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October 31, 1978

George J. BAKER, Thomas J. DeGati, Jr., James F. Freeman, Robert G. McNicholl, Michael T. Neville and Paul F. Zminkowski, Plaintiffs,
Donald F. CAWLEY, Michael J. Codd, as Police Commissioners of the City of New York, and the City of New York, Defendants

The opinion of the court was delivered by: STEWART


Plaintiffs, former New York City policemen, challenge the constitutionality of New York City Administrative Code § 434a-20.0, which authorized their suspension without pay for the period between the filing of departmental charges against them and the final determination of those charges, which resulted in their dismissal from the police force. Plaintiffs Baker, DeGati, Zminkowski, McNicholl and Neville were members of the 13th Division of the Brooklyn North Public Morals District and were allegedly involved in a bribe-soliciting and receiving scheme, known as a "pad", in connection with illegal gambling activities in their Division. For his role in the pad, which provided monthly payments to officers in the Division in exchange for which the officers would refrain from making arrests, each of the plaintiffs was suspended from his duties as a police officer on May 9, 1972. Plaintiffs' trials on the charges began on November 1, 1973, and ended on May 30, 1974. The trials comprised thirty-nine sessions, held in the evenings at plaintiffs' requests. Plaintiffs were found guilty of the charges against them and were dismissed from the police force on November 18, 1974. Plaintiff Freeman, assigned to the 15th Division Plain-clothes Squad, was suspended on April 25, 1972 for soliciting and receiving a bribe to ignore and not report heroin in the possession of the alleged bribe-giver. Freeman's trial took place on January 18 and 19 and February 21, 1973. He was found guilty and dismissed from the force on April 9, 1973. Although many of their fellow officers were indicted and tried for criminal offenses arising out of bribe-soliciting and receiving schemes, none of the plaintiffs faced criminal charges.

 From the date that each plaintiff was suspended, none received any compensation from the Police Department. Thus, plaintiffs Baker, DeGati, Zminkowski, McNicholl and Neville were suspended without pay for a period of over thirty months pending their dismissal from the Department, while plaintiff Freeman was suspended without pay for over eleven months. The Police Commissioner's authority to suspend police officers without pay pending the resolution of charges against them is found in § 434a-20.0 of the New York City Administrative Code. This section reads:

Suspension of members of force. The commissioner shall have power to suspend, without pay, pending the trial of charges, any member of the force. If any member so suspended shall not be convicted by the commissioner of the charges so preferred, he shall be entitled to full pay from the date of suspension notwithstanding such charges and suspension.

 Plaintiffs' complaints charge that their constitutional rights under the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution were violated by the operation of § 434a-20.0. Their suits are brought under 42 U.S.C. § 1983, with jurisdiction resting on 28 U.S.C. § 1343. Named as defendants are Donald F. Cawley and Michael J. Codd, former Police Commissioners, and the City of New York. The relief originally sought by plaintiffs consisted of damages and declaratory and injunctive relief. Because plaintiffs' departmental trials have already been completed and they have been dismissed from the police force, their request for an injunction against their payless suspension is moot. Also no longer in issue is plaintiffs' claim that they have been denied due process, a claim which has apparently been abandoned. *fn1" The sole remaining issue, therefore, is whether § 434a-20.0 has denied plaintiffs the equal protection of the law.

 The equal protection challenge is based on the fact that police officers in New York City are the only civil service employees in the State of New York who may be suspended without pay pending the resolution of formal charges for a period longer than thirty days. § 75(3) of the New York Civil Service Law (McKinney's 1973) forbids payless suspensions of civil servants for more than thirty days:

Suspension pending determination of charges; penalties. Pending the hearing and determination of charges of incompetency or misconduct, the officer or employee against whom such charges have been preferred may be suspended without pay for a period not exceeding thirty days. . . .

 Thus, even though a civil service employee may ultimately be found guilty of the charges against him and dismissed, he will nonetheless be entitled to full pay for any period of suspension in excess of thirty days. E. g., Cassidy v. Police Department, County of Nassau, 54 A.D.2d 682, 387 N.Y.S.2d 266 (2d Dept.1976). However, New York City police officers are not afforded this protection. The thirty-day limitation contained in § 75(3) has been held to be inapplicable to suspensions of New York City police officers pursuant to § 434a-20.0. E. g., Scornavacca v. Leary, 38 N.Y.2d 583, 381 N.Y.S.2d 833, 345 N.E.2d 304 (1976); Cugell v. Monaghan, 201 Misc. 607, 107 N.Y.S.2d 117 (S. Ct. New York Co. 1951). The authority for the inapplicability of § 75(3) is found in § 76(4) of the New York Civil Service Law, Cugell v. Monaghan, supra, 107 N.Y.S.2d at 124-25, which states in relevant part:

Nothing contained in section seventy-five or seventy-six of this chapter shall be construed to repeal or modify any general, special or local law or charter provision relating to the removal or suspension of officers or employees in the competitive class of the civil service of the state or any civil division. . . .

 Since § 434a-20.0 and its predecessors date back to 1898 (it was codified as part of the New York City Administrative Code in 1917), and since the thirty-day limitation on payless suspensions came into being in 1941, Id., 107 N.Y.S.2d at 124, the New York City Police Commissioner's authority to suspend officers indefinitely pending departmental trials was unaffected by the enactment of § 75(3) and its predecessors. *fn2" It is this unequal and harsh treatment of which plaintiffs complain.

 The case is currently before us on cross-motions for summary judgment. The Corporation Counsel of the City of New York ("the City"), representing the defendants, has moved for summary judgment on the grounds that § 434a-20.0 does not deprive police officers of the equal protection of the laws. Plaintiffs have moved for partial summary judgment on the issue of liability, claiming that, as a matter of law, § 434a-20.0 denies them equal protection.

 We deal first with the City's argument that the equal protection claims of DeGati, Freeman, McNicholl and Neville are barred by res judicata. After they had been dismissed from the Police Department, these plaintiffs brought proceedings in New York State Supreme Court, pursuant to Article 78 of the New York Civil Practice Law and Rules (McKinney's 1963), challenging the actions of the Police Commissioner. DeGati, McNicholl and Neville each contended that the delay in instituting their departmental trials violated their constitutional rights to a speedy trial and that they were prejudiced by the delay. In addition, McNicholl and Neville argued that the delay in bringing them to trial before the Department denied them due process of law and each sought back pay for the period of unreasonable delay. Freeman's Article 78 petition assailed the sufficiency of the evidence against him and did not raise any questions concerning the constitutionality of the proceedings or the delay in bringing them. None of the Article 78 petitions raised the equal protection question which is before us in this case, even though it could have been raised in the form of an action for a declaratory judgment. Matter of Kovarsky v. Housing & Development Administration, 31 N.Y.2d 184, 335 N.Y.S.2d 383, 286 N.E.2d 882 (1972). The City claims that the equal protection claims of these plaintiffs are barred by res judicata because they could have been brought in the Article 78 proceedings. It is clearly the law in this Circuit that res judicata does not apply in § 1983 suits with respect to claims that could have been but were not raised in a prior state suit. Graves v. Olgiati, 550 F.2d 1327, 1329 (2d Cir. 1977) (Kaufman, C. J.); Lombard v. Board of Education, 502 F.2d 631, 635-37 (2d Cir. 1974), Cert. denied, 420 U.S. 976, 95 S. Ct. 1400, 43 L. Ed. 2d 656 (1975); Williams v. Sclafani, 444 F. Supp. 906, 915 (S.D.N.Y.1978). Plaintiffs' equal protection claims, therefore, are not precluded from being raised in this Court, and we now turn to the merits of those claims.

 Because this case does not involve a suspect classification or a fundamental constitutional right, the appropriate standard of review is the traditional standard, which requires us to uphold the provision of the City's Administrative Code under attack here if it bears some rational relationship to legitimate City aims. San Antonio School District v. Rodriguez, 411 U.S. 1, 40, 93 S. Ct. 1278, 1300, 36 L. Ed. 2d 16 (1973). Plaintiffs bear the burden of demonstrating that there is no rational connection between the Code provision and the aims which it purports to further. Kelley v. Johnson, 425 U.S. 238, 247, 96 S. Ct. 1440, 1445, 47 L. Ed. 2d 708 (1976). Legislatively-created classifications will not be set aside as unconstitutional unless it can be shown that they are wholly unrelated to the objective of the statute or ordinance which created the classification. Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 314-16, 96 S. Ct. 2562, 2567, 2568, 49 L. Ed. 2d 520 (1976). To put plaintiffs' burden in more concrete terms, they must prove that the power of the Police Commissioner to suspend New York City police officers indefinitely pending the trial of charges against them, while all other civil service employees of the City and State of New York may be suspended without pay for no more than thirty days pending resolution of charges against them, is wholly unrelated to the aims of § 434a-20.0, which historically have been recognized as to ensure the integrity and competency of the New York City Police force. The question before us, then, is whether the power to suspend police officers accused of departmental infractions or crimes furthers in any way the goal of preserving the integrity of the police force and the public's perception thereof.

 Plaintiffs McNicholl and Neville argue that the state discriminates against police officers in New York City in that only they may be suspended without pay beyond thirty days and that the unequal treatment furthers no legitimate state interest. They contend that New York City Police perform the same functions as police elsewhere in New York State and that mere location in New York City is insufficient to justify the differentiation in treatment. They also argue that Transit and Housing Authority Police perform the same functions as New York City policemen, but the former may be suspended without pay for no more than thirty days. Before turning to the substance of these arguments, we think it appropriate to point out that it is not the State but the City that treats New York City police officers differently from other civil service employees. *fn3" While the manner in which the State and other municipalities within the State treat their civil servants, particularly their police, may be relevant to the determination of whether § 434a-20.0 is rationally related to a legitimate City interest, the ultimate question for us to answer is whether the City acted rationally in enacting § 434a-20.0 or whether the different treatment of ...

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