledge of items not listed in the General

Orders being approved by the Chief. But, he relied

entirely on his own conclusory, incompetent affidavit and

misstatements of the Chief’s deposition testimony in

attempting to create a genuine issue of fact over Peti-

tioner being “singled out.” [Rec. 435, 482-84, and 534-35.]

The district court and the Fifth Circuit both found no

discrimination after reviewing the competent summary

judgment evidence. [App. A11-13; C3.] Accordingly, Peti-

tioner’s characterization that “numerous pins were being

conspicuously worn” and “allowed” by the Chief is inac-

curate, misleading, and unsupported by the record. [Peti-

tion 18.]

Second, contrary to Petitioner’s contention, the City

did come forward with evidence of its legitimate govern-

mental interest in regulating the appearance of its police

uniform. [Rec. 214-215; 296.] The record reflects that the

Chief articulated the desire to maintain the uniform as a

symbol of neutral government authority, free from

expressions of personal bias, in a well-disciplined, and

professional police department. Id. He specifically cited

his desire to prohibit items of personal expression not

related to law enforcement as the basis of his decision to

deny Petitioner’s request to wear a cross on his uniform.

Both the district court and the Fifth Circuit cited this

evidence. [Rec. 296; App. A8; D7.] While the Petitioner

may discount and challenge this rationale, it is inaccu-

rate, misleading, and unsupported by the record to argue

that this evidence was not proferred.

,

bl

SUMMARY OF RESPONDENTS’ ARGUMENT

The Petition for Writ of Certiorari should be denied.

The uniform restrictions of the police department are

content neutral and have a rational basis in promoting

the efficiency of the department. Any effects the restric-

tions have on Petitioner’s free speech or free exercise of

religion are incidental. The Fifth Circuit was correct in

holding that the restrictions pass constitutional muster

under both the “rational basis” standard and “balancing

of the interests” standard. Petitioner’s complaints about

the manner in which the Pickering/Connick “balancing”

test was applied by the Fifth Circuit do not show a

conflict between the circuits on any matter dispositive to

this case. Petitioner’s argument that a “strict scrutiny”

standard should be applied to review police uniform

regulations is meritless in the context of this public

employment law case. However, if “strict scrutiny” is the

applicable standard of review, the challenged restrictions

meet this standard.

+

REASONS FOR DENYING THE PETITION FOR WRIT

I.

The Decision is Consistent With This Court’s Prior

Holding That a “Rational Basis” Standard is Applicable

for Reviewing Restrictions on the Appearance of Uni-

formed Military and Police Personnel.

This dispute arose in the specific context of a City

regulating the appearance of its uniformed police officers.

The City has not adopted a rule regulating the dress of

the general citizenry or even non-police municipal

employees. In this factually narrow context, this Court

has given clear guidance on the appropriate analytical

framework for reviewing claims that constitutional rights

to free expression have been violated. In Kelley v. Johnson,

425 U.S. 238 (1976), this Court upheld police uniform and

grooming standards against numerous theories of consti-

tutional rights violations. Ten years later, in Goldman v.

Weinberger, 475 U.S. 503 (1986), this Court upheld military

uniform regulations barring the wearing of a yarmulke

from a First Amendment challenge.

The Fifth Circuit started its analysis in the present

case by noting that the City “surely passes” the deferen-

tial “rational basis” review standard applied by this

Court in Kelley and Goldman. [App. A5.] Accordingly, this

case is properly resolved in favor of the City under these

precedents. However, the Fifth Circuit also held that the

challenged uniform restrictions survived the stricter stan-

dard for reviewing restrictions on government employee

speech promulgated by this Court in Pickering v. Board of

Educ., 391 U.S. 563 (1968). [App. A5.] The Pickering stan-

dard balances “the interest of the [employee], as a citizen,

in commenting upon matters of public concern and the

interests of the state, as employer, in promoting the effi-

ciency of the public services it performs through its

employees.” Id. at 568; see also Connick v. Myers, 461 U.S.

138 (1983). While the Fifth Circuit reached the correct

result, application of the Pickering/Connick test was clearly

superfluous to the disposition of this case. The court

applied the less deferential “balancing of the interests”

standard of Pickering/Connick, in order to follow its anal-

ysis in United States Dep't of Justice v. Federal Labor Rela-

tions Auth., 955 F.2d 998 (5th Cir. 1992) (upholding

regulations prohibiting Border Patrol agents from wear-

ing union pins on their uniform).

Because the Fifth Circuit was correct in recognizing

that Kelley and Goldman were controlling Supreme Court

precedent, and Petitioner has not cited and discussed

these cases in his Brief, this Petition should be denied.

II.

The Fifth Circuit Assumed Arguendo That Petitioner’s

Religious Expression Was a Matter of Public Concern

Protected Under Pickering.

The City’s police uniform standards do not, on their

face, target free speech or religious expression. The dis-

trict court and Fifth Circuit agreed that the restrictions

were facially neutral. On these facts, it is not necessary to

apply the Pickering/Connick “balancing” standard. The

deferential “rational basis” standard is appropriate, as

discussed above. Nevertheless, recognizing that a “bal-

ancing” test has been applied by numerous courts to

review various restrictions placed on speech of public

employees, the Fifth Circuit used it as a doctrinal frame-

work in this case. The Fifth Circuit first addressed

whether Petitioner was engaging in speech relating to a

“legitimate public concern” by symbolically expressing

his religious affiliation. [App. A6.] The court noted that

Petitioner’s speech in “content, form, and context” was

intensely personal and not a matter of public concern. Id.

But, the Fifth Circuit went on to assume, arguendo, that

Petitioner’s speech did involve a public concern. In other

words, the case was not decided on this issue. For this

reason, the Petitioner fails to show that the decision is in

conflict with-the decision of any other circuit finding

religious expression to be a matter of public concern

under Pickering. The Fifth Circuit’s determination that

Petitioner’s speech was not on a matter of public concern

is well reasoned, but did not decide the outcome of the

case.

Moreover, the Petitioner’s argument that the lower

courts erred by refusing to proceed with a full Pickering

analysis is incorrect. [Petition 21.] It is clear that, while

both the district court and Fifth Circuit did not find

Petitioner was speaking on a matter of public concern,

both courts went on to balance the interests of the parties

in order to determine whether the challenged restrictions

were constitutionally permissible. [App. A8; D5-8.]

Accordingly, no conflict in decisions exists between the

Fifth Circuit and other circuits over whether the Picker-

ing/Connick standard should be applied in cases that

involve the religious speech of public employees. For this

reason, the Petition should be denied.

Il.

Petitioner Misstates the Law By Confusing Standards

for Reviewing Government Censorship With Standards

for Justifying Speech Restriction On Government

Employees.

The lower courts did not accept Petitioner’s argu-

ment that the proper test for reviewing the City’s police

uniform regulations should be “strict scrutiny.” Nor did

the Fifth Circuit apply the censorship analysis Petitioner

argued was appropriate to attack the alleged “unfettered”

discretion of the Police Chief to control the appearance of

the City’s police uniform. Now, Petitioner argues in the

public employment law framework of Pickering/Connick

that the City must establish that the forbidden conduct

“materially and substantially interfere[s] with require-

ments of appropriate discipline.” [Petition 9, citing Tinker

v. Des Moines Indep. Sch. Dist., 393 U.S. 503, 509 (1969),

citing to Burnside v. Byars, 363 F.2d 744, 749 (5th Cir.

1966).] Additionally, Petitioner contends that the City

must “establish neutral criteria to insure that the licens-

ing decision is not based on the context or viewpoint of

speech being considered.” [Petition 26, citing City of Lake-

wood v. Plain Dealer Publishing Co., 486 U.S. 750, 782

(1988).]

Petitioner, however, is wrongly grafting the First

Amendment jurisprudence establishing the heavy burden

of the government in the context of censorship cases, and

is attempting to apply it to the City under the Pickering/

Connick test. The teaching of this Court in Waters v.

Churchill, 511 U.S. 661, 672 (1994), is contrary to Peti-

tioner’s argument. “Constitutional review of government

employment decisions must rest on different principles

than review of speech restraints imposed by government

as a sovereign.” Id. at 674. This is because, “the govern-

ment interest in achieving its goals as effectively and

efficiently as possible is elevated from a relatively subor-

dinate interest when it acts as a sovereign to a significant

one when it acts as an employer.” Id. at 675. The govern-

ment cannot restrict the speech of the public at large just

in the name of efficiency. But, where the government is

employing someone for the very purpose of effectively

achieving its goals, such restrictions may well be appro-

priate. Id.

Petitioner fails to acknowledge that the record estab-

lishes the Arlington Police Department has a need for

uniformity, discipline, and the appearance of neutrality

and impartiality. [Rec. 213-15.] Under the applicable def-

erential basis standard, this rationale requires no evi-

dence of harm to government operations in order to

enforce uniform restrictions. See Goldman, at 508; and

Kelley, at 248. Moreover, even under the stricter Pickering/

Connick standard, this Court has “given substantial

weight to government employers’ reasonable predictions

of disruption.” Waters, at 673. (Deference given to gov-

ernment employer’s prediction of harm used to justify

restrictions on employee speech without evidence of tan-

gible, present interference with the agency’s operation.)

Therefore, Petitioner’s grafting “strict scrutiny” stan-

dards onto the City’s burden under the Pickering/Connick

test is contrary to the decisions of this Court. The Fifth

Circuit correctly found that the City’s interest in regulat-

ing the appearance of its police uniforms outweighed the

interest of Petitioner to identify himself as a Christian by

wearing a cross on his uniform. [App. A8.] Because the

interests of the parties were properly balanced without

applying “strict scrutiny” to the City’s rationale for regu-

lating the appearance of its police uniform, the Petition

should be denied.

IV.

The “Rational Basis” Analysis of Employment Division,

Department of Human Resources of Oregon v. Smith Was

Properly Applied to Petitioner’s Free Exercise of Reli-

gion Claim.

The Fifth Circuit held that Petitioner’s free exercise

of religion claim fits squarely within this court’s decision

in Smith, 494 U.S. 872 (1990). The Arlington Police

Department’s uniform policy is a “valid and neutral law

of general applicability,” which proscribes conduct that

Petitioner’s religion allegedly prescribes. Smith, at 879.

Therefore, the “rational basis” test under Smith should be

used to evaluate his claim.

However, Petitioner argues that his case is a “hybrid”

claim in which the “strict scrutiny” test applies. See Smith,

at 881. In general, courts have not allowed parties to

evade the holding of this court in Smith by simply assert-

ing multiple claims. See Kissinger v. Board of Trustees, 5

F.3d 177, 180 (6th Cir. 1993); Vandiver v. Hardin County Bd.

of Ed., 925 F.2d 927, 933 (6th Cir. 1991); Warner v. City of

Boca Raton, 64 F.Supp.2d 1272, 1288, n.12 (S.D. Fla. 1999).

Otherwise, a creative pleader need only assert a variety

of claims, thus creating a “hybrid” case triggering “strict

scrutiny” analysis. By this tactic, “it would be extremely

difficult to imagine any free exercise claim that would not

fit into the ‘hybrid’ classification.” Waguespack v.

Rodriguez, 220 B.R. 31, 35-36 (Bankr. W.D. La. 1998). Thus,

the Smith holding would be nullified and avoided by

merely pleading multiple claims.

Instead, to assert a true “hybrid” claim, it is not

sufficient to simply invoke another constitutional claim to

trigger “strict scrutiny.” Swanson v. Gutherie Indep. Sch.

Dist., 135 F.3d 694, 700 (10th Cir. 1998). The plaintiff must

show interference with an independently protected con-

stitutional right. Brown v. Hot, Sexy and Safer Productions,

Inc., 68 F.3d 525, 539 (ist Cir. 1995). At its core, Peti-

tioner’s claim is a free exercise claim in which he objects

to regulations prohibiting his wearing a gold cross on his

police uniform. He does not assert any other interference

a iat |

10

with his right to speak or to exercise his religion. In this

situation, his First Amendment free speech claim is indis-

tinguishable from his First Amendment free exercise

claim. Petitioner’s own arguments confirm this because

he uses both claims interchangeably in his Brief. Conse-

quently, he cannot show an independently protected con-

stitutional right, as required by this Court’s holding in

Smith, necessary to establish a “hybrid” claim.

Moreover, he has never clearly articulated or estab-

lished his freedom of association claim. In order to estab-

lish a “hybrid” claim, he must at least establish a

colorable separate claim. Miller v. Reed, 176 F.3d 1202,

1207 (9th Cir. 1999). Again, a plaintiff cannot force a

“strict scrutiny” analysis merely by combining a free

exercise claim with an utterly meritless claim of the viola-

tion of another fundamental right. Miller, at 1208.

Since Petitioner cannot show the violation of a dis- |

tinct fundamental right, he cannot show that he has \

asserted a “hybrid” claim to preclude the application of

the “rational basis” test dictated by Smith. Therefore, the

Fifth Circuit was correct in considering his claim under

the “rational basis” test. The police department clearly

has a rational basis for the uniform rule, which promotes

the neutral appearance of its officers. For this reason, his

Petition should be denied.

Alternatively, the record shows that the City should

prevail even under a “strict scrutiny” test. First, Peti-

tioner failed to make a threshold showing that being

restricted from wearing a cross on a police uniform is a

substantial burden on his exercise of religion. Petitioner

was afforded the options of: (1) wearing a cross ring or

11

bracelet instead of a pin on the uniform; (2) wearing the

pin under his uniform shirt or collar; or (3) transferring to

a non-uniformed position, where he could continue to

wear the pin. [App. 2.] In light of these accommodations,

the district court correctly found the City’s “no-pins pol-

icy” to be only a “minimal intrusion on the First Amend-

ment Rights of police officers.” [App. D8.] This finding is

consistent with the decisions of this Court. See Hernandez

v. Commissioner, 490 U.S. 680, 699; and Ansonia Bd. of Educ.

v. Philbrook, 479 U.S. 60, 61 (1986).

Second, the Fifth Circuit recognized that the “form

[of Petitioner’s speech (the cross pin)] melds with author-

ity symbolized by the police uniform, running the risk

that the City may appear to endorse Daniels’ religious

message.” [App. 6.] This Court has instructed, “there is a

crucial difference between government speech endorsing

religion, which the Establishment Clause forbids, and

private speech endorsing religion, which the free speech

and free exercise clauses protect.” Board of Educ. v.

Mergens, 496 U.S. 226, 250 (1990). By demanding that a

police uniform be opened as a forum for free speech and

free exercise, Petitioner seeks to create public confusion

over the authority endorsed and represented by the sym-

bol of an official police uniform. The City has a compel-

ling governmental interest in preserving religious

neutrality that justifies limiting Petitioner’s freedom to

practice his religion by wearing a cross on a police uni-

form. See United States v. Board of Educ., 911 F.2d 882, 889 _

(3rd Cir. 1990). Thus, the record establishes that Peti-

tioner failed to establish a substantial burden on his

religious exercise, and the City established a compelling

12

government interest in restricting his personal modifica-

tion to the police uniform. For these reasons, too, the

Petition should be denied.

¢

CONCLUSION

For all or any of the foregoing reasons, this Court

should deny the Petition for Writ of Certiorari.

Respectfully submitted,

FRANK WAITE

Assistant City Attorney

ELIZABETH _LUTTON

Assistant City Attorney

BARBARA HEPTIG :

Assistant City Attorney

Post Office Box 231

Arlington, Texas 76004-0231

(817) 459-6878

(817) 459-6897 (FAX)

Arlington City Attorney’s Office

Counsel for Respondents

City of Arlington, Texas and

Thereon Bowman, Chief of Police,

Arlington, Texas

August 29, 2001