(concurring in part, dissenting in part):
I am unable to agree with the majority that the rule of the Milwaukee Police Department proscribing “conduct unbecoming a member and detrimental to the service” is unconstitutionally vague.
It is, of course, well settled that due process requires that a penal statute be “sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties.” A statute which “either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.” Connally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322 (1926).1 Moreover, where the statute’s literal scope “is capable of reaching expression sheltered by the First Amendment, the doctrine demands a greater degree of specificity than in other contexts.” Smith v. Go-guen, 415 U.S. 566, 94 S.Ct. 1242, 1247, 39 L.Ed.2d 605 (1974).
On the other hand, the test for vagueness is less stringent in other contexts. For example, with respect to criminal statutes regulating economic affairs, “Void for vagueness simply means that criminal responsiblity should not attach where one could not reasonably understand that his contemplated conduct is proscribed.” United States v. National Dairy Products Corp., 372 U.S. 29, 32-33, 83 S.Ct. 594, 9 L.Ed.2d 561 (1963). In the recent case of Parker v. Levy, 417 U.S. 733, 94 S.Ct. 2547, 41 L.Ed.2d 439, 42 U.S.L.W. 4979 (June 19, 1974), the Court held that the proper standard of review for a vagueness challenge to the Uniform Code of Military Justice was that applicable to criminal statutes regulating economic affairs. Applying that standard, the Court upheld an article to the Code providing for punishment of an officer for “conduct unbecoming an officer and gentleman.”
It is true, as Judge Castle has set forth in his opinion, that Parker v. Levy recognized that “[f]or the reasons which differentiate military society from civilian society . . . Congress is permitted to legislate both with greater breadth and with greater flexibility when prescribing the rules by which the former shall be governed. . . .” The Court continued : “But each of these differentiations *1195relate to how strict a test of vagueness shall be applied in judging a particular criminal statute.”
The decisions of the Supreme Court construing the vagueness doctrine have not considered the proper test for vagueness in the precise situation presented in this case. Here, we are not concerned with a penal statute which may leave the general public uncertain as to the criminal conduct it prohibits, but rather with a rule adopted by the Police Department to govern its own internal affairs and regulate the conduct of its employees. While the prohibition against vagueness extends to administrative regulations affecting conditions of governmental employment, a less stringent standard should be applied by reason of employees’ familiarity with the duties of their employment and the impracticability of defining precisely all prohibited conduct.2 “It is not feasible or necessary for the Government to spell out in detail all that conduct which will result in retaliation. The most conscientious of codes that define prohibitive conduct of employees includes ‘catchall’ clauses prohibiting employee ‘misconduct,’ ‘immorality,’ or ‘conduct unbecoming.’ ” Meehan v. Macy, 129 U.S.App.D.C. 217, 392 F.2d 822, 835 (1968), mod., 138 U.S.App.D.C. 38, 425 F.2d 469 (1968), aff’d en banc, 138 U.S. App.D.C. 41, 425 F.2d 472 (1969). “Moreover, where criminal prosecution is not at issue, a broad regulation can be given content by the authorities through its proper application.” Waters v. Peterson, 495 F.2d 91, 99 (D.C.Cir. 1973).
The less stringent standard for the military followed in Parker v. Levy was justified in part by the historical and traditional recognition of the phrase “conduct unbecoming an officer” and in part by the “fundamental necessity for obedience, and the consequent necessity for imposition of discipline.” To a large extent the same considerations apply to a police officer. Custom and usage have given content to the phrase “conduct unbecoming a member and detrimental to the service.” Certainly with respect to a member of a police department, there is need for “maintenance of discipline” and the “elimination of conduct which may reasonably be thought to have ‘impeded’ proper performance of duty.” See, Goldwasser v. Brown, 135 U.S.App. D.C. 222, 417 F.2d 1169, 1177 (1969).3
The mere fact that every offense to which any sanction may apply is not specifically defined does not, in my opinion, vest “unfettered discretion in the Chief of Police.” His discretion is confined within accepted bounds and is subject to review.
While I am not persuaded that the rule in question is vague per se, I do agree with the majority that its application under the circumstances of this case was constitutionally impermissible. On this basis I join in affirming the order of the district court.
. With respect to a penal statute, due process is denied where statutory language of “standardless sweep allows policemen, prosecutors, and juries to pursue their personal predelietions.” Smith v. Goguen, 415 U.S. 566, 94 S.Ct. 1242, 1248, 39 L.Ed.2d 605 (1974).
. In addition, governmental rules or regulations are construed by the employer or superior officer rather than being indiscriminately construed by “policemen, prosecutors, and juries.” See n. 1.
. In addition, it may be noted that in Parker v. Levy, supra, a four year prison sentence had been imposed. Here the punishment was an official reprimand which became a part of appellees’ personnel record. As noted in Waters v. Peterson, supra, “The vagueness problem is diluted, even when there has been no specific warning implementing the general regulation, when the sanction has only the ambiguous quality of reprimand.” Id. at 100.