sideburns longer than permitted by Directive 13 can impair the effectiveness and safe use of the Scott Air Pak since the sideburns artificially add a deviation from normal facial contours and prevent mask-to-skin contact in the area where the mask must seal. Thus sideburns growing in the area of the face mask seal increase the likelihood of mask leakage. The same problem is encountered by a fireman with a beard or with long hair combed over the forehead so as to interfere with the seal.
Plaintiffs' expert witness was Dr. Harvey P. Utech.
Dr. Utech agreed with Dr. Irwin that beards or sideburns growing into the seal area can impair the effectiveness and safe use of the Scott Air Pak. Accordingly, we have no difficulty in finding that the wearing of beards or sideburns or long hair in front worn in the area of the face piece seal presents a safety hazard to a fireman.
2. The Pressure Demand System as an Alternative
The principal thrust of Dr. Utech's testimony was that the Philadelphia Fire Department is not using the latest and safest self-contained breathing equipment, and that the latest equipment would be substantially safer for a long-haired or bearded fireman to use than the system presently in use. The newer system is a Scott Air Pak which delivers air on a pressure-demand system. This device is basically the same as the older system except that it incorporates an air valve which continually maintains a positive air pressure inside the mask. The safety of the pressure-demand system lies in the fact that in the event of a leak in the face piece seal, air is forced outward through the leak, thus preventing entry into the mask of gases or particles from outside. Dr. Utech testified that the pressure-demand system provides a significantly greater degree of protection from the dangers of inboard leakage than that provided by the demand system. He supported this conclusion by reference to various studies.
He also testified that the pressure-demand system is not used by any fire department in the country.
Dr. Irwin was also familiar with the pressure-demand system. He agreed that, of two identical firemen confronted with a toxic atmosphere, the one using the pressure-demand system would be less likely to have inboard leakage than the one using the demand system. However, he also testified to serious disadvantages. Because of the outboard leakage of air when the seal is imperfect, the air supply carried by the fireman will last for a shorter period.
This could both reduce a firefighter's effectiveness by reducing the time he can fight the fire without leaving to replenish his air supply, and also endanger a fireman who is trapped inside a burning area and needs as much time as possible to increase his chance of escape. Dr. Irwin also pointed out that with the pressure-demand system, the air supply must be shut off during any period of nonuse, since otherwise air will escape rapidly whenever the mask is removed. On the other hand, the demand type self-contained breathing apparatus does not release air when the mask is removed. This disadvantage to the pressure-demand system is exacerbated by the quite common necessity on the fireground to readjust the Scott Air Pak face mask either partially or completely.
Dr. Irwin testified that the loss of air when the mask is removed would occur only when the fireman forgot to shut off a valve, although firemen would be trained to close the valve, and that the mask generally would be removed only away from the fire scene. Dr. Utech agreed that firemen should be trained to use the equipment properly and opined that open mask leakage presented no real risk because a fireman will only remove his face mask when he is away from the fire scene. Dr. Utech further stated that if the face piece became dislodged in the presence of toxic gases, the fireman with the pressure-demand system would be safer than an identical fireman with the demand system. The cost of converting a Scott Air Pak demand system to the pressure-demand system would be about $65 per unit, plus a few minutes' unskilled labor. The Department currently has approximately 485 Scott Air Paks, all on the demand system. We credit Dr. Irwin's testimony with respect to the disadvantages of the pressure demand system.
3. Use of a Wig as an Alternative
Both Michini and Barbera had attempted at times to cover long hair on the job by wearing wigs. During the trial they advanced the contention that the wearing of a wig would obviate any safety problems caused by long hair. To the contrary, we find that wigs create more safety problems than they alleviate. In order to take the Scott Pak mask off while wearing a wig, Barbera had to hold the wig in place with one hand resulting in a two-handed rather than what is normally a one-handed operation. In addition, Barbera could only remove the mask from the back rather than in the proper fashion of pulling the mask up and back from the front. When he attempted to remove the mask in proper fashion, he also pulled off the wig and dislodged the hair net. The mask is difficult to remove from the back while wearing gloves, which are required at all times on the fireground. The process for putting on a wig is complex and time consuming. It includes pinning up the hair, affixing and pinning a tight hair net, and donning a tight-fitting wig over the hair and net. Michini testified that physical activity could dislodge the wig and cause hair to protrude without his knowledge. If the net is not properly fitted or stretches with age or the wig is old and becomes loose, the wig will not hold tightly to the head. If the hair, the net, and the wig are not all properly fixed and secured, the wearing of the face piece or helmet is affected. Avoidable adjustments to a Scott Pak mask may result in the loss of critical time. Michini testified to one incident where his wig caused difficulty with his Scott Pak resulting in interruption of his fire-fighting duties. He was carrying a woman out of a burning dwelling and paused to remove his Scott Pak mask, which took the wig with it. He then had to have another fireman remove the woman from the building while he replaced the wig. Thus we find the wig to be an unsatisfactory alternative to Directive 13.
4. Burning of Long Hair on the Fireground
The facts found so far were not greatly in dispute. A real factual controversy is presented, however, by whether a fireman's long hair, even if it does not interfere with his Scott Pak, might present a burn hazard or a danger of being snagged. The plaintiffs suggested that any hazard would be obviated by wearing the helmet liner ear flaps down and the coat collar up, which would cover the hair. However, during the physical activity of firefighting, a coat collar could become turned down or a helmet knocked off. There was also evidence that, in warm weather, the firemen do not always wear their ear flaps down and coat collars up. Moreover, plaintiff Barbera demonstrated the wearing of collar up and helmet flaps down, and his hair protruded to both sides at the back of his head. We find that the helmet flaps and coat collar do not obviate the danger of hair by covering it at all times.
The defendants put on evidence from Commissioner Rizzo and Capt. Kenny, the Department's safety officer, and Dr. Irwin, that long hair exposed on the back of the neck is a safety hazard because hair burns. Commissioner Rizzo's opinion was based on his observations in 26 years of firefighting. Captain Kenney had found that hair clippings burned when he ignited them in a test at Department headquarters. Dr. Irwin also testified that if the exposed portion of the hair ignited it could burn up under the helmet. Dr. Utech and Dr. Irwin agreed that hair has essentially the same flammability characteristics as wool, which is relatively non-flammable but nevertheless does burn to a certain extent. Both Dr. Irwin and Commissioner Rizzo also testified, and we find, that hair burns more rapidly when it or the ambient air is hot. Dr. Utech testified that in an emergency situation a fireman's hair "may very well catch fire and burn away," although he also felt that in such a situation the fireman would be burned whether or not he had hair. Dr. Utech also testified that wool, which Dr. Irwin said "is" hair, is more flammable when fluffed up. There was no evidence of any tests or actual experiences tending to show that long hair is a fire hazard to firemen.
However, an actual courtroom demonstration by Michini as part of his answer to a question shed some light on the matter.
On the first day of trial Michini was probed on cross-examination as to whether hair burns, and he repeatedly replied that it singes when exposed to flame, but does not continue to burn when the source of flame is removed. To illustrate his point he struck a match and briefly held it to his hair. Unbeknownst to Michini, his hair ignited and burned brightly for several seconds. Five fire officers in the courtroom, reacting reflexively to the call of duty, jumped to their feet and shouted at him to extinguish the flame, whereupon he reached up with his hand and did so. He quickly volunteered that his hair spray, not his hair, was the cause of the fire. Hair spray is commonly used by males these days, and the speed with which hair burns is accelerated if it is coated or impregnated with flammable substances such as hair spray. Viewing the testimony on the subject as a whole, we are persuaded that hair exposed at the back of the neck constitutes a hazard on the firegrounds.
Turning to the question of alternatives, we note that, unlike the situation with respect to the use of the Scott Pak, there are some viable alternatives to the proscription of long hair at the back of the neck which could alleviate to a considerable extent the hazard of burning. These would include a ban on the use of hair spray by firemen and better training or other measures to insure that extra long hair is tucked in and that the men always wear their ear flaps down and collars up. However, we also note that these alternatives would not admit of easy enforcement and that, unlike the situation in Stull, what is at stake is not the safety of the individual seeking to wear long hair alone, but also the safety of others.
The parties have raised a number of legal issues which require discussion. They have also extended their briefs by discussing a number of legal issues which require only passing mention, and we will address these first. The defendants have raised questions of the jurisdiction of the Court, the plaintiffs' standing to sue, and their alleged failure to exhaust administrative remedies. These contentions represent an attempt to relitigate settled propositions of law. We find them to be without merit.
The defendants have also argued that plaintiffs have no constitutional right to control their appearance. To so hold would require us to overturn Stull, which we of course cannot do.
The plaintiffs contend that the First Amendment is involved in this case. In our findings of fact we noted that we were not persuaded by that portion of the testimony of Firemen Michini and Barbera which purported to equate their desire for a certain hair style with speech. Plaintiffs have contended in their brief that the plaintiffs' claim is a First Amendment claim as a matter of law. We disagree. The plaintiffs have, quite correctly, argued that symbolic as well as pure speech is afforded protection by the First Amendment. See Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 21 L. Ed. 2d 731, 89 S. Ct. 733 (1969). In Massie v. Henry, 455 F.2d 779 (4th Cir. 1972), the court, in a decision similar to Stull, recognized that hair might be communicative and thus entitled to First Amendment protection:
Perhaps the length of one's hair may be symbolic speech which under some circumstances may be entitled to the protection of the First Amendment.
And in Braxton v. Board of Public Instruction of Duval Co., Fla., 303 F. Supp. 958 (M.D. Fla. 1967), the court held that a man who wears his beard "as an appropriate expression of his heritage, culture and racial pride as a black man" is entitled to First Amendment protection. However, the Massie court noted that the record did not establish that the plaintiff (a schoolboy) selected the length of his hair for any reason other than personal preference. That is what we have found here -- two men who are concerned about their personal appearance: Michini wants to fit in with his peers and Barbera wants to be fashionable. Of course, we find this understandable, but still this gains them no First Amendment protection for their hair in addition to the Stull protection.
There is no kinship whatever between the claims of firemen Michini and Barbera and the high school students in Tinker who wore black arm bands to publicize their objections to the war in Vietnam or in Braxton, who was asserting racial pride. While the Third Circuit has not yet addressed the question, the weight of authority is to the effect that the right to self-selection of hairstyle is not grounded in the First Amendment. See, e.g., Richards v. Thurston, 424 F.2d 1281, 1283 (1st Cir. 1970); Karr v. Schmidt, 460 F.2d 609, 613-14 (5th Cir.) (en banc), cert. denied, 409 U.S. 989, 34 L. Ed. 2d 256, 93 S. Ct. 307 (1972); Jackson v. Dorrier, 424 F.2d 213, 217 (6th Cir.), cert. denied, 400 U.S. 850, 27 L. Ed. 2d 88, 91 S. Ct. 55 (1970); Gfell v. Rickelman, 441 F.2d 444 (6th Cir. 1971); King v. Saddleback Junior College, 445 F.2d 932, 937 (9th Cir. 1971); Freeman v. Flake, 448 F.2d 258, 260-61 (10th Cir. 1971), cert. denied, 405 U.S. 1032, 31 L. Ed. 2d 489, 92 S. Ct. 1292 (1972); and Fagan v. National Cash Register Co., 157 U.S. App. D.C. 15, 481 F.2d 1115, 1117-19 (D.C. Cir. 1973). Several of these cases denied the First Amendment claim on the basis of a failure of the plaintiffs' proof of the symbolic significance of their long hair, rather than holding that as a matter of law hair can never have First Amendment protection. That is the conclusion we reach too. We need not decide whether long hair ever has First Amendment protection; we hold that on this record the plaintiffs' long hair does not.
Finally, we need not be detained by the dispute between the parties as to whether the right of plaintiffs to wear their hair as they choose is a so-called "fundamental right" which can be overridden only by a "compelling governmental interest,"
or whether it is a nonfundamental right which must defer to any regulation bearing a rational relationship to a legitimate governmental purpose.
For the plaintiffs have conceded that "safety, if proven, is a compelling governmental interest which would override plaintiffs' rights if Directive 13 does, indeed promote safety" (Plaintiffs' Brief at 2), and it is the safety justification alone upon which we uphold the regulation. The limited focus of the opinion also obviates the need for discussing a number of the issues which the parties have addressed at length in their briefs, particularly the viability of the defendants' claim that the regulation can be justified on the basis of: (1) the need for discipline in a paramilitary setting, and (2) the need to present a well-groomed and uniform appearance or image to the public.
We turn then to a discussion of the remaining issues: (1) whether Directive 13 is unconstitutionally vague; (2) whether the defendants have established that Directive 13 is justified by consideration of safety; and (3) whether the defendants are barred from seeking to justify the Directive by the judgment in Black v. Rizzo, note 5, supra.
B. Is Directive 13 Void for Vagueness?
There is no dispute about the proposition that a statute which regulates human conduct is unconstitutional if it "either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application." Connally v. General Construction Co., 269 U.S. 385, 391, 70 L. Ed. 322, 46 S. Ct. 126 (1926); Cameron v. Johnson, 390 U.S. 611, 616, 20 L. Ed. 2d 182, 88 S. Ct. 1335 (1968); Zwickler v. Koota, 389 U.S. 241, 247, 19 L. Ed. 2d 444, 88 S. Ct. 391 (1967); Lanzetta v. New Jersey, 306 U.S. 451, 453, 83 L. Ed. 888, 59 S. Ct. 618 (1939).
The rationale for this rule was explained by Justice Frankfurter:
Fundamental fairness of course requires that people be given notice of what to avoid. If the purpose of a statute is undisclosed, if the legislature's will has not been revealed, it offends reason that punishment should be meted out for conduct which at the time of its commission was not forbidden to the understanding of those who wished to observe the law. The requirement of fair notice that there is a boundary of prohibited conduct not to be overstepped is included in the conception of "due process of law". Winters v. New York, 333 U.S. 507, 523, 92 L. Ed. 840, 68 S. Ct. 665 (1948) (dissenting opinion).
A helpful recent exposition of the vagueness doctrine is found in Grayned v. City of Rockford, 408 U.S. 104, 108-09, 33 L. Ed. 2d 222, 92 S. Ct. 2294 (1972):
It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined. Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application. Third, but related, where a vague statute " abuts upon sensitive areas of basic First Amendment freedoms," it "operates to inhibit the exercise of [those] freedoms." Uncertain meanings inevitably lead citizens to " 'steer far wider of the unlawful zone ' . . . than if the boundaries of the forbidden areas were clearly marked."