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Gasparinetti v. Kerr

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT


argued as amended november 21 1977.: September 6, 1977.

RONALD GASPARINETTI AND POLICEMEN'S BENEVOLENT ASSOCIATION, LOCAL NO. 3, APPELLANTS IN NO. 76-1605
v.
EDWARD KERR, POLICE DIRECTOR, CITY OF NEWARK (ON LEAVE) AND ANTHONY BARRES, ACTING POLICE DIRECTOR, CITY OF NEWARK; EDWARD KERR, POLICE DIRECTOR, CITY OF NEWARK (ON LEAVE) AND ANTHONY BARRES, ACTING POLICE DIRECTOR, CITY OF NEWARK AND THE CITY OF NEWARK, APPELLANTS IN NO. 76-1606 (D.C. CIVIL NO. 74-595)

Appeal from the United States District Court for the District of New Jersey.

Aldisert, Rosenn and Garth, Circuit Judges. Rosenn, Circuit Judge, concurring in part and dissenting in part.

Author: Garth

Opinion OF THE COURT

GARTH, Circuit Judge.

I.

On this appeal*fn1 (and cross-appeal*fn2 ), we are presented with a challenge to five different regulations of the Newark, New Jersey, Police Department. The district court determined that two of the regulations*fn3 were unconstitutional, and enjoined their enforcement. The remaining three regulations*fn4 were held to be constitutional.*fn5 Plaintiffs had attacked the regulations as facially overbroad and vague, and as violative of their first amendment rights (made applicable to the states by the fourteenth amendment), as applied to them. Because we do not entirely agree with the district court's disposition, we affirm in part and reverse in part.

II.

This dispute arose out of a low income housing (Kawaida Towers) controversy*fn6 in Newark. The Tactical Force of the Patrol Division of the Newark Police Department, commanded by Inspector Thomas Critchley, was assigned to keep order at the building site. After the Kawaida dispute had largely run its course, Deputy Chief Thomas Henry, head of the Patrol Division, transferred six members of the Tactical Force to a less prestigious unit.

Plaintiff Ronald Gasparinetti is a police officer with the Newark Police Department. At the time of the incident described above, he was President of the Policemen's Benevolent Association (PBA),*fn7 the collective bargaining agent for the rank and file police officers. After Deputy Chief Henry transferred the six officers, Gasparinetti made several statements in the local press (Appendix at 1A, 3A), in the PBA Newsletter (Appendix at 3A), and in a PBA Union Notice (Appendix at 2A). It is these statements on which this case centers.

Gasparinetti*fn8 charged that the six officers had been transferred because of pressure on Inspector Critchley by one Leroi Jones (Imamu Amiri Baraka), a black activist leader of the pro-Kawaida forces. Gasparinetti criticized Critchley for succumbing to political pressure and threats, and for operating outside the Department rules and regulations. He stated that Critchley and Henry were out to "break the morale and spirit of the men," and had practiced "deceit and lies" in order to circumvent the collective bargaining agreement. He further asserted that there were "cowards in the superior officers ranks," and that the men hesitated to face criminals when led by leaders like Critchley.

Subsequent to these statements, Inspector George Graf ordered Gasparinetti to make an "Administrative Submission" and an "Administrative Report," in which he was to answer seven questions regarding the "Critchley incident." In response, Gasparinetti sent Graf two letters in which he claimed that he understood the "order" to be merely a request for cooperation, and that in any event his actions were taken in his capacity as union leader, and therefore not subject to investigation by the Department. Approximately five months later, on September 13, 1973, Gasparinetti was formally charged with violations of departmental regulations ch. 3:1.2-5 (Derogatory Reference),*fn9 ch. 3:1.2-8 (Censuring Official Transactions),*fn10 ch. 6:7 (Public Disparagement),*fn11 ch. 5:4.1 (Obedience to Orders),*fn12 and ch. 6:8 (Acts of Insubordination).*fn13

Gasparinetti then filed a complaint, subsequently amended to include the PBA as a plaintiff, against the Newark Police Director, asserting claims under 42 U.S.C. ยงยง 1983 and 1985, and sought damages and declaratory and injunctive relief. Subsequently he moved for a preliminary injunction. The district court entered its order and opinion on March 2, 1976. The court enjoined the enforcement of chs. 3:1.2-5 and 3:1.2-8, but refused to enjoin the enforcement of chs. 5:4.1, 6:7, and 6:8. (See note 5 supra.) It stayed pending appeal the enforcement of the latter three sections. This appeal and cross-appeal followed.

III.

CHAPTERS 3:1.2-5 AND 3:1.2-8

The district court held that the regulations ch. 3:1.2-5 (Derogatory Reference) and ch. 3:1.2-8 (Censuring Official Transactions) were facially overbroad, resulted in a chilling of first amendment rights, and therefore were invalid under the fourteenth amendment. These regulations provide:

Chapter 3:1.2-5 DEROGATORY REFERENCE -

Police Officers and civilian employees shall not by manner, gesture, or speech criticize or make derogatory reference to Department orders or instructions either to the public or to the members of the Department.

Chapter 3:1.2-8 CENSURING OFFICIAL TRANSACTION -

Unless in accord with official duties, police officers and civilian employees shall not, either in writing or discussion, censure other Department members concerning official transactions within the Department.

For substantially the same reasons as are expressed in the district court's opinion (Appendix at 38A), we agree with the district court that these two regulations are unconstitutional, and their enforcement must be permanently enjoined.

IV.

CHAPTER 6:7

The district court also held that regulation ch. 6:7 (Public Disparagement) was not unconstitutionally overbroad and vague.*fn14 That section reads:

Chapter 6:7 PUBLIC DISPARAGEMENT -

Department members shall not publicly disparage or comment unfavorably or disrespectfully on the official action of a superior officer, nor on the Rules, Regulations, Procedures or Orders of the Police Department.

The district court was of the opinion that ch. 6:7 did not sweep "too broadly in effectuating the legitimate scope of governmental activity," viz. the maintenance of public confidence in the police department, since the regulations were directed only at a policeman's public speech. See District Court Opinion at 15, Appendix at 54A. We disagree.

A.

"A clear and precise enactment may nevertheless be 'overbroad' if in its reach it prohibits constitutionally protected conduct." Grayned v. City of Rockford, 408 U.S. 104, 114, 33 L. Ed. 2d 222, 92 S. Ct. 2294 (1972). "Because First Amendment freedoms need breathing space to survive, government may regulate in the area only with narrow specificity." NAACP v. Button, 371 U.S. 415, 432-33, 9 L. Ed. 2d 405, 83 S. Ct. 328 (1963). Since there is a great danger that the exercise of first amendment rights will be chilled by penalties on speech, see Keyishian v. Board of Regents, 385 U.S. 589, 603, 17 L. Ed. 2d 629, 87 S. Ct. 675 (1967), the regulation must be in "terms susceptible of objective measurement," Cramp v. Board of Public Instruction, 368 U.S. 278, 286, 7 L. Ed. 2d 285, 82 S. Ct. 275 (1961). When faced with an overbreadth challenge a court must decide, first, if there is a legitimate and substantial state interest in regulating a class of speech, and, if so, whether that interest is being "pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved." Shelton v. Tucker, 364 U.S. 479, 488, 5 L. Ed. 2d 231, 81 S. Ct. 247 (1960). See Grayned v. City of Rockford, supra at 119; see also Keyeshian v. Board of Regents, supra at 601. The enactment regulating speech, therefore, may not be an impermissibly broad prophylactic; nor can it unnecessarily interfere with first amendment rights. See Grayned v. City of Rockford, supra at 119. The crucial question, then, is whether the regulation sweeps within its prohibitions that which is protected under the first and fourteenth amendments. See id. at 115.

The regulation at issue in this case is directed at comments by police officers. In Pickering v. Board of Education, 391 U.S. 563, 20 L. Ed. 2d 811, 88 S. Ct. 1731 (1968), the Supreme Court recognized that the State has a greater interest in regulating the speech of public employees than in regulating the speech of citizens in general.*fn15 Id. at 568. In certain situations, a public employee may be discharged on the basis of speech, "without offending [the] guarantees of the First Amendment." Arnett v. Kennedy, 416 U.S. 134, 160, 40 L. Ed. 2d 15, 94 S. Ct. 1633 (1974). See Sprague v. Fitzpatrick, 546 F.2d 560 (3d Cir. 1976). The area of unregulable speech available to public employees is accordingly narrower than that available to the public at large. In our determination of the overbreadth vel non of ch. 6:7, therefore, we must consider that the first amendment protections afforded to police officers, at least as those protections apply to regulations directed to speech made in their capacity as police officers (not to mention their capacity as PBA officials), are somewhat more circumscribed than those afforded to members of the public.*fn16 It is necessary that the regulation be narrowly tailored to effectuate the Department's legitimate interests, while not unduly encroaching upon the first amendment rights of those it regulates.

In this case we can recognize a significant government interest in regulating some speech of police officers in order to promote efficiency, foster loyalty and obedience to superior officers, maintain morale, and instill public confidence in the law enforcement institution. To achieve these ends, regulations may be promulgated, but their restrictive effect may extend only as far as is necessary to accomplish a legitimate governmental interest. As the Supreme Court said in a related context, "policemen, like teachers and lawyers, are not relegated to a watered-down version of constitutional rights." Garrity v. New Jersey, 385 U.S. 493, 500, 17 L. Ed. 2d 562, 87 S. Ct. 616 (1967).*fn16a

B.

The disputed "Public Disparagement" (ch. 6:7) regulation provides that a Department member shall not "publicly disparage or comment unfavorably or disrespectfully" on the official actions of superior officers or on the orders of the Department. It is the regulation's prohibition against unfavorable comment which we find to be the most troublesome, as it appears to sweep within its ambit, speech which is clearly protected under the first amendment.

For example, does criticism of the Department's work rules, voiced by a police officer at a public PBA meeting, constitute "unfavorable comment" which could lead to the imposition of sanctions? Has a policeman "comment[ed] unfavorably" when he, in a public setting, claims that a new departmental policy, which requires that patrol cars be manned by but one officer, is not in the public interest? Or is a member of the Department, who is also a PBA representative engaged in contract negotiations with the City, guilty of "unfavorable comment" within the meaning of ch. 6:7 if he charges that the Police Director is not negotiating in good faith? It seems to us that in all these situations ch. 6:7 would be violated, and that consequently any publicly voiced disagreement with Department policy would violate ch. 6:7. Yet the first amendment surely protects such expressions of opinion about matters of public concern. See Pickering v. Board of Education, supra.

Counsel for the City argued before us that the examples of protected speech cited in the preceding paragraphs would not be violations of ch. 6:7. This, however, is not clear to us. Certainly the regulation, on its face, by proscribing unfavorable comment without qualification, would appear to prohibit such statements. Moreover, unlike cases such as Arnett v. Kennedy, supra; Levy v. Parker, 417 U.S. 733, 41 L. Ed. 2d 439, 94 S. Ct. 2547 (1974); and C.S.C. v. Letter Carriers, 413 U.S. 548, 37 L. Ed. 2d 796, 93 S. Ct. 2880 (1973), all of which upheld broadly phrased regulations restricting the speech and conduct of public employees, in the case sub judice there is no interpretive guidance (such as administrative or historic interpretations, and prior decisions) to delimit the scope of the regulation.

The City's counsel contended that a "reasonable man" standard must be read into the regulation, and that a police officer, in the exercise of common sense, would know what speech is protected and what speech violates the rule. While we do not hold that an implicit "reasonable man" interpretation can never save an otherwise overbroad enactment, it seems to us that in this case the term "comment unfavorably" is not a "term susceptible of objective measurement," Cramp v. Board of Public Instruction, supra, at 286, and cannot be so legitimated by construing it in accordance with such a standard. For example, the City's attorney, at oral argument, responded to the Court's questioning on this point by asserting that, in his opinion, if a policeman stated at a public meeting that a particular Department policy was "unwise", he would not violate ch. 6:7. If, however, the officer stated that the policy was "stupid", he would have "comment[ed] unfavorably" within the purview of the rule. We do not think that a police officer should be required to make such a subtle distinction when it involves his first amendment rights. It is precisely this kind of broad, overinclusive restriction on speech which deprives first amendment freedoms of the breathing space those liberties need to survive, NAACP v. Button, supra, at 432-33, since the person regulated can never be certain that he will not be penalized for speech which is indeed protected.*fn16b The avoidance of this chilling effect is at the heart of the overbreadth doctrine, see Keyeshian v. Board of Regents, supra, at 603.

C.

We recognize that the Newark Police Department has important interests in regulating some speech of its members. Ch. 6:7, however, indiscriminately casts its net so as to catch, along with that speech which the Department may properly regulate, much speech in which the Department's legitimate interest is minimal. Given the substantial encroachment on the first amendment-protected areas of police officers' speech, the lack of interpretive guidance in construing the regulation, the failure to differentiate between criticism of immediate superiors, which might result in disruption, and criticism of remote superiors, where disruption is unlikely,*fn17 and the public's strong interest in open debate and access to information about its police,*fn18 we hold that ch. 6:7 is overbroad and therefore invalid on its face.*fn18a

D.

Other courts, when faced with overbreadth challenges to similarly broad police department regulations, have reached the same result.*fn19 In Muller v. Conlisk, 429 F.2d 901 (7th Cir. 1970), the court held overbroad a police department regulation which prohibited "'engaging in any activity, conversation, deliberation, or discussion which is derogatory to the Department or any member or policy of the Department'". Id. at 902. The court concluded that the regulation in effect proscribed all criticism by policemen of the department, id. at 904, and therefore was invalid. Cf. Bence v. Breier, 501 F.2d 1185 (7th Cir. 1974) (holding a police department rule which proscribed "conduct unbecoming" a police officer unconstitutionally vague).

In Flynn v. Giarrusso, 321 F. Supp. 1295 (E.D. La. 1971), the court invalidated as overbroad a police department regulation which provided that a "'member shall not unjustly criticize or ridicule, or express hatred or contempt toward, or indulge in remarks which may be detrimental to . . . any person.'" 321 F. Supp. at 1299. The court in Flynn "fail[ed] to see what possible legitimate interest the . . . Police Department can have to warrant such a sweeping prohibition on the speech of its members." 321 F. Supp. at 1299. Also, see Haurilak v. Kelley, 425 F. Supp. 626 (D. Conn. 1977).

Ch. 6:7 of the Newark Police Department Rules and Regulations is open to the same objections as the regulations in Muller and Flynn.*fn20 As noted earlier, it essentially prohibits all criticism by police officers of the actions and policies of the Newark Police Department. Moreover, the Department has no legitimate interest in so broadly regulating its members' speech. Just as the regulations in Muller and Flynn could not pass constitutional muster for those reasons,*fn21 so ch. 6:7 cannot be sustained here. See NAACP v. Button, 371 U.S. 415, 433, 9 L. Ed. 2d 405, 83 S. Ct. 328 (1963): "The objectionable quality of . . . overbreadth . . . [is] the danger of tolerating, in the area of First Amendment freedoms, the existence of a penal statute susceptible of sweeping and improper application." See also Shelton v. Tucker, 364 U.S. 479, 488, 5 L. Ed. 2d 231, 81 S. Ct. 247 (1960).*fn22

V.

CHS. 5:4.1 AND 6:8

The district court also refused to enjoin the enforcement of chs. 5:4.1 and 6:8 against Gasparinetti. Those regulations provide:

Chapter 5:4.1 OBEDIENCE TO ORDERS -

Police officers or civilian employees shall promptly and fully obey any lawful order directed to them by a superior officer.

Chapter 6:8 ACTS OF INSUBORDINATION -

Department members shall not commit acts of insubordination or disrespect to any superior officer. (As defined in Chapter 2:1.10 of the Rules and Regulations).*fn23

The charges brought against Gasparinetti under ch. 5:4.1 read as follows:

CHARGE IV:

Violation of Newark Police Department Rules and Regulations, Chapter 5:4.1 -

OBEDIENCE TO ORDERS -

Police Officers or civilian employees shall promptly and fully obey any lawful order directed to them by a superior officer.

(TWO COUNTS)

SPECIFICATIONS:

1. On April 12, 1973, in the office of the Internal Affairs Division and in the presence of Lieutenant Robert Gauthier, Police Officer Ronald Gasparinetti did receive a lawful verbal order from Inspector George Graf, a superior officer, directing him to submit an "Administrative Submission" DPI:1001, through channels with his answers to the seven (7) questions asked of him by Inspector Graf, and he did wilfully disobey this order when he failed to comply as directed.

2. On April 23, 1973 in the office of the Internal Affairs Division, and in the presence of Lieutenant William Lissenden, Police Officer Ronald Gasparinetti, did receive a direct lawful verbal order from Inspector George Graf, a superior officer to submit an "Administrative Report," not a letter, through channels, with his answers to the seven (7) questions asked of him by Inspector Graf on April 12, 1973, and he did wilfully disobey this order when he failed to comply as directed.

(Appendix at 6A-7A). The charges filed against Gasparinetti under ch. 6:8 are virtually identical to those filed under ch. 5:4.1. (Appendix at 7A-7B).

Gasparinetti argues that "once it is recognized that the Newark Police Department Rules and Regulations sanctioning police officers' speech are unconstitutional . . . it is clear that the disciplinary charges for alleged violations of the remaining Rules (5:4.1 'Obedience to Orders' and 6:8 'Acts of Insubordination') . . . cannot be sustained. The Police Department had no right to inquire into Gasparinetti's constitutionally protected speech and associational interests. . . . Gasparinetti rightly refused to answer questions relating to such protected areas. . . ." Appellant's Brief at 23. He asserts that the validity of any order must be measured by the validity of the regulation pursuant to which the order is made, and he concludes that, if he cannot be sanctioned for the public statements that he made, then he cannot be sanctioned for failure to supply Administrative Reports or Submissions which relate to those statements.

The Police Department charged Gasparinetti with violating chs. 5:4.1 and 6:8 because he refused to make a formal answer to seven questions put to him by Inspector Graf. Instead he submitted two letters, dated April 16, 1973, and April 23, 1973, in which he claimed that the questions concerned matters of PBA interest and were therefore not subject to Department exploration. (Appendix at 31, 32A).

The district court refused to grant injunctive relief to Gasparinetti with respect to the enforcement of chs. 5:4.1 and 6:8. Its decision, however, was premised on its holding and belief that ch. 6:7 was constitutional. We, on the other hand, have held that ch. 6:7 is overbroad and cannot be constitutionally sustained. Moreover, the seven questions which the Department ordered Gasparinetti to answer do not appear in the record. Hence, we are not in a position to determine whether, in light of the unconstitutionality of ch. 6:7 and the substance of the seven questions, Gasparinetti may be sanctioned for his refusal to answer. That determination should be made by the district court in the first instance.

VI.

Having concluded that the district court did not err in holding chs. 3:1.2-5 and 3:1.2-8 unconstitutional, we will affirm so much of the district court's Order of March 2, 1976, as permanently enjoins their enforcement.

However, contrary to the district court, we have also concluded that ch. 6:7 is overbroad and therefore unconstitutional. Accordingly, so much of the district court's Order of March 2, 1976, as denies plaintiffs an injunction as to the enforcement of ch. 6:7 will be reversed, with the direction that an injunction issue against the enforcement of ch. 6:7.

Inasmuch as we are unable to assess the effect of our holding on the district court's disposition of chs. 5:4.1 and 6:8, we will reverse so much of the district court's Order of March 2, 1976, as pertains to those two chapters, and remand to the district court for further proceedings consistent with this opinion.

Disposition

Affirmed in Part, Reversed in Part, and Remanded.

ROSENN, Circuit Judge, concurring in part and dissenting in part.

I dissent because I believe the judgment and orders of the district court should have been affirmed in toto. The majority affirm the district court in holding that chapters 3:1.2-5 ("DEROGATORY REFERENCE") and 3:1.2-8 ("CENSURING OFFICIAL TRANSACTIONS") are unconstitutionally overbroad on their face, resulting in a chilling of first amendment rights. I agree as to this aspect of the majority's opinion for the reasons stated by them and those expressed by the district court. I disagree with the majority's reversal of the district court's holding that chapter 6:7 ("PUBLIC DISPARAGEMENT") is constitutional and the majority's consequent reversal of the district court's refusal to enjoin disciplinary proceedings against appellant, Ronald Gasparinetti ("Gasparinetti"), brought under chapter 5:4.1 ("OBEDIENCE TO ORDERS") and chapter 6:8 ("ACTS OF INSUBORDINATION").

The majority hold that chapter 6:7 is facially overbroad. I disagree both as to their construction of the rule and to the balance they strike between the individual and governmental interests. I would hold the rule facially valid. I would also reach the question of whether chapter 6:7 is either vague or unconstitutional as applied to Gasparinetti, concluding that neither test renders the rule invalid. Because I believe that chapter 6:7 is constitutional I would affirm the district court's refusal to grant an injunction preventing application of chapters 5:4.1 and 6:8 to Gasparinetti.

I. PUBLIC SPEECH OF POLICEMEN MAY BE LIMITED

The language of the first amendment is seemingly absolute, that no law shall be passed "abridging the freedom of speech." U.S. Const. Amend I. The Supreme Court, however, has never interpreted this clause that strictly; a balance has been struck between the speech interests of individuals and the governmental need for law and order. See Konigsberg v. State Bar, 366 U.S. 36, 49, 6 L. Ed. 2d 105, 81 S. Ct. 997 (1961); Dennis v. United States, 341 U.S. 494, 508, 95 L. Ed. 1137, 71 S. Ct. 857 (1951).

When faced by a challenge to governmental regulation of speech of citizens in general, the Government must present compelling justification for its encroachments, see Brandenburg v. Ohio, 395 U.S. 444, 89 S. Ct. 1827, 23 L. Ed. 2d 430 (1969) (per curiam). The government, however, as employer may exercise some incidental speech control over its employees in furtherance of the goals of their employment. Arnett v. Kennedy, 416 U.S. 134, 40 L. Ed. 2d 15, 94 S. Ct. 1633 (1974); Pickering v. Board of Education, 391 U.S. 563, 20 L. Ed. 2d 811, 88 S. Ct. 1731 (1968).

The government has an interest in regulating the conduct and "the speech of its employees that differ[s] significantly from those it possesses in connection with regulation of the speech of the citizenry in general. The problem in any case is to arrive at a balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the [government], as an employer, in promoting the efficiency of the public services it performs through its employees."

CSC v. National Ass'n of Letter Carriers, 413 U.S. 548, 564, 37 L. Ed. 2d 796, 93 S. Ct. 2880 (1973), quoting, Pickering v. Board of Education, supra, 391 U.S. at 568.

On this basis public employees may be disciplined for their speech without offending rights secured by the first amendment. See Sprague v. Fitzpatrick, 546 F.2d 560, 565 (3d Cir.), affirming, 412 F. Supp. 910, 919 (E.D. Pa. 1976) (Even though employee is punished for speech, interest of government in stable and effective relations between workers is enough to permit the action).

The need of the government to exercise incidental speech regulation over its employees in furtherance of the goals of their employment is especially justified and necessary with the police. Regardless of the historical origin of the municipal police force, whether as a need to supplement the citizens role in keeping the peace or an interest in creating a civilian military, municipal police forces are a para-military force by virtue of their organized structure, central control, disciplined rank and file, and uniform dress and appearance, all designed to carry out the efficient conduct of their duties.

The police generally resemble the military - a closed isolated sector with its own customs and needs, see Bernard, Structures of American Military Justice, 125 U. Pa. L. Rev. 307, 312-33 (1976) - rather than other employees in the public sector. This structure need not necessarily be imposed, but as the Supreme Court indicates in Kelley v. Johnson, 425 U.S. 238, 47 L. Ed. 2d 708, 96 S. Ct. 1440 (1976), the choice of the local government to organize along para-military lines must be respected by the courts in cases in which the content of police regulations is challenged rather than the structure of the force itself. 425 U.S. at 246.

"For the reasons which differentiate military society from civilian society, we think Congress is permitted to legislate both with greater breadth and greater flexibility when prescribing the rules by which the former shall be governed than when prescribing rules for the latter." Parker v. Levy, 417 U.S. 733, 756, 41 L. Ed. 2d 439, 94 S. Ct. 2547 (1974). Similarly, states must be given considerable leeway in legislation regulating the local equivalent of the military, the police. In today's highly complex and mobile society, in which crime is assisted by enormous advances in technology, transportation, and instant communication, the policeman is more than ever a trained officer entrusted with responsible and serious assignments as a public servant.

His work habits on active duty require disciplined conduct, regimentation and frequent strict adherence to regulation and authorized detail. . . . It is essential that a policeman's training be such that he be taught to obey strict discipline, procedure and rules in order to lend practical assurance that he will follow command and not abuse his awesome authority.

Stradley v. Andersen, 478 F.2d 188, 190 (8th Cir. 1973). The state, therefore, has a significant governmental interest, succinctly expressed by the majority, "in regulating some speech of police officers in order to promote efficiency, foster loyalty and obedience to superior officers, maintain morale, and instill public confidence in the law enforcement institution." Majority Opinion at 315.

While it is true that policemen are not relegated to an emasculated version of constitutional rights, Garrity v. New Jersey, 385 U.S. 493, 500, 17 L. Ed. 2d 562, 87 S. Ct. 616 (1967), it is equally clear that in certain contexts involving the need for police discipline and espirit de corps, the government is entitled to regulate police activity to a much greater extent than "civilians." See, e.g., Kelley v. Johnson, supra, (assuming first amendment right in personal appearance, Court holds that state need only show rational need for regulation, unlike compelling need for civilians). Accepting the principle that a police officer is entitled to first amendment protection, it may well be that he is entitled to less than other public servants. See Muller v. Conlisk, 429 F.2d 901, 904 (7th Cir. 1970).

II. THE "PUBLIC DISPARAGEMENT" RULE IS NOT OVERBROAD ON ITS FACE

In assessing claims of overbreadth, this court must first determine the extent of the challenged rule and then balance the governmental need to regulate the speech against the individual's rights. Before considering that balance in this case, the scope of the challenged rule must be established.

The test for constitutionality of a state rule challenged on first amendment grounds is whether the interest of the state in limiting the speech outweighs the interest asserted by the individual. Preliminary to that balancing, however, the court must construe the language of the rule to determine what conduct is proscribed. The majority pose a number of hypotheticals here that they claim come within the ambit of the "public disparagement" rule, including:

(1) criticism of department work rules, voiced at a public PBA meeting; (2) claims that a new departmental policy is against the public interest, stated in a public setting; and (3) charges that a Police Director is not negotiating a contract in good faith - presumably made in a public setting, but not so posed by the majority. Majority Opinion at 315. Although each of these hypotheticals might well be within the literal language "comment unfavorably" when the phrase is taken out of context, fairly read, the overall effect of the rule would not be so inclusive.

The Supreme Court in CSC v. National Ass'n of Letter Carriers, supra, 413 U.S. at 571, reminds us that "our task is not to destroy [challenged regulations] if we can, but to construe [them] . . . so as to comport with constitutional limitations." Our duty then is to give narrow effect to rules of police conduct so as to limit their possible overbreadth. The majority has indicated that the language "publicly . . . comment unfavorably" is that which may be unconstitutionally applied. Their construction of that language flies in the face of the Court's admonition in CSC v. National Ass'n of Letter Carriers and is unnecessarily broad. The rule must be read, not only in light of a reasonable man standard as suggested by the Police Department, but more importantly within the context of the rule itself.*fn1

Chapter 6:7 is not focused primarily at the content of speech as it is on the forum for it. The rule is directed against the use of a public forum for speech coupled with departmental disparagement. The rule then is seen as akin to a time, place, and manner regulations, much like prohibitions against "fighting words." See Chaplinsky v. New Hampshire, 315 U.S. 568, 86 L. Ed. 1031, 62 S. Ct. 766 (1942); Cantwell v. Connecticut, 310 U.S. 296, 84 L. Ed. 1213, 60 S. Ct. 900 (1940). Chapter 6:7 is headed "PUBLIC DISPARAGEMENT." The rule prohibits members from publicly disparaging and publicly commenting unfavorably or disrespectfully on official action of police superiors or departmental rules or orders. Read in context, unfavorable is joined inextricably with disparaging and disrespectful. So read, the rule is intended to limit public unfavorable comment, but unfavorable must be read to imply public disrespect or disparagement. There is little difficulty in concluding that the rule is not aimed at mere unfavorable public comment; its overall purpose and tone indicate a need to show something greater. Therefore, the majority conclusion that " any publicly voiced disagreement" would violate chapter 6:7 is unwarranted.*fn2 Even were we to accept the majority's construction of the rule, the relevant cases require that we sustain the regulation. The majority recognize that there is "a significant government interest in regulating some speech of police officers." Yet, even given this legitimate governmental interest the majority hold that the Department may not enforce chapter 6:7 for sufficient breathing space is not provided for enjoyment of first amendment rights. Majority Opinion [Slip op.] at 316. Had this been a case involving teachers or other public employees, such a conclusion might have been plausible, but because the rule is aimed at police officers it seems to me that the balance required by Pickering would sustain the "public disparagement" rule.

The majority have drawn a bright line between chapter 6:7's prohibition against public disparagement and public disrespect and its prohibition against public unfavorable comment. It seems that the distinction is really trivial, for the three provisions read together attempt to serve an identical purpose, the deterrence of public statements which tend to destroy morale and unity within the ranks of the police force and public confidence in the police department. There is a powerful need within a police department for unity and obedience; there is an equally strong necessity for public confidence. It is of great importance that subordinates show proper respect to superior officers. Without some rules limiting public criticism, morale and public confidence in the police would likely be undermined.*fn3

Chapter 6:7 does not prevent criticism absolutely. A reasonable latitude for criticism is permitted. Police officers are free to criticize among themselves or to level criticism at their superiors. Only criticism which publicly disparages police policy and superiors is restricted. Private channels of communication are left open. The majority ignore this freedom of the police to exercise an extensive range of speech, speech which may be highly critical, derogatory, or inflammatory. Any private communication is permissible; any public communication which is not disparaging is also permissible. The fear of chilling the exercise of free speech expressed by the majority is overdrawn. Even the cases which the majority cite support my view that the line for constitutional purposes is not between commenting and disparaging but is between public and private speech.

Muller v. Conlisk, supra, involved a challenge to a regulation of the Chicago police department which "on its face prohibit[ed] all such speech [disparaging in nature], even private conversation . . . ." 429 F.2d at 904. It was for that reason that the rule was found overbroad. Id. Of like effect is Haurilak v. Kelley, 425 F. Supp. 626 (D. Conn. 1977), in which a police regulation which prohibited department employees under any circumstances from speaking critically or derogatorily "to other members or employees" as well as outsiders was challenged. Id. at 629. The regulation was found unconstitutional because it punished the officers for "discussing among themselves the merits of any order or instruction. . . ." Id. at 632.

Flynn v. Giarrusso, 321 F. Supp. 1295 (E.D. La. 1971), cited by the majority, does not help in their quest to draw the line between public comment and public disparagement. It too involved a regulation prohibiting criticism directed to "any person," public or private. Id. at 1299. However, Magri v. Giarrusso, 379 F. Supp. 353 (E.D. La. 1974), decided by the same district court found facial validity in the following regulation adopted by the police department after the Flynn case which is quite similar to the "public disparagement" rule under attack in the instant case:

CRITICISM

Members and employees shall not publicly criticize or ridicule the department, its policies or other employees by talking, writing or expressing any other manner, where such talking, writing or other expression:

d. tends to impair the operation of the department by interfering with its efficiency; interfering with the ability of supervisors to maintain discipline; or having been made with reckless disregard for truth or falsity.

379 F. Supp. at 357 (emphasis supplied).

The court concluded that the problems expressed with the similar rule declared unconstitutional in Flynn had been cured. Id. at 358 ("Article 33 does not distinguish between public and private speech . . ."). Any distinction between publicly unfavorable comment and "publicly criticize" eludes me. I agree with the Magri court that in this context it is the prohibition of private speech which is constitutionally prohibited, not incidental effects on public speech.*fn4 I see no substance to the distinction which the majority draws between "publicly criticize and ridicule" in the Magri regulation and the "public disparagement" regulation in this case. (Majority Opinion p. 318 n.20).

The "public disparagement" rule does not sweep too broadly in effectuating the governmental interest in the morale and unity of the police force. It does not prevent dissent or criticism. Intra-departmental lines for redress of problems are available. Public criticism of non-police officials and events is not prohibited. The regulation only limits disrespect, disparagement, and unfavorable criticism voiced in a public forum. The fine line the majority attempts to draw in a police organization between unfavorable public comment and disparagement is unsound and untenable.*fn5 The clear line for constitutional challenges, as shown by Muller v. Conlisk, supra; Haurilak v. Kelley, supra; Magri v. Giarrusso, supra ; and Flynn v. Giarrusso, supra, is that drawn between public speech and private speech. Unless the rule is so broad as to prohibit all criticism or a very large portion which would include private communication, rules regulating public speech by police officers are facially valid.

III. CHAPTER 6:7 IS NOT VAGUE NOR UNCONSTITUTIONAL AS APPLIED TO GASPARINETTI

Appellants have challenged chapter 6:7 as unconstitutionally vague and as unconstitutionally applied to Gasparinetti. Judge Lacey held that chapter 6:7 was neither vague nor unconstitutionally applied. I agree.

The language of 6:7, though not totally clear, is "set out in terms that the ordinary person exercising ordinary common sense can sufficiently understand and comply with, without sacrifice to the public interest." CSC v. National Ass'n of Letter Carriers, supra, 413 U.S. at 579. Vagueness may be found when a regulation is so vague that men of ordinary intelligence must guess as to 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). I agree with Judge Lacey that chapter 6:7 is reasonably specific. It is written in terms which are understandable and which provide notice as to what conduct is prohibited; it is not vague. See Arnett v. Kennedy, supra, 416 U.S. at 161.

Gasparinetti was charged with violating chapter 6:7 by publicly disparaging and commenting unfavorably or disrespectfully about the official actions of two superior officers, Deputy Chief Thomas Henry, and Inspector Thomas Critchley, and about the rules, regulations, procedures, and orders of the police department. Specifically, the charges alleged that Gasparinetti said: (1) that police officers were transferred as a result of political pressure brought by a black leader on Critchley; (2) that Critchley attempted to break the morale of the men; (3) that Critchley operated outside the rules and regulations of the department; (4) that men like Critchley could not effectively lead others; and (5) that many superior officers were cowards.*fn6

These remarks, especially the public charge that superior officers were "cowards," were of such character as to undermine public confidence in the leaders of the police force and disturb the working relationship of the rank-in-file to their superiors. As such, these remarks were punishable by the Department. Pickering v. Board of Education, supra suggests that the governmental interest in limiting speech must outweigh the individual's right to fair comment if application of a rule is to be constitutional. I think that there can be no doubt that in this case Gasparinetti's asserted first amendment rights are outweighed by the Department's need for discipline and order. It is permissible to punish truthful criticism where effectiveness of the employment relationship is undermined. See Sprague v. Fitzpatrick, supra, 546 F.2d at 565.

IV. CHAPTERS 5:4.1 AND 6:8 NEED NOT BE ENJOINED

Disciplinary charges were brought against Gasparinetti under chapter 5:4.1 ("OBEDIENCE TO ORDERS") and chapter 6:8 ("ACTS OF INSUBORDINATION")*fn7 because he refused to make a formal answer to seven questions - presumably concerned with his public statements about his superiors and official policy - put to him by a superior officer. Instead, Gasparinetti claimed that the questions asked him to reply to areas not subject to scrutiny by the Department. The district court refused to grant an injunction preventing enforcement of disciplinary proceedings against Gasparinetti. The majority apparently remand the question to the district court in light of their reversal of the constitutionality of chapter 6:7. Because I find chapter 6:7 constitutional, I see no need to disturb the district court's refusal to grant the injunction. I would affirm the holding.

V. CONCLUSION

(1) For the reasons stated by the majority, I concur that chapters 3:1.2-5 and 3:1.2-8 of the Newark Police Department Rules and Regulations are unconstitutionally overbroad.

(2) Chapter 6:7's prohibition of publicly disparaging and publicly commenting unfavorably or disrespectfully is necessary to effectuate the goals of morale, discipline, and public confidence in the Department. The rule is directed at public disparagement; the incidental impact on free speech is mitigated by open access to all private channels of communication. Given the needs of the police, the deference given to regulations of paramilitary organizations, and the limited nature of the intrusion on rights, chapter 6:7 is not overbroad on its face.

(3) The terms of chapter 6:7 are susceptible of understanding by the ordinary man or woman; it is not vague.

(4) Gasparinetti's conduct had the clear effect of undermining morale and discipline on the police force. The Department may therefore discipline him without doing violence to the constitution.

(5) Chapter 6:7 is constitutional in all respects. Therefore, the district court's holding refusing to enjoin application of chapters 5:4.1 and 6:8 to Gasparinetti should be affirmed.


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