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O'DOHERTY v. SENIUK

February 18, 1975

NEAL O'DOHERTY, as President of Correction Officers Benevolent Association, County of Nassau, New York Incorporated and NEAL O'DOHERTY, Individually, Plaintiff,
v.
MICHAEL P. SENIUK, Sheriff, County of Nassau, New York and NASSAU COUNTY SHERIFF'S DEPARTMENT, Defendants



The opinion of the court was delivered by: NEAHER

MEMORANDUM OF DECISION AND ORDER

 NEAHER, District Judge.

 This civil rights action for declaratory and injunctive relief *fn1" seeks to invalidate and enjoin the enforcement of hairgrooming regulations, Sheriff's Order No. 33, of the Sheriff's Department, County of Nassau, New York, dated November 1, 1971, as in violation of plaintiff's constitutional rights. Following the issuance of a temporary restraining order which enjoined the defendants from enforcing the regulations, a consolidated hearing for preliminary and permanent injunctive relief, Rule 65(a)(2), F.R.Civ.P., was held on the merits. The parties consented to continued extension of the restraining order pending this court's decision.

 Final decision of this case was held in abeyance in view of a pending appeal before the Second Circuit in Dwen v. Barry, 71 C 1020 (E.D.N.Y., May 30, 1974) (Mishler, Ch. J.), of an order granting similar relief against a grooming regulation substantially identical to the one in question here. *fn2" On January 9, 1975, the Second Circuit affirmed Chief Judge Mishler's decision in open court, undoubtedly relying on its earlier extended discussion of the case, 483 F.2d 1126 (reversing for trial the denial of a preliminary injunction and summary dismissal of the action). The Court of Appeals there stated what must be regarded as the controlling standard of review for the subsequent trial and this case as well:

 
"We hold only that choice of personal appearance is an ingredient of an individual's personal liberty, and that any restriction on that right must be justified by a legitimate state interest reasonably related to the regulation." Id. at 1130.

 The court also noted that, at trial, the defendants would have "the burden of establishing a genuine public need for the regulation," id. at 1131, and would have to demonstrate "the relationship between [the] regulation and the legitimate interest it sought to promote." Id. Based on those standards, and for the reasons which follow, constituting the findings and conclusions required by Rule 52(a), F.R.Civ.P., this court is satisfied that plaintiff is entitled to the injunctive and declaratory relief requested.

 In their post-trial memorandum, defendants advance three alleged legitimate State interests: (1) the need for discipline in a jail environment; (2) the need to ensure safety in the jail environment; and (3) the need to promote, by conduct and example, the rehabilitation of inmates. These interests, and their relationship to the grooming regulation, are not conceded by plaintiff, but plaintiff has chosen to emphasize instead his belief that the motivations underlying the enforcement of the regulation were improper. Defendants dispute this and the evidence, even assuming its relevance, is by no means clear either way. Accordingly, the findings and conclusions below are based upon the lack of an adequate showing of a reasonable relationship between the regulation and the legitimate State interests relied on. The court expresses no opinion as to the merit of plaintiff's allegations of improper motivation, except to note that they have been neither proved nor disproved.

 1. Jail Discipline

 Relying on Stradley v. Andersen, 478 F.2d 188, 190 (8 Cir. 1973), defendants point to the testimony of defendant Seniuk as demonstrating that because of "the necessary regimentation and its attendant security in a close jail environment . . . there is an even greater need for discipline within the Correction Officer field than within the Police Department field." Defendants' Memorandum of Law at 4.

 This court can find no basis for disagreement with defendants' conclusion that jail discipline is a legitimate State interest that may be advanced. In fact, Dwen v. Barry supports such a view, 483 F.2d at 1129. But that case also makes it quite clear that the mere statement of such an interest is not enough: "extension to the uniformed civilian services of the police and fire departments of the unique judicial deference accorded to the military, however, seems . . . unwarranted." Id. at 1128. The court is satisfied, on the record before it, that the Nassau County Sheriff's Department, whose members' principal role appears to be that of correctional officers at the Nassau County Jail, is not so distinguishable from the civilian police as to be entitled to exemption from the Dwen rule, which requires that defendants establish a relationship between the interest in jail discipline and the grooming regulation.

 Turning to defendants' evidence on that point, its sole witness was the defendant Seniuk. About all he had to say concerning this was that he had "noticed a general letdown and slackness on the part of the Correction Officers" (Tr. 22, June 4, 1974), *fn3" and, concerned about maintaining security, control and safety at the Nassau County Jail, he obstensibly decided to enforce the grooming regulation "technically" for the "general good and safety of the Nassau County Jail." (Tr. 23, June 4, 1974). See also id. at 52. While this tends to establish that defendants' motivation may not have been improper, it falls far short of showing any connection between jail discipline and the regulation in question. *fn4" Defendants' claim in this regard simply must fail for an entire lack of proof.

 2. Jail Safety

 What has been said above about jail discipline seems equally applicable here. This court will not quarrel with the legitimacy of a public need for orderliness and safety in the management of a jail. Hairgrooming regulations have been upheld, as defendants point out, as applied to fire department personnel when a showing is made that long hair might otherwise interfere with the functioning of frequently used gas masks, or that other safety considerations are present. That was clearly the case in a recent decision by Judge Costantino of this district, Kamerling v. O'Hagan, 74 C 1061 (E.D.N.Y., July 24, 1974), as well as in Yarbrough v. City of Jacksonville, 363 F. Supp. 1176 (M.D. Fla. 1973), cited by defendants. Defendants' misapprehension of the burden placed upon them is evident by their reliance on these cases, when there is absolutely no evidence concerning the need for and use of gas masks in the Nassau County Jail or any interference with their use if an individual did not comply with the challenged regulation. See McCune v. Frank, 74 C 1279, Memorandum of Decision (E.D.N.Y., December 13, 1974) (Mishler, Ch. J.); cf. Ammirati v. Metropolitan Commuter Transportation Authority, 73 C 1888 (E.D.N.Y., January 18, 1974) (Costantino, J.).

 The only real suggestion of a safety justification for the regulation was adverted to on cross-examination of plaintiff, *fn5" who had testified on direct examination that he had been held in violation of the Sheriff's Order. The court's own observation and recollection was that plaintiff and each of the other correctional officer witnesses wore their hair neat, well groomed and hardly of a length which could provide a jail inmate, reaching through the bars of his cell, with a sure grip. Nor was any evidence to the contrary offered by defendants. *fn6" Indeed, the court would have been unable to find, as did Chief Judge Mishler in Dwen, ...


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