National Litigation Hotline

Second Circuit Upholds Tattoo Order

The Second Circuit has rejected constitutional challenges under 42 U.S.C. ' 1983 to Hartford (CT) Police Department General Order 6-15, allowing the police chief to direct personnel to cover offensive and unprofessional tattoos, and the chief's April 14, 2003 memorandum, giving him the authority to order that spider-web tattoos, known as a symbol of racist violence, also be covered while personnel are on duty. Inturri v. City of Hartford, 2006 WL 231671 (Jan. 31).

Reviewing and affirming the district court's order, the Second Circuit began by finding plaintiff police officers' overbreadth challenge without merit. In so holding, the court recognized that “General Order 6-15 affects only tattoos displayed by on-duty police officers, and the First Amendment rights of public employees are significantly more limited than those of the general public.” Acknowledging that a police department has a reasonable interest in maintaining a professional public image and that those tattoos covered by the General Order were not likely to be protected by the First Amendment, the Second Circuit found no “'realistic danger that the statute itself will significantly compromise recognized First Amendment protections of parties not before the Court.'”

Addressing the plaintiffs' claim that the General Order was unconstitutionally vague and in violation of their rights to due process, the court noted that in the context of public employment, “a specific notice by an employer as to what behavior falls within the scope of a regulation can provide adequate notice.” Finding that the police chief's April memorandum properly met this standard, the Second Circuit rejected plaintiffs' vagueness challenge. Further, the court dismissed plaintiffs' claim that the General Order was vague on its face, finding that while the order “implicates expressive conduct, [it] does not affect any significant amount of conduct that would actually be protected by the First Amendment.”

In striking down plaintiffs' equal protection challenge, the court began by applying rational basis scrutiny, rather than the heightened scrutiny demanded by plaintiffs, because there is no fundamental liberty interest in personal appearance in public employment. Using this lesser standard, the Second Circuit held that “it was rational for the police chief to require police officers to cover a tattoo which could reasonably have been perceived as a racist symbol.” Lastly, the court dismissed plaintiffs' claim of selective prosecution in violation of equal protection in that because no other officers had tattoos that could be interpreted as racist, the plaintiffs could not prove that they were treated differently from other similarly situated officers. Further, the Second Circuit found that even if plaintiffs were treated differently, “it was not to inhibit their exercise of First Amendment rights, because … the plaintiffs had no First Amendment right to display their tattoos.”

Second Circuit Upholds Tattoo Order

The Second Circuit has rejected constitutional challenges under 42 U.S.C. ' 1983 to Hartford (CT) Police Department General Order 6-15, allowing the police chief to direct personnel to cover offensive and unprofessional tattoos, and the chief's April 14, 2003 memorandum, giving him the authority to order that spider-web tattoos, known as a symbol of racist violence, also be covered while personnel are on duty. Inturri v. City of Hartford, 2006 WL 231671 (Jan. 31).

Reviewing and affirming the district court's order, the Second Circuit began by finding plaintiff police officers' overbreadth challenge without merit. In so holding, the court recognized that “General Order 6-15 affects only tattoos displayed by on-duty police officers, and the First Amendment rights of public employees are significantly more limited than those of the general public.” Acknowledging that a police department has a reasonable interest in maintaining a professional public image and that those tattoos covered by the General Order were not likely to be protected by the First Amendment, the Second Circuit found no “'realistic danger that the statute itself will significantly compromise recognized First Amendment protections of parties not before the Court.'”

Addressing the plaintiffs' claim that the General Order was unconstitutionally vague and in violation of their rights to due process, the court noted that in the context of public employment, “a specific notice by an employer as to what behavior falls within the scope of a regulation can provide adequate notice.” Finding that the police chief's April memorandum properly met this standard, the Second Circuit rejected plaintiffs' vagueness challenge. Further, the court dismissed plaintiffs' claim that the General Order was vague on its face, finding that while the order “implicates expressive conduct, [it] does not affect any significant amount of conduct that would actually be protected by the First Amendment.”

In striking down plaintiffs' equal protection challenge, the court began by applying rational basis scrutiny, rather than the heightened scrutiny demanded by plaintiffs, because there is no fundamental liberty interest in personal appearance in public employment. Using this lesser standard, the Second Circuit held that “it was rational for the police chief to require police officers to cover a tattoo which could reasonably have been perceived as a racist symbol.” Lastly, the court dismissed plaintiffs' claim of selective prosecution in violation of equal protection in that because no other officers had tattoos that could be interpreted as racist, the plaintiffs could not prove that they were treated differently from other similarly situated officers. Further, the Second Circuit found that even if plaintiffs were treated differently, “it was not to inhibit their exercise of First Amendment rights, because … the plaintiffs had no First Amendment right to display their tattoos.”