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Quinlan Legal Update: Dress code policy, officer's free speech rights and use of force rulings

Dress Code Policies and the Police Department

When a police officer is disciplined for violating a department dress code or “anti-adornment” policy, he or she often responds by filing an action alleging that the disciplinary action was taken in retaliation for the officer’s exercise of First Amendment rights. In most cases, these claims are unsuccessful because courts uniformly recognize that law enforcement agencies have a legitimate interest in promulgating and enforcing a strict dress code.

Most recently, a Massachusetts court upheld a policy prohibiting correctional officers from wearing pins or buttons on their uniforms, but ruled that the application of the anti-adornment policy as applied to union buttons had to be submitted to collective bargaining. Although the court did not address the constitutional implications of the officer’s arguments, it upheld the right of management to enforce anti-adornment policies.

When fashioning a dress code or anti-adornment policy, adherence to a few basic principles will minimize your exposure to First Amendment retaliation claims.

  • Ensure that the policy promotes the function of the department and is reasonably related to a legitimate purpose, such as: the encouragement of esprit de corps; the projection of a neutral, unified authority; the fostering of discipline; and the enhancement of the public’s ability to identify officers.
  • Make the policy equally applicable to both sexes.
  • Meet religion-based challenges to anti-adornment policies with an offer of alternatives to displaying the symbol on a uniform.
  • In many jurisdictions, nonunion pins can be prohibited, and enforcement is enhanced if a no-pins policy is enforced across the board.
  • Clearly distinguish between permissible adornments that further the mission of the department -- such as DARE program, red ribbons or black bands on badges in honor of slain officers -- and those which represent individual or personal beliefs.
  • Submit an issue of banning of union pins when it arises to collective bargaining.

Officer Asks U.S. Supreme Court to Hear Free Speech Complaints

After two courts affirmed a police department's demotion of one of its officers, that officer is asking the United States Supreme Court to review his case and to rule that his First Amendment free speech rights were violated when the department retaliated against him for disagreeing with the chief of police at a fellow officer's disciplinary hearing.

Carl Edward Kirby was a North Carolina police officer with the rank of sergeant when he testified at another officer's disciplinary hearing in 2001. In that hearing, Sgt. James Henning had been accused by then police chief Trevor Hampton of misusing his patrol car when he damaged it while driving; however, Kirby contradicted Hampton's conclusion when he stated that Henning's cruiser had a history of mechanical problems, thereby creating the inference that those mechanical problems were the cause of the disputed damage.

Ultimately, the city's Personnel Appeals Committee determined that Henning was not guilty of misusing his police car, and following this ruling Hampton reprimanded Kirby for "a failure to support the (police) department's administration" at the hearing. Kirby countered with a grievance, and the department responded by demoting Kirby to the status of patrol officer.

Kirby was reinstated to his position as sergeant six months later, but he continued to fight the punishment, arguing that the department's discipline violated his First Amendment free speech rights. Two federal courts have already ruled against Kirby, concluding that the speech that prompted his demotion was not protected by the First Amendment. Now, the Supreme Court is his last shot.

Source: The Tuscaloosa News

East Windsor Officer Arrested by Yale Police

After allegations of an armed kidnapping and subsequent sexual assault, Yale University police officers tracked down and arrested the prime suspect, only to discover that he was a local police officer.

Though a spokesman for the Yale University Police Department refused to provide further details regarding the suspected crimes, he did confirm that Rafael Crespo Junior, a 29-year-old police officer in East Windsor, Conn., was arrested and charged with two counts each of first-degree kidnapping with a firearm and first-degree sexual assault, as well as one count each of third-degree assault, second-degree unlawful restraint, and second-degree threatening.

Crespo was recently released on $150,000 bond, and his department has placed him on paid suspension while the case is pending.

Source: WTNH.com

San Bernardino Prosecutor Clears Officer in Shooting of Suicidal Man

After being repeatedly pursued by a knife-wielding man who later claimed to be suicidal, a San Bernardino, Calif., police officer stopped him with multiple gunshots. Taking into account the imminent risk of danger the officer was facing, the San Bernardino County district attorney recently ruled that the officer's actions did not constitute excessive force.

Officer Robert Young was called to an intersection in San Bernardino after receiving reports that a suicidal man was cutting himself with a knife. When the officer arrived at the intersection, he parked behind Michael Stoeckel's stopped vehicle, and Stoeckel immediately exited his car and started walking toward the officer. Young, who could see self-inflicted knife wounds on Stoeckel's neck, began to fear for his own life when Stoeckel lunged toward him with the knife; however, instead of drawing his weapon at that time, Young retreated behind the cruiser in the hopes that backup would arrive in time to help subdue Stoeckel.

Unfortunately, Stoeckel continued to pursue Young, and eventually Young shot four rounds at Stoeckel, effectively ending the attack. After an investigation into the incident, the prosecutor concluded that Young was faced with the imminent threat of serious bodily injury or death, so he was justified in using deadly force to defend himself. This conclusion was supported by Stoeckel's subsequent confession that he was trying to die and wanted the officer to kill him.

Source: The Press-Enterprise

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