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MARSHALL v. DISTRICT OF COLUMBIA

April 11, 1975

MELVIN A. MARSHALL, Plaintiff,
v.
DISTRICT OF COLUMBIA et al., Defendants


Charles R. Richey, District Judge.


The opinion of the court was delivered by: RICHEY

CHARLES R. RICHEY

 This claim is now before the Court on cross-motions for summary judgment on paragraphs seven and eight of the plaintiff's second amended complaint. The plaintiff was hired by the Metropolitan Police Department of the District of Columbia on September 30, 1974, and was assigned to work as an undercover officer. On December 9, 1974, the plaintiff was transferred to the Police Academy, and was told he would have to cut his hair and beard to conform to the personal appearance and grooming requirements of Metropolitan Police Department General Order 1102.3. *fn1" The plaintiff informed the Police Department that he had taken a religious vow not to cut his hair or beard, and requested a waiver of the General Order. Although his request was not formally denied, the plaintiff was suspended on December 11, 1974. Thereafter, by letter dated January 23, 1975, he was officially terminated for failure to comply with General Order 1102.3. The letter also informed the plaintiff that no appeal from the dismissal was available.

 The plaintiff now seeks to be reinstated on the Police Force, with back pay and tenure rights, without being forced to cut his hair or beard. He grounds his claim on three theories, and seeks a declaratory judgment as to each. First, he contends that his dismissal was violative of his First Amendment right to freely exercise his religion. Second, he argues that the General Order violates his rights to due process and equal protection. Third, he argues that the Order is illegal under the D.C. Human Rights Law and D.C. Code ยง 4-130. This Court's jurisdiction is based upon 28 U.S.C. 1331(a).

 I. GENERAL ORDER 1102.3 DOES NOT VIOLATE THE PLAINTIFF'S RIGHTS UNDER THE FREE EXERCISE CLAUSE OF THE FIRST AMENDMENT.

 The First Amendment issue raised by the plaintiff is a question of first impression in this Court. There does not appear to be a firm test uniformly applied in determining whether a statute or regulation is violative of the Free Exercise Clause. *fn2" While one test has been whether the statute is necessary to promote a compelling state interest, Sherbert v. Verner, 374 U.S. 398, 403, 10 L. Ed. 2d 965, 83 S. Ct. 1790 (1963), this Court finds most appropriate the test enunciated in Wisconsin v. Yoder, 406 U.S. 205, 32 L. Ed. 2d 15, 92 S. Ct. 1526 (1972); that is, whether the government interest to be furthered is "of sufficient magnitude to override the interest claiming protection under the Free Exercise Clause." 406 U.S. at 214.

 General Order 1102.3 was issued on December 8, 1974 in response to citizen complaints about the appearance of police officers and because there was a "consensus" among police officials that relaxed grooming standards had resulted in the deterioration of the appearance of officers. (Affidavit of Maurice Cullinane, pp. 1-2, hereinafter "Affidavit"). In his affidavit, Maurice Cullinane, then Assistant Chief of Police for Field Operations and chairman of a committee charged by the Chief of Police with reviewing the department's appearance regulations, stated that, in his professional opinion, appearance standards are "essential to the effective functioning of the department." (Affidavit, p. 4). He further explained the need for the regulations:

 
"One of the responsibilities of the force is to act as a deterrent to crime and as a visible symbol of lawful authority. In order to fulfill this responsibility, it is necessary that uniformed officers on the street be highly visible and quickly recognizable as police officers. For this reason, it is necessary for officers to have a distinctive and uniform appearance. . . .
 
While the wearing of a uniform goes far towards creating a uniform appearance, grooming was also a factor considered by the committee in drafting the order."

 (Affidavit, pp. 4-5). Easy identification of individuals as police officers is deemed by the Police Department to be necessary to ensure that citizens are aware of police presence, that orders of police officers will be obeyed, and to encourage citizens to come to the aid of a police officer in distress. Chief Cullinane further stated that the hair length and beard provisions of the order are designed to promote the projection by officers of a

 
"neutral image that would not provoke a strong negative reaction from any segment of the community, as well as an image that was sufficiently compatible with the traditional look of the uniformed officer so as not to raise questions in the minds of citizens as to whether a uniformed officer was really a police officer, in spite of his uniform."

 (Affidavit, p. 6).

 It appears to the Court that the provisions of General Order 1102.3 further a substantial governmental interest, namely, the projection of an image which facilitates the effective functioning of the police department necessary to ensure the safety and security of our citizens. *fn3"

 The Court is faced, however, with deciding whether the interest described in the preceding paragraph is "of sufficient magnitude to override" ...


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