The opinion of the court was delivered by: MISHLER
Plaintiff, a former New York City police officer, brought this action pursuant to 42 U.S.C.§ 1983 seeking injunctive and declaratory relief, as well as monetary damages, for the alleged deprivation of his civil rights by Police Department officials. Loughran attacks both the facial constitutionality and the arbitrary and capricious application of a Department promulgation
that generally restricts a member on sick report to the confines of his residence, permitting him to leave only when authorized by the district surgeon.
Loughran, appointed to the Police Department on February 15, 1963, suffered a series of back injuries between 1966 and 1971. Their aggravating nature caused him to be assigned to restricted duty
by the Department's district surgeon in March, 1972.Plaintiff was thereafter examined in February, 1973, and November, 1974, by the Department's orthopedic surgeon. Owing to his physical condition, Loughran was placed on sick report with full pay in February, 1975, and so remained performing virtually no duty
until his disability retirement in June, 1976.
Section 22/2.1 of the Police Department's Rules and Procedures provides:
A member of the force on sick report shall not leave his residence or place of confinement except by permission of his district surgeon or for the purpose of visiting a police surgeon.... Permission shall not be granted for a period of longer than one week. Before granting a renewal of such authorization the district surgeon shall reexamine the necessity therefor...
Pursuant to this provision, Loughran was initially granted permission to leave his residence three hours a day. A plea by union officials later that year to extend plaintiff's hours was denied. But in late 1975, Loughran's personal appeal led the district surgeon to increase the hours of authorized leave; daily he was permitted to be away from his residence between 11:00 a.m. and 2:00 p.m. and from 6:00 p.m. to 8:00 p.m.
During the several months of restriction, Loughran was examined on a weekly basis by the Department's district surgeon, Dr. Stanley August. Plaintiff also sought private care, and received continuous treatment from Dr. John Carrington, an orthopedic surgeon. Further medical evaluation came from the members of the Medical Board of the Police Pension Fund who were responsible for passing on plaintiff's application for ordinary disability retirement.
Sometime in early 1976, the exact time being unknown, Loughran was certified by District Surgeon August as capable of returning to restricted duty. Plaintiff, who continued to receive outside treatment, sought to controvert the determination and submitted letters from private practitioners indicating their belief in Loughran's inability to return to work. As a result, Loughran continued on sick report, received full pay, and was still permitted to leave his residence only five hours per day.
In March, 1976, it came to the attention of defendant McClancy, the Department's Medical Section Administrative Officer, that Loughran held the position of head coach of the Police Department football team during the tenure of his sick leave. It was McClancy's flat and candid position that plaintiff should be barred from participating in athletic activities that were inconsistent with his status and which might cause further aggravation to his condition. So as to ensure his timely return to service, McClancy summarily ordered plaintiff's hours be curtailed. Defendant August, pursuant to McClancy's unilateral decree, issued the formal dictate on March 12, 1976, reducing permitted leave to two hours per day. Loughran, in response, sought reinstitution of his previous hours by submitting a letter from his private doctor which recommended "conservative therapy including... swimming daily and walking daily." McClancy, without consulting either the district surgeon or plaintiff's private doctor, denied the request.
The following month, defendant August and plaintiff's physician, Dr. Carrington, conferred, and both concluded that Loughran should return to restricted duty. Accordingly, plaintiff reported to work on April 12, 1976. However, he rejected the proffered assignment claiming the Department's offer was not in conformity with an agreement to provide him activity consistent with a rehabilitative schedule. Plaintiff, therefore, returned to sick report and remained confined to his home 22 hours per day.
On April 28, 1976, Loughran filed this suit alleging a deprivation of his constitutional right to travel and the denial of due process in the arbitrary application of the subject Department promulgation. As well, plaintiff attacked the facial constitutionality of the provision. On June 2, 1976, Loughran was granted an ordinary disability retirement after his condition was diagnosed as a herniated disc. Accordingly, his suit for injunctive relief was withdrawn, but he continues to press his claim for declaratory relief and damages. The matter is now before the court on defendants' motion for summary judgment and plaintiff's cross-motion for the same.
It is Loughran's contention that as a result of McClancy's unilateral actions he has arbitrarily been deprived of the opportunity to engage in a rehabilitative program of physical therapy. Plaintiff argues that under the subject Department regulation, there having been no arrest, no charges brought or allegations made, nor any hearing or judicial order, he is being confined without due process of law. As a result, plaintiff argues, his constitutional right to travel has been unjustifiably curtailed. Depicting the infringement as one of "fundamental rights", Loughran contends only a compelling state interest will serve to justify the significant encroachment, adding that only the least restrictive alternative should be judicially tolerated.
Defendants, in turn, rely on the reasonableness of the provision in question. Noting that every member of the Department enjoys unlimited sick leave with full pay, it is the defendants' position that the liberality underlying sick leave benefits commands that a mechanism be established to prevent abuse and foster the expeditious return to duty. Defendants contend that the Police Department, in the dispatch of its own internal affairs, should be accorded wide latitude by the courts; judicial intervention, it is argued, is not warranted where administrative policy and practice is neither arbitrary nor irrational.
Whether the restrictions imposed are a constitutionally impermissible abridgement on plaintiff's right to travel is the threshold question that must be examined. While the right to travel has repeatedly been recognized as a basic constitutional freedom, Dunn v. Blumstein, 405 U.S. 330, 92 S. Ct. 995, 31 L. Ed. 2d 274 (1971), Shapiro v. Thompson, 394 U.S. 618, 89 S. Ct. 1322, 22 L. Ed. 2d 600 (1968), its exercise is not without certain limitations. The proper standard against which any limitation must be evaluated in assessing its validity under the due process clause is a function of the cost the restriction may tend to impose on the exercise of the right. Only when the restriction serves to "penalize" the practice of this constitutional freedom ...