Kelley v. Johnson – Oral Argument – December 08, 1975

Media for Kelley v. Johnson

Audio Transcription for Opinion Announcement – April 05, 1976 in Kelley v. Johnson

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Warren E. Burger:

We will hear arguments next in Kelley against Johnson.

Mr. Sweeney you may proceed whenever you are ready.

Patrick A. Sweeney:

Mr. Chief Justice and may it please the Court.

In July of 1971, the Police Commissioner of Suffolk County amended the rules and regulations of the Suffolk County Police Department, concerning certain grooming regulations for the members of the police force.

In substance, the rule stated that members of the force should be neat and clean at all times and that male personnel should comply with grooming standards in respect to hair.

Hair on the head should be neat, cleaned and trimmed.

It should not touch the ears or the collar and the hair in front of the head should be groomed so that it does not fall below the band of properly worn headgear.

In no case would the bulk or length of the hair interfere with the proper wear of any authorized headgear.

The grooming regulation also mentioned sideburns that they should be neatly trimmed.

With respect to mustache, a short and neatly trimmed mustache may be worn.

As to beards and goatees, the face should be clean-shaven.

Wigs are also mentioned in the regulation that an individual may wear a wig for cosmetic reasons to cover natural baldness, if he so desires.

This regulation was to take effect August 1, 1971.

On August 4, 1971, an action was commenced in — in the Federal District Court for the Eastern District in New York basically for a declaratory judgment and a permanent injunction enjoining the Suffolk County Police Department from enforcing such a regulation.

The plaintiff’s complaint in that case stated that the mere existence of the regulation violated his First Amendment right of free expression and the second aspect is that the regulation violated the Fourteenth Amendment of the constitution of the United States because no state shall deprive any person of life, liberty, or property without Due Process of law nor deny to any person within its jurisdiction the equal protection of the law.

Potter Stewart:

Where in the — where in these papers is the regulation issue?

Patrick A. Sweeney:

The regulation is in the appendix on page 57 and 58.

I will mention that there was an amendment to even that regulation and that is on page 48.

Potter Stewart:

48?

Patrick A. Sweeney:

Yes.

The main one that I have just referred to is on page 57 and 58.

Potter Stewart:

And what is the gist of the amendment?

Patrick A. Sweeney:

The amendment basically was a compromise that for instance with respect to mustache is, if they happen to go below the lower lip that that did not matter.

Potter Stewart:

How many members of the Suffolk County Police Department?

Patrick A. Sweeney:

There are approximately 2,600 members of the Suffolk County Police Department of which approximately 2,100 are uniformed police officers.

Potter Stewart:

And this applies — well, at — at least it provides for waivers or exemptions?

Patrick A. Sweeney:

Yes, it does.

Potter Stewart:

For non-uniform personnel?

Patrick A. Sweeney:

Yes, it does.

For non-uniform personnel and personnel who would be assigned to a particular undercover duties an exception would be made.

William H. Rehnquist:

Mr. Sweeney, does the Suffolk County Police Department have jurisdiction over incorporated cities within Suffolk County or just outside of incorporated city?

Patrick A. Sweeney:

Just in Suffolk County.

William H. Rehnquist:

Well, how — the incorporate cities are not regard as being part of Suffolk County?

Patrick A. Sweeney:

Yes.

Well, in Suffolk County they would have jurisdiction over most of the towns within the county so that that is the predominant police force in Suffolk County.

There are some local village police departments.

William H. Rehnquist:

And is their jurisdiction concurrent?

Patrick A. Sweeney:

Yes and the issue is before this Court of whether or not the length of hair, whether it is on the head or facial or a combination of both is a First Amendment right and if it is — or does it fall within a — at least penumbra of the First Amendment and if it is not under the First Amendment, does it fall under the Fourteenth Amendment.

Third, if it does fall within either one of these amendments, is it a substantial right equivalent to, for instance, free speech or is it an ingredient of personal liberty which though not substantial, is nevertheless a right.

And lastly, as applied to police officers in Suffolk County, does the — the state’s interest in effect of law enforcement by uniformed police — appearance of police officers outweigh the individual’s right to govern his personal choice of appearance?

Now, when the case first came before the Federal District Court for the Eastern District of New York, it was basically on papers and affidavits submitted to the court.

Chief Judge Mishler in that case, dismissed the complaint, stating basically that the Suffolk County Police Department, because it was quasi-military in character that — and that uniformity of dressing, grooming are essential to effect the law enforcement, the complaint was dismissed.

On appeal, the Second Circuit Court of Appeals reversed, stating in substance that there should have been — a hearing or some testimony concerning the state’s interest in this case.

They did while stating that they held no view on the merits, they did state that hair in and off itself presents a substantial constitutional question.

They stated that the length of hair was an ingredient of an individual’s personal liberty and that personal liberty is not composed simply of the freedom held to be fundamental, but includes the freedom to act on less significant personal decisions.

After a hearing before Chief Justice Mishler, he more or less reversed what he had stated before, feeling himself bound by what the Second Circuit had reiterated in terms of quasi-military, and stated that uniformity of police officers and safety of police officers are not legitimate state interest.

The Second Circuit Court of Appeals affirmed without opinion and of course we are here before this Court on a petition for certiorari.

First with reference to whether or not if it is substantive right?

Mr. Sweeney, at this point do I understand New York State Courts have gone the opposite way in this very issue?

Patrick A. Sweeney:

That is correct.

In Greenwald against Frank, the state — the highest court of the State of New York, the Court of Appeals unanimously affirmed the Appellate Division, Second Department.

They squarely ruled on an issue which was before the Nassau County — which was a similar regulation in Nassau County which is the sister country of Suffolk County.

Anddo I correct — do I understand that the — the Federal Court, the Second Circuit has upheld a regulation against attack so far as firemen are concerned?

Patrick A. Sweeney:

That is correct also and — and that is both in this case and with respect to fireman, those were the cases decided after the Court of Appeals of the State of New York had ruled that with respect to police officers, the issue was one of a modest regulation because the Suffolk County Police Department was quasi-military in character that there was not a substantial federal question present.

What constitutes a neat appearance in the opinion of the Police Commissioner of Suffolk County should be left to the discretion of the police commissioner.

The length of hair in and off itself does not rise to basic constitutional questions.

Substantive constitutional rights and liberty should only be recognized by this Court wherefundamental liberties are at stake.

Certainly, this Court has seen fit to go beyond the literal language of the Bill of Rights by defining such rights as right of privacy, but we do not have that issue present here.

The burden should not be on the stake here that Suffolk County Police Department to show that this regulation is constitutional.

They should be in a regulation of this type, a presumption of constitutionality.

Patrick A. Sweeney:

I have this in his brief —

William H. Rehnquist:

Is there a presumption of constitutionality with respect to every kind of regulation or statute?

Patrick A. Sweeney:

Yes.

William H. Rehnquist:

Well then, you are just saying that general rule should — should apply here as well –?

Patrick A. Sweeney:

Yes, it should apply here and — and my adversary is mentioned that in that respect that you can seek review in a state court where a regulation is arbitrary and I do not disagree with that viewpoint.

I think that is what was done in Greenwald against Frank and I think that is what should have been done in this case and that was the proper way to decide because that can always be tested for reasonableness in a state court.

William H. Rehnquist:

Are you suggesting that the state court would demand more of the state in effect under the — its reasonableness or arbitrary test than the Federal Courts could under the constitution?

Patrick A. Sweeney:

I think that the State Courts probably, since they are here, suits by Patrolmen Benevolent Association’s constantly at various regulations or rules of Police Departments that they are more familiar with at least having a hearing as to arbitrariness and — and that — what the rule of this nature, that is the proper.

They would have the burden of showing arbitrariness at that point and I think that is the better approach and this — this regulation is no different from any other regulation that may be part of the rules and regulations of the Suffolk County Police Department.

It is always subject to reasonableness.

Two cases are in conflict which is one of the reasons a petition for certiorari was brought to this Court and that is between the Second Circuit decision here and the Eighth Circuit.

If you look at the underlying reasoning in both circuits, they both do not define the length of hair as a substantial constitutional right.

They merely both say it is less significant.

Certainly, it is not enumerated in the constitution, but they lend — both speak in terms of the Fourteenth Amendment.

In that respect, they both place the burden of proof upon, in this case, the Suffolk County Police Department, to show a legitimate state interest reasonably related to the regulation.

In respect to a police officer, he certainly is the most visible representative of government that we have in this country today.

It is the position of the police commissioner that the grooming of the hair is no different from cleaning and pressing his uniform, cleaning his fingernails, bathing frequently.

It is just part of those rules and regulations.

If you are going to isolate every one of these regulations then we can be in court on every single one of them.

There has to be not a separation of this as a basic fundamental right.

There are parents, say, as much about the police officer — about themselves as the agency they represent and for the public trust they hold.

Grooming standards as part of uniform regulations is a legitimate state interest, is a non question interest of a local police department in effect of law enforcement and if you look at the two decisions again, you will see that they are really differing on what is a legitimate state interest.

One court is saying and the Eighth Circuit is saying, yes we believe that is a legitimate state interest and the second court by affirming what Chief Judge Mishler had stated.

He is saying it is not legitimate state interest.

William H. Rehnquist:

Well, is it your position that there is a constitutional right in these people that would protect them if the state could not show a legitimate state interest?

Patrick A. Sweeney:

I am saying that, firstly, if assuming arguendo there is a right, I am saying that, it is not substantial that it may be protected by the Fourteenth Amendment, but the state’s interest in effective law enforcement outweighs that individual police officer in having as hair at any length he chooses.

We are all subject to the some infringement on our personal liberties.

If I was to come before Your Honors now wearing a bathing suit, I probably would not have gotten passed the guards.

Now, I guess that there is some infringement on my personal liberty at that point, but certainly the fact that this is a third branch of government and the dignity of the court outweighs my individual preference at that time.

Well, the regulation of this Court, I believe is a guideline which says conservative business dress, I am not sure if at some point what that means.

Warren E. Burger:

(Inaudible), except in the remote sense getting more and more remote that you are an officer at the bar?

Patrick A. Sweeney:

Yes.

Thurgood Marshall:

It regulates towards both, does it?

Patrick A. Sweeney:

Yes, it does.

Thurgood Marshall:

That would have brought a certain mandate since where Chief Justice Burger asked it?

Patrick A. Sweeney:

Well —

Thurgood Marshall:

Chief Justice Hughes?

Patrick A. Sweeney:

I can say this.

It would probably bar many of the Presidents of the United States and it would probably bar Jesus Christ if he was alive today or Moses, but by the same token, any of those individuals, if they lived today to be Suffolk County police officer, I could not be one; I am over 29 years old so I could not be one for that reason.

I — I will have to take a civil service test.

There are many reasons why one would become a police officer.

There are many restrictions on it.

William H. Rehnquist:

But what if Suffolk County passed an ordinance requiring all of its citizens when they appeared on the public streets to be dressed in (Inaudible); do you think that would raise a constitutional problem?

Patrick A. Sweeney:

Yes, I believe it would.

William H. Rehnquist:

Well then you — you in effect do feel that there is some right, constitutional right somewhere perhaps surrendered by policeman to regulate your own dress?

Patrick A. Sweeney:

Yes, I do.

I look at the —

Warren E. Burger:

They surrender some of it when they are required to wear uniforms?

Patrick A. Sweeney:

They certainly do and I — I believe the regulation of hair is part of that and — and if I — I attach that to the appendix or in a separate volume, excerpts from the rules and regulations of the Suffolk County Police Department —

Potter Stewart:

There is a difference when they go home and take off their uniforms and dress anyway they want, but they cannot very well change the length of their hair?

Patrick A. Sweeney:

No, and but when they go home even on their personal time, they can associate with persons known to have been convicted of misdemeanor or felony and that certainly is a restriction on their personal rights and Election Law 426 of the State in New York says that a police officer cannot be a member of a political committee, a political club, or contribute money.

Now, certainly that is all on his own personal time.

Warren E. Burger:

Now, that is something like hair check that is all was it not and up to now the hair check has survived, has survived constitutional scrutiny?

Patrick A. Sweeney:

Alright.

Warren E. Burger:

I think this is of a piece with — with that limitation?

Patrick A. Sweeney:

Well, I am just indicating that this is one of many infringements if you want to say it on what may be termed rights.

Warren E. Burger:

Is it not a greater infringement if you call that a greater limitation when the police regulations forbid his making a political speech?

Patrick A. Sweeney:

Yes, I would think it is.

Warren E. Burger:

It is a direct conflict of the First Amendment, is it not?

Patrick A. Sweeney:

Yes, I think it is a greater infringement, yes.

Mr. Sweeney, what — what do you concede is the burden of the Court of Appeals imposed on your client in the District Court?

Patrick A. Sweeney:

After reading the decision many times, it would seem to me that the burden placed was a — the rational relationship test — not the compelling interest, but I think there was some confusion in that decision because they talked about a substantial constitutional issue and then they talked about rationality and I think, even Chief Judge Mishler had a problem with that because you will see at the conclusion of his case, he says that we did not establish a legitimate state interest which shows he was — he was not sure of the burden of proof at that point himself.

(Inaudible) establishing a genuine public need for the regulation?

Patrick A. Sweeney:

Right and so that presented problems.

I would say that if anything, it should have been a legitimate state interest and that that was shown by the record.

(Inaudible)

Patrick A. Sweeney:

Yes.

I would reserve any time I have left for rebuttal.

Warren E. Burger:

Very well.

Mr. Wexler?

Leonard D. Wexler:

Mr. Chief Justice and may it please the members of the Court.

The first police department was established in New York City in 1844 not by right of the United States Constitution or the New York State Constitution, but local laws.

After that many police departments were formed and the first laws, declaring police departments or policeman quasi-military were in the 1880s, Masterson versus French in New York, 1888; McAuliffe versus City of New Bedford, 1880s; Massachusetts; Hart versus Board of Fire Commissions, 1880, New York.

Thereafter these cases became the leading cases cited in both State and Federal Courts throughout the country that policeman are quasi-military.

I feel those cases were wrong.

It was not until this Court said in Garrity that policemen, like teachers and lawyers are not relegated to worded down versions of constitutional rights and it was finally the Dwen case.

This case that said policemen are not quasi-military.

They are ordinary civil service workers.

Now, what has happened to police department since 1844?

The most significant thing was the Civil Service Law which was passed after all the leading cases of the 1880s.

William H. Rehnquist:

Do you think the policemen are to be required to wear uniform while on duty?

Leonard D. Wexler:

Yes sir.

William H. Rehnquist:

Do you think all citizens of Suffolk County could be required to wear uniforms while in public?

Leonard D. Wexler:

No.

William H. Rehnquist:

Then surely there are differences where the state may demand more of a member of the police force and of an individual citizen?

Leonard D. Wexler:

Yes sir, as an employee if there is an compelling state interest of course.

William H. Rehnquist:

Why do we get a compelling state interest standard when we are talking about what regulations the state can impose on an employee?

Leonard D. Wexler:

Because there are certain needs the state has which supersedes the needs of an individual, and therefore, the burden is placed upon the state to prove that need, the right to wear a uniform.

Of course if there is a need they have a right to do it.

William H. Rehnquist:

But why a compelling state interest?

William H. Rehnquist:

Why not simply a test of reasonableness or rationality?

Leonard D. Wexler:

Well, we are taking away someone’s rights.

If we are dealing with rights, constitutional rights, there should be a compelling state interest not the test of reasonableness.

These are not whims or rules.

These are rights or people we are talking about and there should be a compelling state interest if we are going to make the individual give up his rights.

Thurgood Marshall:

What about the right to have a pressed uniform?

Suppose I would like to wear baggy pants, I give it up when I go to the police department, do I not?

Also, I have shiny shoes, when I go to the police department, do I not?

Leonard D. Wexler:

I think they may be compelling state interest, yes.

I think you give that right up.

Thurgood Marshall:

But why do you have to have shiny shoes?

What state interest is in that, appearance?

Leonard D. Wexler:

Maybe, not appearance.

Maybe you do not.

Thurgood Marshall:

Well, what — in hair appearance?

Leonard D. Wexler:

It is more than that.

Whether I shine my shoes —

Thurgood Marshall:

(Voice Overlap) hair appearance?

Leonard D. Wexler:

Yes, it is appearance sir, but I think —

Thurgood Marshall:

Shinningshoes is an appearance?

Leonard D. Wexler:

Yes.

But I think there are different rights involved with —

Thurgood Marshall:

(Inaudible) one end to another?

Leonard D. Wexler:

Yes [Laughter] and I do not mean by that alone.

Well, as — as I said what happened to police department, so I am talking about quasi-military, the basis of the Barry case, the Dwen case, I said civil service came in after, these leading cases in the 1880s, Civil Service took away the right of the police commissioner to appoint, promote, suspend, and retire?

He no longer had that authority and civil service in New York State said the military, the state military is excluded from that.

I am trying to show the distinction why those cases do not apply the all leading cases.

Warren E. Burger:

But no one has argued that policemen and soldiers are exactly alike?

Leonard D. Wexler:

That — the argument has been up until Dwen —

Warren E. Burger:

Exactly alike?

Leonard D. Wexler:

No, quasi.

Warren E. Burger:

Quasi.(voice Overlap) alike —

Leonard D. Wexler:

I want to establish they are not.

Warren E. Burger:

They are not anything alike?

Leonard D. Wexler:

No.

I pointed out civil — I pointed out civil service has changed the appointment, the promotion, the retirement, the discharge, excluding the military.

Then we have — I am sorry.

Thurgood Marshall:

If the police cannot maintain order in the town, who do you send in?

Leonard D. Wexler:

I think the police can maintain order in the town.

Thurgood Marshall:

I said if they find an area where they cannot, who do they send in, the militia, do they not?

Leonard D. Wexler:

Yes sir.

Thurgood Marshall:

So, why would they send the military in to do with civilian job if the police have civilian job?

Leonard D. Wexler:

That is — it has gone beyond the police authority.

Thurgood Marshall:

That is right.

So it must be quasi at least?

Leonard D. Wexler:

No, I do not think so.

If I can be permitted to continue on in that —

Thurgood Marshall:

Well, if you have a school strike, you do not send in the military to teach school, do you?

Leonard D. Wexler:

No.

Thurgood Marshall:

And if you have a strike in some other department, any other department of the government, you do not send police — the military in for that do you?

Leonard D. Wexler:

Yes, you do in the postal strike, you send the policeman in.

Thurgood Marshall:

To move the mail not to do the postal work, not to sort the mail?

Leonard D. Wexler:

Sir, I thought that was the job that the postal to move the mail.

Thurgood Marshall:

The State Postal service, well I do not know anything about anystate postal service,I am taking about the state, the only department that is to supplant by the military is the police department.

Leonard D. Wexler:

I beg to defer sir.

When they would talk about the riots in the jail, they were going to send the state militia to take over the supervision in running of the jails.

That was the talk was, and that is what —

(Inaudible)

Leonard D. Wexler:

They did not.

What standard (Inaudible)

Leonard D. Wexler:

Compelling.

The state right was compelling?

Leonard D. Wexler:

Yes.

What you say about (Inaudible) a legitimate status?

When he says the rule as an arbitrary limitation and the purposeness was strike, is that what you — that spell out compelling?

Leonard D. Wexler:

Yes sir.

Well, continuing then the courts passed CPA, Article 78, giving the procedure in which the test, the findings of the head of the department, including the police commissioner.

It has been traditionally that the courts would not interfere or limitly interfere in the proceedings in the military.

Here we set up a legal proceeding to test the actions of a police commissioner.

I think the greatest significance to show that the police is not even quasi-military is the Taylor law.

The Taylor law provided that the police will be their bargaining unit and be a union and negotiate all terms and conditions, not with the police commissioner, but with the county representatives where the police commissioner is not one of the parties to the action.

Now, what are the terms and conditions that are being contracted between the county and that is any municipality and the police, the hours, the wages, and the uniform.

If the county and the PBA in their negotiations decided that be no uniform, the police commissioner must enforce it.

If they decided the uniform would be white regardless of what the police commissioner says, it has to be white.

In addition to the uniform, the hours, the terminal leave, the equipment, guns carried by policemen are now negotiable, negotiated.

In addition, thereto they have tour of duty.

They have personal leave.

When their tour of duty ends, when it starts, what shift they are in, these are all negotiable items.

Can we envision patrolman or the lowest rank in the service negotiating with Congress to establish a book of rules that the commander in chief must follow?

That is what we have now in police departments.

The patrolman, the PBA negotiates with the — with the county to create a contract which is then turned over to the police commissioner who must administer that contract.

Now, I agree —

Potter Stewart:

Does that not suggest that if they are so upset about this hair regulation, they should negotiate it with the county?

Negotiate it up.

That is the way things are done.

Leonard D. Wexler:

They have not been able to.

Potter Stewart:

Well.

Leonard D. Wexler:

That maybe a possibility.

Everything else is negotiated, I agree.

Warren E. Burger:

What if the union finally imposed on the department a requirement that they all have crew haircuts, what would be your remedy then?

Leonard D. Wexler:

If the union imposes it sir?

Warren E. Burger:

Yes.

The union negotiated a contract requiring crew haircuts essentially like that provided for the United States Marines?

Leonard D. Wexler:

Then I do not think the contract can — contract the way constitutional rights of its members.

I think the membership would have a right to attack it.

Again, my argument is trying to show they are no longer quasi-military in view of the fact of the rights that have been taken away from a police commissioner as he originally had and as I said the contract book that is negotiated first was very small.

It gets bigger and bigger each year which means the police commissioner has lost his power.

He is just the administrator of the book with certain other powers of course, but —

Thurgood Marshall:

Why did you sue him?

You sued the commissioner?

Leonard D. Wexler:

Because he is the one who passed this regulation.

He is the one who put it forth.

I have to talk about the other case, the Chameleon case.

My brother makes our position saying that how can you have two different decisions from the Circuit Court of Appeals.

I have to tell this Court that I have a trial of when and the appeal and the Trial of Chameleon and the appeal.

Chameleon was based on Dwen and that court, the City of New York were able to show that fireman responding to a fire must wear facial mask because most of them go into fires where there are numerous gases and they have to wear it.

They were able to prove through a legitimate state interest that the seal of the mask is affected by facial hairs and they proved this for many laboratory reports, and therefore, there was a legitimate state interest to regulate hair because of the safety to the men and of course —

(inaudible) did you, in the trial of that case?

Leonard D. Wexler:

Not on that theory sir.

I opposed it concerning the proof they offered, I conceded Dwen and I rely on Dwen.

I did fight the proof whether it is so or not.

If it so, they are right under Dwen and — and the finders of the fact found that they were right.

There was leakage in the gas mask.

William H. Rehnquist:

Well, if this — is this the standard that the courts reveal statutes or legislative ordinances by they hold a trial and make findings of fact, I thought that was for the legislature?

Leonard D. Wexler:

No, when the issue was involved, we had the trials in both cases; hearings, witnesses were called, fact situations.

In the Dwen case, the finder of the fact, Judge Mishler found the police department has failed to prove their — thepoint.

In the Chameleon case, they found that the fire commissioner did.

He found some compelling state interest that they should regulate hair because of the seal on the gas mask.

Now, a little while ago you spoke of a legitimate state interest, do you draw distinction between that and a compelling state interest?

Leonard D. Wexler:

No, the same.

Leonard D. Wexler:

Legitimate or compelling would be the same.

They do not sound the same to me, but you have sort to find them in any event?

Leonard D. Wexler:

Yes sir.

Can I — can I briefly say that with all this legalistic talk about hair, does it not really break down to a person’s grooming habits and prejudice?

We — I am sure when the police department was established in 1844; the policeman had the kind of hair that handlebar mustache, the mutton chops, and so forth.

When the decisions calling them quasi-military were passed, I am sure all policemen had the bushy hair, the mustaches, and so forth as we traditionally see.

It was not until the 60s where the hippies came in, where hair became a dirty thing and we started to regulate hair.

The regulation that we are attacking only came into 1971.

So prior to that there is no safety problem with hair, there is no uniformity problem, we are reacting to a situation, a hair situation —

William H. Rehnquist:

How much of the reaction was — was based on the fact that the policemen followed the general sartorial turn of the society?

In 1960, you would have not needed a regulation like this because no policemen would have wanted his hair the way your clients do?

Leonard D. Wexler:

Yes.

Warren E. Burger:

And in 1840 or 1530, the early dates you were talking about, they did not have electric razors or safety razors that was a common custom for great many people to wear beards –?

Leonard D. Wexler:

And to this day, it still common custom for many people to wear beards.

Warren E. Burger:

(Voice Overlap) some people?

Leonard D. Wexler:

Yes, is that not a personal right?

Warren E. Burger:

We are not talking about people generally; we are talking about policemen here?

Leonard D. Wexler:

But why are policemen?

Well, I am not supposed to ask questions, I am sorry.

Well, I think I will conclude with just saying what Thomas Jefferson said, no man should be judged by the cut of his hair.

Thank you.

Warren E. Burger:

Do you have anything further, Mr. Sweeney?

Patrick A. Sweeney:

Just briefly.

I think this Court realizes that we are not here talking about the hair of individuals.

We are talking about the length of hair of police officers.

It is the police commissioner’s contention that personal right, if it would be a right of a police officer, under that decision of Greenwald against Frank is offset by the powerful countervailing interest of the police department and the general public.

Certainly, the state court’s share equal responsibility with the Federal Courts on the enforcement of federal rights under the principles of comity that is the decision which should have been followed and if it is a right within the Fourteenth Amendment, the burden of proof would certainly sustain and the —

If I must say Mr. Sweeney, in this opinion of the Court of Appeals which take away personal liberty as not to compose simply and only of freedom under the fundamental, implying that this is not a fundamental right?

Patrick A. Sweeney:

Correct.

That includes the freedom to make an act unless significant personal decisions without arbitrary government interference and then going on to say limitation with such a right requires some showing, some showing, not compelling or not any other standard?

Patrick A. Sweeney:

That is correct.

That is some showing of public need —

Patrick A. Sweeney:

I believe —

In other words, Judge Mishler must have held, am I right, was that there was no showing of any kind?

Patrick A. Sweeney:

That is what he held.

And you are suggestion is that there is public need, in what?

Patrick A. Sweeney:

The uniformity of appearance and for safety of the police officer which in turn is safety of the general public.

Thank you.

Potter Stewart:

And the uniformity of appearance would be what for purposes so that the citizen can identify a policeman?

Patrick A. Sweeney:

That is correct and as they say in New York City Police for the would be perpetrators, the criminals, so they can identify police also, prevention of crime.

(Inaudible)

Patrick A. Sweeney:

No, I think if you are going to get into the reasonableness of the regulation then you are always going to have a problem.

For instance, if the hair is a little bit over the ears, is that a problem too?

I think you have to leave that to the discretion to the discretion of the police commissioner.

Let him set reasonable standards.

If they are unreasonable and I think he could promulgate even if this Court held that he had such a right, there is a possibility at some place in this country a police commissioner could make an unreasonable regulation, but I think a court would strike that down, for that reason as being unreasonable.

You are saying some regulations could be unreasonable?

Patrick A. Sweeney:

Certainly.

Such as shaving the head?

Patrick A. Sweeney:

Certainly.

Thank you.

Warren E. Burger:

Thank you gentlemen.

The case is submitted.