APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE D.C. Civil No. 74-0216
Before Adams, Rosenn and Sloviter, Circuit Judges.
This appeal presents for review the issue of the constitutionality of restrictions imposed on the conduct and speech of municipal firemen. Here a fireman challenges the validity under the first amendment of certain regulations of the Wilmington Fire Bureau. In addition, he presents us with the question whether a trial judge may restrict communication between an attorney and client during the period the client is under cross-examination.
The City of Wilmington employed Ronald J. Aiello as a fireman from June 3, 1966, until November 7, 1975. On the evening of January 30, 1973, he became intoxicated and broke into a retail store in Wilmington, the Record Museum.*fn1 He was found lying on the floor in the store by two policemen. Aiello remembers saying to the policemen that he was a city fireman or "please don't arrest me." The policemen disregarded his plea, arrested him, and subsequently charged him with burglary. Thereafter, the State nolle prossed the criminal charges then pending against Aiello because there appeared to be a reasonable doubt whether he had sufficient intent to commit a crime.*fn2
While he was in jail Aiello was informed by Assistant Fire Chief Francis H. DiMichele that he was forthwith suspended from the Bureau of Fire pursuant to section 169.16 and 169.23 of its Rules and Regulations. Those rules require a fireman under penalty of dismissal, suspension or demotion:
169.16. To refrain from conduct unbecoming a fireman and a gentleman whether on or off duty.
169.23. Be governed by the customary rules of good behavior observed by law-abiding and self-respecting citizens. Regardless of the time or place, whether in uniform or not, members shall conduct themselves in a manner that will not bring discredit to themselves or to the Department.
Subsequently, Aiello was instructed by Fire Chief John J. Malloy to report to his fire station twice per day during the period of his suspension.*fn3
After the state's decision not to prosecute the charges against him, Aiello received two Charges and Specifications dated April 25, 1973, from the Fire Bureau. These charged him with violations of Rules 169.16 and 169.23 respectively. The charge under Rule 169.16 alleged that
Aiello failed to conduct himself in a manner conducive to good conduct and behavior. This unprofessional action reflects on his creditability as an employee of the Department of Public Safety as required by the Rules and Regulations of the Bureau of Fire.
The section 169.23 charge alleged:
Fireman Ronald Aiello did not govern himself by the customary rules of good behavior observed by law-abiding citizens and self-respecting citizens, but instead, conducted himself in a manner that brought discredit both to himself and to the Department of Public Safety.
All members of the Bureau of Fire must at all times maintain the highest standard of respect for others, both in nature of trust and confidence. By being found inside the Record Museum, after they were closed for business, you have, in the eyes of the public and the department, placed an obstacle to total trust and confidence so urgently needed in our line of duty.
Above action has damaged the good name of the Department by failure to observe rules of law-abiding citizens, created distrust in performance of duty in the eyes of all members of the Department of Public Safety.
A hearing on the charges was conducted on May 8, 1973, before a trial board consisting of Deputy Chief Malloy, Assistant Chief Francis DiOrio, and Captain F. Thomas Savage, all named as defendants in this action. Although Aiello pled not guilty to the two charges he did not dispute the allegation that he had been found unaccountably sprawled inside the Record Museum.
In his defense Aiello argued that he did not intentionally or effectively violate the "high standard" required of firemen and had not brought discredit upon Wilmington's fire department. The district court characterized the "main import" of Aiello's testimony, as one of
personal problems stemming from family conflicts (which) placed him under heavy emotional stress, resulting in excessive drinking and culminating in the Record Museum incident. He also offered medical evidence to show that his current mental condition was not such that he could not completely perform his duties as a fireman. It was additionally noted that he was undergoing therapy on an ongoing basis to prevent any similar occurrence.
Aiello v. City of Wilmington, 426 F. Supp. 1272 (D.Del.1976).
The Board found Aiello guilty as charged. As punishment, the Board imposed several sanctions:
(1) one thousand hours penalty time on each of the two charges for a total of two thousand penalty hours;
(2) forfeiture of his salary from the date of suspension, January 30, through the date of the hearing, May 8; and
(3) reinstatement as of May 9, with probationary status until all penalty hours had been expended, and the stipulation that the probation period would in no event be less than two years from May 9, 1973.
The Board also stated that any further violation of the two rules during the probationary period would result in his dismissal.
Aiello retired from service with the Fire Bureau because of psychiatric disability in November 1975. Prior to his retirement he had completed working a large portion of the penalty hours without pay.
In the meantime, Aiello filed a complaint on October 21, 1974, in the United States District Court for the District of Delaware, under 42 U.S.C. § 1983, initiating the instant action. He sought injunctive and declaratory, as well as monetary, relief on behalf of a class of similarly situated firemen.*fn4 The amended complaint alleged, inter alia, that "Rule(s) 169.16 and . . . 169.23 are unconstitutional in that they constitute an invasion of privacy in violation of the First, Ninth, and Fourteenth Amendments and furthermore they are overly broad and vague in violation of the First and Fourteenth Amendments." The amended complaint also alleged that "Bureau of Fire Rule 170.7 which bars gossiping about a member of the Department of Public Safety, and Rule 170.8 which prohibits criticizing an official action of a superior officer are unconstitutional in that they are vague and overbroad in violation of the First and Fourteenth Amendments."*fn5
The defendants moved for summary judgment on all issues. Aiello cross-moved for summary judgment on his first amendment claims and two other issues not relevant here. The district court granted the defendants' motion with respect to all but two issues and entered summary judgment for the defendants.*fn6 The summary judgment disposed of all the first amendment claims before us.
The district court held that Aiello lacked standing to challenge Rules 169.16 and 169.23 for vagueness because he was "the perpetrator of "hard (core) conduct which any reasonable person must know would be cause for discipline or dismissal from employment.' " Aiello v. City of Wilmington, supra, 426 F. Supp. at 1293. The court also rejected Aiello's overbreadth attack on these rules. The court held that Aiello had failed "to satisfy the prerequisite for overbreadth consideration in two respects." Id. First, the court found it "questionable whether his conduct fell within the purview of First Amendment activities, the cornerstone of the overbreadth doctrine." Id. "More importantly," the court noted, "(t)here is little doubt that in the present case Rules 169.16 and 169.23 legitimately apply to a substantial amount of conduct or number of activities which properly may be proscribed, and the overbreadth, if any, of the rules is marginal." Id. at 1293-94. Finally, the court found Aiello's allegations of chill to be merely subjective and thus that he lacked standing to challenge the Rules' constitutionality. Aiello filed a motion seeking reconsideration of the court's ruling that Rule 169.23 was not unconstitutionally overbroad in light of this court's decision in Gasparinetti v. Kerr, 568 F.2d 311 (3d Cir. 1977).*fn7 That motion was denied.
In May 1978, the case was tried to a jury on the remaining substantive issues: whether the penalty imposed on Aiello by the Trial Board was unreasonable and violative of substantive due process and whether he had been denied procedural due process. The jury found for the defendants on those issues and the court denied Aiello's motion for a new trial. Aiello appealed.
On appeal, Aiello argues that his first amendment attack on the Bureau of Fire rules should be considered with respect to two distinct time periods. The first is the period commencing with the incident of January 30, 1973, and extending until his Trial Board hearing of May 9, 1973. The second is during the period in which he was on probation, i. e., from the date of the hearing until his ultimate retirement from the fire department in November, 1975.*fn8 We will consider each of these in turn.
As to the earlier period, Aiello contends that his conduct in entering the Museum and taking any goods was not intentional. He relies on testimony by the psychiatrist that, at the time Aiello smashed the Museum window, he had an "acute disassociative reaction with paranoid symptoms." Aiello claims that because his conduct was unintentional it did not constitute "hardcore conduct," and therefore the ...